1

By Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission (OJ 2002 L 70, p. 1), the European Union Police Mission (EUPM) was established to follow on from the United Nations International Police Task Force in Bosnia and Herzegovina.

2

The EUPM, which started on 1 January 2003, was extended a number of times, in particular by Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (OJ 2009 L 322, p. 22).

3

The applicant is an Italian judge who was seconded to the EUPM in Sarajevo (Bosnia and Herzegovina) by order of the Italian Minister for Justice of 16 October 2008, in order to perform the duties of ‘Criminal Justice Unit Adviser’ from 14 November 2008.

4

By orders of the Italian Minister of Justice of 7 April 2009 and 9 December 2009, the applicant had her secondment extended in order to perform the duties of Chief of Legal Office, respectively until 31 December 2009 and then until 31 December 2010.

5

Following the restructuring of the EUPM on 1 January 2010, the post of Chief of Legal Office held by the applicant was renamed ‘Senior Legal Advisor/Legal Counsel’.

6

By letter of 17 March 2010, the applicant and one of her colleagues, A, a Legal Officer at the EUPM, informed their supervisors of alleged irregularities in the management of the EUPM (‘the letter of 17 March 2010’). On 17 March 2010, that letter was given to the applicant’s supervisor, the Head of the Policy Unit of the EUPM. On 26 March 2010, a list of alleged irregularities referred to in the letter of 17 March 2010 was sent to the office of the Head of the EUPM with a view to a meeting with him.

7

By decision of 7 April 2010, signed by the Chief of Personnel of the EUPM, the applicant was redeployed, due to ‘operational reasons’, to the post of Criminal Justice Adviser – Prosecutor (ROBL-04) at the regional office in Banja Luka (Bosnia and Herzegovina), with effect from 19 April 2010 (‘the decision of 7 April 2010’).

8

By email of 15 April 2010, an official in the Permanent Representation of the Italian Republic to the European Union informed the applicant that the decision of 7 April 2010 had been suspended.

9

By decision of 30 April 2010 signed by the Head of the EUPM, referred to in Article 6 of Decision 2009/906, the Head of the EUPM confirmed the decision of 7 April 2010. In the decision, he stated that he himself had taken the decision of 7 April 2010 and that the operational reason for the applicant’s redeployment was based on the need for prosecutorial advice in the Banja Luka office (‘the decision of 30 April 2010’).

10

By letter of 26 May 2010, the Head of the EUPM terminated A’s contract for loss of trust and confidence.

11

On 4 June 2010, the applicant brought an action before the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio, Italy) for annulment of the decision of 7 April 2010 and compensation for the harm she had allegedly suffered. She also made an application before that court to suspend the decision of 7 April 2010.

12

The applicant was placed on sick leave from August 2010 until the end of her secondment to the EUPM.

13

The applicant’s secondment to the EUPM ended on 31 December 2010.

14

The EUPM ended during 2012.

15

Upon a complaint brought by A, the European Ombudsman concluded in her decision of 4 June 2015, that this was a case of maladministration. The Ombudsman criticised, inter alia, the lack of established procedures to deal with irregularities pointed out by whistle-blowers and ensure the latters’ protection

16

By application lodged at the Registry of the General Court on 16 June 2010, the applicant brought an action against the Council of the European Union, the European Commission and the EUPM seeking annulment of the decisions of 7 and 30 April 2010 (together, ‘the contested decisions’).

17

On 17 June 2010, the applicant also lodged an application for interim measures seeking, inter alia, the suspension of the contested decisions. By order of 22 July 2010, H v Council and Others (T‑271/10 R, not published, EU:T:2010:315), the President of the General Court dismissed that application for interim measures on the ground of lack of urgency and reserved the costs.

18

By order of 10 July 2014, H v Council and Others (T‑271/10 R, not published, ‘the initial order’, EU:T:2014:702), the General Court dismissed the action as inadmissible, taking the view that it did not have jurisdiction to determine the claim.

19

The applicant brought an appeal against the initial order, arguing, in essence, that the General Court had erred in law in declaring that it lacked jurisdiction to determine the action.

20

By judgment of 19 July 2016, H v Council and Others (C‑455/14 P, EU:C:2016:569) (‘the first appeal judgment’), the Court of Justice set aside the initial order, dismissed the action as inadmissible in so far as it was directed against the Commission and the EUPM, referred the case back to the General Court to rule on the merits of the action in so far as it was directed against the Council and reserved the costs.

21

By judgment of 11 April 2018, H v Council (T‑271/10 RENV, EU:T:2018:180) (‘the judgment after referral’) the General Court dismissed the action as unfounded.

22

The applicant brought an appeal against that judgment after referral. By judgment of 4 December 2019, H v Council (C‑413/18 P, not published, EU:C:2019:1044) (‘the second judgment on appeal’) the Court set aside the judgment after referral, and referred the case back to the General Court for it to rule on the third to fifth pleas raised in the action for annulment and the claim for damages, and reserved the costs.

23

By letters of 9 December 2019, the Registry of the General Court invited the parties to submit their written observations in accordance with Article 217(1) of the Rules of Procedure of the General Court on the conclusions to be drawn from the second judgment on appeal in the present proceedings. The applicant and Council submitted their observations within the prescribed period.

24

By decision of the President of the Court of 27 February 2020, the present case was assigned to the Third Chamber.

25

On the proposal of the Judge Rapporteur and by decision of the President of the Chamber of 5 March 2020, priority treatment was granted to this case.

26

By letters of 9 March 2020, the Court Registry invited the parties to submit supplementary written observations, in accordance with Article 217(3) of the Rules of Procedure. The parties lodged their supplementary observations by the deadline prescribed, namely 25 March 2020.

27

Following the closure of the written part of the proceedings, on 8 April 2020, the applicant lodged, a request for a hearing.

28

Acting on a proposal from the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 89 of the Rules of Procedure, requested that the parties give written answers to some questions and that the Council lodge a document. The parties complied with those measures of organisation of procedure within the prescribed period.

29

At the hearing on 1 July 2020, the parties presented oral argument and replied to the oral questions put by the Court.

30

In the application, the applicant claimed that the Court should:

31

In the reply, the applicant amended her claim to add the sum of EUR 8000 to the total amount of damages sought and to withdraw the action against the EUPM.

32

In her observations after the first referral, the applicant amended her claim so that the action is directed solely against the Council. At the same time, she amended her claim so that, first, the action no longer seeks the annulment of the contested decisions, but only that there is a ruling on their illegality and that, second, the damages also cover the loss suffered as a result of the impossibility of annulling the contested decisions. During the proceedings after the first referral back to the General Court, the applicant clarified that her claims sought, principally, the annulment of the decision of 7 April 2010 and, if necessary, that of 30 April 2010 and an award of damages as specified and, in the alternative, a declaration of the illegality of the contested decisions solely for the purpose of obtaining compensation.

33

In her observations after the second referral, the applicant repeated the claims seeking, principally, the annulment of the contested decisions and, in the alternative, a declaration of the illegality of those decisions solely for the purpose of compensation. In addition, she repeated her claim for compensation for harm suffered and for the Council to be ordered to pay the costs of the proceedings increased by interest at a rate of 8%.

34

The Council contends that the Court should:

35

In support of her action for annulment of the contested decisions, the applicant raised, in her application, five pleas in law alleging, respectively, (i) infringement of the provisions of Decision 2009/906, (ii) failure to state reasons, (iii) misuse of powers, (iv) a manifest error of assessment, and (v) psychological harassment.

36

As is stated in paragraph 21 above, the action for annulment was dismissed by the General Court in the judgment after referral as unfounded in its entirety.

37

By the second judgment on appeal, the Court of Justice, first, set aside the judgment after referral without giving further clarifications (see paragraph 1 of the operative part). Second, it referred the case back to the General Court in order for it to rule, as regards the application for annulment, on the third to fifth pleas in law. By way of reasoning (second judgment on appeal, paragraphs 102 to 117) the Court indicated, in essence, that the General Court had misinterpreted the audi alteram partem principle resulting from the requirements in relation to the right to a fair trial, in so far as, in the course of the proceedings before the General Court, the other party had not been heard on the replies and documents produced by the Council after the hearing, which elements were decisive in the General Court’s reasoning for the purpose of rejecting the third to fifth pleas advanced at first instance.

38

In that regard, it must be recalled that, under Article 61 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first sentence of Article 53 of that Statute, if the appeal is well founded and the case is referred back to the General Court for it to rule on the dispute, that Court is bound by the decision of the Court of Justice on points of law. Thus, once the Court of Justice has set aside a judgment or an order and referred the case back to the General Court, that Court is seised, pursuant to Article 215 of the Rule of Procedure, of the case by the judgment of the Court of Justice and must rule again on all the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the Court of Justice and the considerations on which those elements are essentially founded, as those elements have acquired the authority of res judicata (see judgment of 3 July 2018, Keramag Keramische Werke and Others v Commission, T‑379/10 RENV and T‑381/10 RENV, not published, EU:T:2018:400, paragraph 26 and the case-law cited).

39

Accordingly, and having regard in particular to the wording of paragraph 2 of the operative part of the second judgment on appeal, it is appropriate to examine, first of all, the third to fifth pleas raised in the application for annulment, before deciding, if necessary, whether the subject matter of the dispute also covers the first two pleas raised in the application for annulment, as the applicant submits in response to a question raised in writing by the Court.

40

In support of the third plea, the applicant submits, in essence, that the decision to redeploy and to ‘downgrade’ her was not taken in the interests of the service and had no other objective than to psychologically harass and offend her. She states that the redeployment procedure and regrading was therefore pursued for purposes other than those laid down in law. In that regard, she specifies that there was no real need to assign a Prosecutor to Banja Luka urgently, that a procedure was immediately launched to recruit a new Senior Legal Advisor/Legal Counsel (previously Chief of Legal Office) to Sarajevo to replace her and that, at the time of her redeployment to Banja Luka, a call for applications for the position of Criminal Justice Expert in Banja Luka was still ongoing. In addition, she submits that, by the decision of 7 April 2010, she was also ‘downgraded’, in so far as the duties of the Criminal Justice Expert in a regional office were, having regard to the structure of the EUPM and the tasks taken on, inferior to those of the Senior Legal Advisor/Legal Counsel performed in the EUPM headquarters. She also submitted that the redeployment and the ‘downgrading’ were reprisals for sending the letter of 17 March 2010. In support of the fifth plea, the applicant submits that the decision of 7 April 2010 was adopted in order to harass her psychologically, as she was not only redeployed without there being any legitimate ground for doing so, but she was also ‘downgraded’. She adds that her redeployment and her ‘downgrading’ were accompanied by a series of offensive acts, including restrictions on her telephone access, a ‘very aggressive’ email inviting her to clear her office, difficulties in obtaining leave that were not justified, and her exclusion from the main activities of the EUPM during her secondment. In the reply, she set out further acts that she regarded as acts of harassment.

41

The Council disputes the merits of the applicant’s arguments. It observes that the applicant’s statement that she was ‘downgraded’ as a result of her redeployment was not well founded in fact or in law. The applicant’s redeployment in April 2010 from Sarajevo to Banja Luka did not change either her administrative status nor the payment of her remuneration and allowances. It states that the applicant does not enjoy any right to a particular position in the Mission and has not produced any more detailed factual indication that could give rise to the conclusion that she was downgraded as a result of her redeployment. In addition, the Council submits that the applicant has not produced any evidence that proves that the redeployment decision was taken with the sole or main aim of psychologically harassing and offending her. Furthermore, the Council disputes the argument that there was no objective interest in having a Prosecutor available at Banja Luka and that the redeployment had taken place whilst a selection procedure for the post of Criminal Justice Expert was ongoing. It also submits that the General Court does not have jurisdiction to rule on the question of whether the deployment of a prosecutor in the regional office at Banja Luka met an operational need. The Council considers that there is no evidence showing that the applicant was the subject of psychological harassment.

42

As a preliminary matter, first, it must be observed that, while the decisions adopted by the competent authorities of the EUPM relating to the allocation of the human resources assigned to it by the Member States and the EU institutions for the purpose of performing activities undertaken at theatre level have an operational aspect falling within the Common Foreign and Security Policy (CFSP), they also constitute, by their very essence, acts of staff management, similar to all decisions adopted by the EU institutions in the exercise of their competences (first judgment on appeal, paragraph 54).

43

Furthermore, the contested decisions were taken in a context in which the EU institutions enjoy a broad discretion (first judgment on appeal, paragraph 69).

44

Second, it must be recalled that, in the case-law on the EU civil service, it has been recognised that it is possible to invoke psychological harassment in support of a claim for annulment that is not directed against a request for assistance lodged by a staff member on the ground that that person considers that they were the victim of harassment, but is directed against other decisions taken by the administration (see, to that effect, judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraphs 67 and 70 to 72). Since staff members seconded by the EU institution, whose status is governed by the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and those seconded by Member States, such as the applicant, are subject to the same rules so far as concerns the performance of their duties ‘at theatre level’ (see, to that effect, the first judgment on appeal, paragraph 50), it is necessary to apply that case-law by analogy to the claim directed against the decisions of the Head of the EUPM who decided to redeploy a staff member seconded by a Member State.

45

It is also clear from the case-law that the existence of a context of psychological harassment may also be taken into account where the author of the harassment is also the signatory of the contested decision in order to establish whether that decision was adopted with the aim of harming the staff member and is therefore vitiated by a misuse of power. Thus, with regard to an allegation of psychological harassment made in support of a claim directed against a redeployment decision, that decision may be vitiated by a misuse of power if it was adopted in order to undermine the personality, dignity or physical or psychological integrity of the staff member (see, by analogy, judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraphs 71 and 72).

46

In the present case it must be noted that the matters that the applicant sets out as forming the fifth plea, alleging psychological harassment, constitute, at least in part, the factual basis for the third plea, alleging misuse of powers, in the context of which she alleges that the Head of the EUPM misused his power with the aim of harassing and offending her.

47

In those circumstances, it is necessary to analyse the third and fifth pleas together.

48

According to settled case-law, the concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated. In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged (see order of 19 December 2013, da Silva Tenreiro v Commission, T‑32/13 P, EU:T:2013:721, paragraphs 31 to 33 and the case-law cited).

49

It should also be recalled that the case-law recognises that the EU institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided such assignment is made in the interest of the service and conforms with the principle of assignment to an equivalent post (see judgment of 25 July 2006, Fries Guggenheim v Cedefop, T‑373/04, EU:T:2006:224, paragraph 67 and the case-law cited). In those circumstances, review by the Court is confined to determining whether the institution involved has remained within reasonable bounds and has not used its power in a manifestly incorrect way (see judgment of 25 July 2006, Fries Guggenheim v Cedefop, T‑373/04, EU:T:2006:224, paragraph 68 and the case-law cited).

50

Furthermore, where a decision has not been held to be contrary to the interest of the service, there can be no question of a misuse of powers (see judgment of 7 February 2007, Clotuche v Commission, T‑339/03, EU:T:2007:36, paragraph 126 and the case-law cited).

51

In the present case, the justification given in the decision of 7 April 2010 for the redeployment of the applicant, with effect from 19 April 2010, from the position of Senior Legal Advisor/Legal Counsel, that she held at the Headquarters of the EUPM in Sarajevo, to the position of Criminal Justice Adviser – Prosecutor at the regional office of the EUPM in Banja Luka was ‘operational reasons’. That justification was supplemented in the decision of 30 April 2010, which stated that the operational reason for the applicant’s redeployment was the need to have the prosecutorial advice available in the Banja Luka office.

52

It is in the light of that justification and the principles set out above that the question of whether the Head of the EUPM misused his powers in redeploying the applicant within the EUPM must be examined.

53

The applicant advances, in essence, three lines of argument by which she seeks to show that the contested decisions are vitiated by a misuse of powers. She submits, first, that her redeployment was not decided in the interest of the service, second, that her redeployment was carried out with the aim of harassing her and, third, her redeployment was decided as a reaction to the criticism made of the EUPM management and was therefore punitive.

54

It is appropriate first to examine if the applicant’s argument alleging that her redeployment had a punitive nature permits a finding of a misuse of power.

55

In that regard, it should be recalled that, by virtue of the case-law referred to in paragraph 45 above, the redeployment decision would be vitiated by a misuse of powers if it was adopted in a context of psychological harassment and in order to undermine the personality, dignity or physical or psychological integrity of the staff member who was redeployed. That is also the case where the redeployment equates, in reality, to a punishment of the applicant for her criticisms of the management of the EUPM. Such circumstances, if they are established, would constitute a misuse of powers, in so far as the Head of the EUPM would have used his powers for a purpose other than that for which those powers were conferred on him and, furthermore, the redeployment could not be regarded as being in the interest of the service. Hence, it is appropriate to examine whether the decisive reasons for the redeployment of the applicant were the reasons stated in the contested decisions, and relate to the interest of the service, or whether those decisions were adopted to achieve other, non-legitimate, purposes than those stated.

56

In the present case, it must be observed that the aim pursued by the redeployment of the applicant, namely the need to have the advice of a prosecutor available in the Banja Luka office, corresponds, formally, to the task of the EUPM as stated in Article 2 of Decision 2009/906, namely to support the relevant law enforcement agencies in Bosnia and Herzegovina in the fight against organised crime and corruption. It must also be stated that the Banja Luka post, to which the applicant was redeployed (Criminal Justice Adviser – Prosecutor), identified as post ROBL-04, was vacant at the time the decision of 7 April 2010 was adopted, under the name Criminal Justice Expert and, according to the call for applications, was to be filled ‘as soon as possible’. Furthermore, it is not disputed that the applicant’s professional qualifications and experience corresponded to the profile sought. In addition, it is explicitly stated in the applicant’s application for the post of Chief of Legal Office that she would be willing to serve the EUPM in a position other than that for which the application was made, as the Council submits.

57

However, if must be observed that the indications made by the applicant and the evidence in the file are sufficiently specific, objective and consistent to allow it to be concluded that it is apparent that the contested decisions were taken for reasons other than the need to have the applicant’s services as a prosecutor available in the Banja Luka office and that, by her redeployment, the Head of the EUPM principally pursued an aim other than that of supporting the relevant law enforcement agencies in Bosnia and Herzegovina in the fight against organised crime and corruption.

58

In that regard, first, it should be recalled that, by letter of 17 March 2010, the applicant and one of her colleagues, A, informed their supervisors of alleged irregularities in the management of the EUPM. On 17 March 2010, that letter was given to the applicant’s supervisor, the Head of the Policy Unit of the EUPM, which the Council does not dispute. On 26 March 2010 a list of irregularities, referred to in the letter of 17 March 2010, was sent by the applicant’s assistant to the office of the Head of the EUPM with a view to a meeting between the latter, A and the applicant, which the Council does not dispute. Thus, the decision of 7 April 2010 was taken only three weeks after the letter of 17 March 2010 had been sent to the applicant’s supervisor, and 12 days after the list of irregularities was sent to the Head of the EUPM.

59

Secondly, it must be observed that the decision of 7 April 2010 was taken before an investigation had been carried out into the questions raised by the applicant and A in the letter of 17 March 2010.

60

Thirdly, it is clear from the case file that the meeting between the applicant, A, and the Head of the EUPM was scheduled for the 14 April 2010. According to the applicant, that meeting did not take place, which the Council does not refute.

61

Fourthly, it must be observed that the Head of the EUPM decided only on 22 April 2010, following an exchange of correspondence between him and A, to open an internal investigation into the allegations made by her in her emails of 5 and of 21 April 2010. In that context, it must be stated that the Head of the EUPM referred in that decision, which the applicant produced as an annex to her observations on the second judgment on appeal, to a list sent by the Legal Office. It is reasonable to infer that he was referring to the list sent on 26 March 2010 by the applicant’s assistant to the office of the Head of the EUPM (see paragraph 58 above). In addition, it must be observed that, in that decision to open an investigation, the Head of the EUPM recalled the wording of his letter of 19 April 2010, according to which A had, in her email of 5 April 2010, made serious and unsubstantiated allegations against the management team of the EUPM. Furthermore, it is clear from that letter of 19 April 2010, produced by the Council in response to a measure of organisation of the procedure, that A’s email of 5 April 2010 and the lack of managerial reaction to that email by the applicant as A’s supervisor, once again seriously harmed the relationship between the Legal Office and the Administration and Support Department.

62

Fifthly, it must be observed that, by decision of 30 April 2010, the Head of the EUPM confirmed the applicant’s redeployment to Banja Luka before the outcome of the internal investigation referred to in paragraph 61 above was known and before a specific enquiry had been carried out into the questions raised by the applicant and A in the letter of 17 March 2010.

63

Sixthly, it is clear from the case file that, by letter of 26 May 2010, the Head of the EUPM terminated A’s contract for loss of trust and confidence. In that regard, it should be noted that, in response to A’s complaint, the Ombudsman concluded, in her decision of 4 June 2015, that there had been an instance of maladministration. The Ombudsman criticised the fact that A’s contract had been terminated eight days after she had sent a letter to the Director of the Civilian Planning and Conduct Capability, within the Secretariat General of the Council, as the Commander of the Civilian Operations of the EUPM, concerning alleged irregularities committed within the EUPM. In addition, the Ombudsman criticised the lack of established procedures for dealing with irregularities indicated by whistle-blowers to ensure their protection. In that context, she criticised the fact that in the present case the investigation had been conducted on an ad hoc basis.

64

Seventhly, the documents in the case file do not permit the conclusion that, at the date of adoption of the decision of 7 April 2010, the selection procedure which had been commenced to fill the post of Criminal Justice Expert had been unsuccessful, and that the decision to redeploy the applicant had been taken in the context of a lack of eligible candidates.

65

It is clear from an undated table, provided by the Council after the hearing organised as part of the proceedings conducted after the first referral back by the Court of Justice that, of the two candidates who applied for the post of Criminal Justice Expert only one candidate, who was of Italian nationality, was eligible, but was rejected on the ground that another candidate better fitted the profile required. That table does not show however that there was another candidate that could be regarded as eligible for the post in question. Furthermore the Council states, in its observations on the second judgment on appeal, that none of the candidates who took part in the selection procedure fitted the profile concerned as well as the applicant did.

66

Furthermore, the report of 23 April 2010, sent by the Head of the EUPM to the Commander of Civil Operations of the EUPM on the result of the various EUPM calls for applications, in addition to the fact that it is later than the decision of 7 April 2010, merely indicates that it was not possible to fill six posts and that three were the subject of an extension or ‘other operational decisions’.

67

In those circumstances, contrary to the Council’s written submissions, the procedure cannot be regarded as not having succeeded owing to a lack of candidates. In fact, it is more plausible to consider, on the basis of the information in the case file, that that procedure had not succeeded because it was decided to redeploy the applicant to the post in question.

68

The facts the Council relied on, namely that the two candidates for the post of Criminal Justice Expert did not make that post their first choice and that they were selected for other posts within the EUPM, in accordance with their preferences, are incapable of demonstrating that the selection procedure for that post was no longer ongoing at the time the decision of 7 April 2010 was adopted. Although it cannot be refuted, on the basis of the documents in the case file, that the two candidates in question had not chosen the post of Criminal Justice Expert as their first choice, it is not established, given the lack of evidence in support of such a finding, that the recruitment of those candidates to other posts was decided before the decision of 7 April 2010 had been taken. In addition, and in any event, as regards the candidate held to be eligible for the post of Criminal Justice Expert, his personal preferences should not have been determinative in order to reach the conclusion that, at the date of the applicant’s redeployment, there was no appropriate candidate to fill the said post.

69

In addition, at the hearing the Council acknowledged that the selection procedure for the post of Criminal Justice Expert had not concluded as of the date on which the decision to redeploy the applicant to Banja Luka had been adopted. To the extent that the Council submitted that, on 7 April 2010, the applications for the post were already known, on the ground that the deadline for lodging an application was 23 March 2010, it suffices to observe that it is not clear from the case file that that information was brought to the attention of the Head of the EUPM before he took the decision of 7 April 2010.

70

It is true that there may be cases where the redeployment of a staff member to another post proves necessary before awaiting the outcome of a selection procedure. However, the Council has not put forward any information to enable the reasons why, in this case, the Head of the EUPM had proceeded in that way, to be understood. Furthermore, the call for applicants for the post of Criminal Justice Expert was sent to Member States only a little over one month before the date of the redeployment decision at issue, namely on the 2 March 2010, with a deadline for lodging of applications fixed at 23 March 2010. In addition, it is not clear from the case file that the selection procedure was cancelled before the decision of 7 April 2010 had been adopted.

71

Therefore, in the present case, the Head of the EUPM should have waited for the formal outcome of the selection procedure which had commenced for the post of Criminal Justice Expert before adopting, if appropriate, the decision of 7 April 2010.

72

Eighthly, the applicant’s allegation that the Head of the EUPM took the decision to redeploy her to no matter which other post in the EUPM is substantiated, at least indirectly, by the content of an exchange of emails with the Head of the Policy Unit of the EUPM, who was his supervisor and with the Head of the Banja Luka Regional Office. In fact, it is clear from the reply of the Head of the Policy Unit of the EUPM to the applicant’s email of 7 April 2010 that the posts available in Bosnia Herzegovina for the redeployment were in Banja Luka, Mostar and Tuzla. Furthermore, it is clear from the reply of the Head of the Banja Luka Regional Office to the applicant’s email of 8 April 2010 that he had not asked for a call to be made for another prosecutor and that he had no urgent need of her presence in Banja Luka.

73

Ninthly, it must be noted that the applicant’s redeployment to Banja Luka was made against her will. Moreover, the case file does not show that she was put in a position to be able to submit her observations before the decision of 7 April 2010 was adopted.

74

Tenthly, even if the applicant’s redeployment from Sarajevo to Banja Luka did not alter her administrative status or her remuneration or allowances, it remains the case that that redeployment, decided on 7 April 2010, with effect formally from 19 April 2010, and in fact from 26 April 2010, thus within a short time to another place, and which involved a change of tasks to perform, without that decision being accompanied by detailed explanations, must have been perceived by the applicant as a punishment.

75

That impression must have been given to the applicant even more strongly having regard to the fact that the post to which she was redeployed amounted to redeployment from a ‘senior’ post to a ‘non senior’ post. Contrary to the Council’s submission, it is clear from the case file that, within the EUPM, there were posts at several levels, which included, on the one hand, posts classified as ‘senior’ such as ‘Senior Legal Advisor/Legal Counsel’, ‘Senior Criminal Justice Expert’ and ‘Senior Economic Crime Expert’ and, on the other hand, those corresponding to a lower level and involving fewer responsibilities (in particular, management and coordination), such as ‘Criminal Justice Expert’ and ‘Economic Crime Expert’. It follows that the applicant could, as a matter of fact, perceive her redeployment from the post of Senior Legal Advisor/Legal Counsel in the Headquarters of the EUPM in Sarajevo, to which she had specifically applied at the time when she performed the duties of Criminal Justice Unit Adviser also at Sarajevo, to the post of Criminal Justice Adviser – Prosecutor at the Regional Office of the EUPM in Banja Luka as an assignment to a post of an inferior level, which held less professional interest for her, and therefore as a punishment.

76

Moreover, it should also be remarked that any official who, even before the entry into force of Article 22a of the Staff Regulations, took the initiative of alerting their superior to the existence of unlawful activity or breaches of statutory obligations of which they were aware, and which could adversely affect the EU’s financial interests, had already been entitled to the protection of the institution for which they worked against any retaliation resulting from such disclosure and against any prejudicial effects on the part of that institution, provided that they acted in good faith (judgment of 4 April 2019, Rodriguez Prieto v Commission, T‑61/18, EU:T:2019:217, paragraph 71). It cannot be different for a member of staff of the EUPM, such as the applicant, to whom those principles apply mutatis mutandis (see the case-law referred to in paragraph 44 above).

77

In those circumstances, the matters referred to above, their timing and the context in which they occurred permit the conclusion that the decisive reason for the adoption of the contested decisions was not the interest of the service consisting of the need to have the applicant’s services available in Banja Luka in the post of Criminal Justice Adviser – Prosecutor, but the fact that she, together with A, had denounced alleged irregularities as regards the management of the EUPM. Therefore, it must be held that the contested decisions are vitiated by a misuse of powers, on the ground that they were taken to achieve other, non-legitimate purposes than those declared and that the Head of the EUPM therefore used his powers for a purpose other than that for which they had been conferred on him.

78

The fact referred to by the Council that the investigation conducted on the decision of the Director of Civilian Planning and Conduct Capability following a letter from A (see paragraph 63 above) did not permit the existence of irregularities to be discerned cannot undermine the conclusion in paragraph 77 above. The result of that investigation is irrelevant to the question as to whether the applicant’s redeployment was connected with the letter of 17 March 2010 and was punitive in nature as a result of the fact that she had exposed alleged irregularities in the management of the EUPM. In addition, the Council did not at any time submit that the applicant had not acted in good faith in giving that letter to her supervisor.

79

Moreover, to the extent that the Council submits that the applicant declared that she was willing to serve the EUPM in a post other than that referred to in her application for the post of Chief of Legal Office, it suffices to observe that such a declaration, which is in the case file, cannot justify a redeployment decided in the context of the exposure of alleged irregularities committed within the EUPM. The fact that the applicant could have asked the Italian authorities to terminate her secondment is also not capable of confirming the legality of her redeployment. Besides the fact that such a possibility only occurred following her redeployment, it could not render a redeployment decision that was punitive, or even abusive, legitimate.

80

Next, the fact, relied on by the Council, that the post of Chief of Legal Office, occupied by the applicant in Sarajevo, was renamed Senior Legal Advisor/Legal Counsel with effect from 1 January 2010, following the EUPM’s restructuring, does not permit it to be established that there had no longer been a need for her services in the Headquarters of the EUPM in Sarajevo or that the contested decisions had been adopted solely in the interest of the service.

81

In addition, to the extent that the Council submits, in essence, that the alleged oral exchanges between the applicant and the Deputy Head of the EUPM in April 2010 referred to in the applicant’s observations of 17 February 2020, were new facts and are therefore inadmissible, it suffices to observe that the application had, in essence, already relied upon such conversations.

82

Having regard to all the foregoing, the plea alleging misuse of powers must be upheld. The contested decisions must therefore be annulled, without it being necessary to rule on the other parts of the third and fifth pleas, and the applicant’s other pleas.

83

The Council, without formally raising a plea of inadmissibility, submits in the rejoinder that the applicant had not applied for, nor obtained, permission to extend the scope of her action to include the claim of damages in the sum of EUR 8000 by way of compensation for material harm that she was alleged to have suffered because, owing to sick leave, she was unable to benefit from the missionary allowance, which the applicant made in the reply for the first time.

84

In that regard, it should be borne in mind that, in accordance with Article 76(e) of the Rules of Procedure, an applicant is required to set out in the application the form of order sought. Thus, in principle, only the forms of order set out in the originating application may be taken into consideration and the substance of the application must be examined solely with reference to the orders sought (judgment of 24 October 2018, Epsilon International v Commission, T‑477/16, not published, EU:T:2018:714, paragraph 45; see also, to that effect, judgments of 8 July 1965, Krawczynski v Commission, 83/63, EU:C:1965:70, p. 785, and of 25 September 1979, Commission v France, 232/78, EU:C:1979:215, paragraph 3).

85

Article 84(1) of the Rules of Procedure allows new pleas in law to be introduced on condition that they are based on matters of law or of fact which came to light in the course of the procedure. It is apparent from the case-law that that condition governs a fortiori any amendment to the forms of order sought and that, in the absence of matters of law or of fact which came to light in the course of the written procedure, the forms of order sought in the application may alone be taken into consideration (judgments of 13 September 2013, Berliner Institut für Vergleichende Sozialforschung v Commission, T‑73/08, not published, EU:T:2013:433, paragraph 43, and of 24 October 2018, Epsilon International v Commission, T‑477/16, not published, EU:T:2018:714, paragraph 46).

86

Furthermore, it is settled case-law that a plea or an argument which that amplifies a plea put forward previously, whether directly or by implication, in the original application and which is closely connected therewith must be declared admissible (see judgment of 8 November 2018, Pro NGO! v Commission, T‑454/17, EU:T:2018:755, paragraph 70 and the case-law cited).

87

In the present case, it is true that, as the Council submits, the claim for compensation in question was not made in the application. However, the material loss allegedly suffered by the applicant is within the factual context that arose after the application was lodged, namely 16 June 2010, while being connected, according to the applicant, with the acts of psychological harassment she had allegedly suffered in the EUPM and had set out in the application. First, the applicant refers to medical certificates that are later than the date on which the application was lodged to establish that she was on sick leave with effect from August 2010 until the end of her secondment to the EUPM, and that that sick leave had to be attributed to episodes of harassment that she had allegedly suffered there. Second, she relies on emails from February and March 2011 to prove that she could not benefit from part of the missionary allowance for 2010 due to her absence from work connected with her sick leave. Those matters arose during the written part of the procedure in Case T‑271/10, between the lodging of the application and the reply, and were invoked by the applicant in the reply, in which the claim for compensation in question was also submitted.

88

In those circumstances, it would be contrary to the proper administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application to claim damages to compensate her for alleged material loss she suffered as a result of the alleged psychological harassment. Therefore, that claim is admissible.

89

Furthermore, to the extent that the Council submits that some of the facts referred to in the applicant’s observations on the second judgment on appeal are new and, therefore, inadmissible, it must be observed that, in the paragraph the Council refers to, the applicant submits, in essence, an argument drawn from an order of an Italian court of 21 January 2020 which seeks to establish the contested decisions caused non-material damage, in essence, to her professional reputation. To that end, she produces the decision in question ordering, upon her complaint, the prosecution of the author of an article published in April 2011. She also produces that article which, according to her, concerns the facts of the present case and is defamatory of her.

90

Pursuant to Article 85(3) of the Rules of Procedure, the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the Court’s decision to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified. Those principles apply to the present proceedings after the setting aside of the judgment and the referral back, to the extent that they constitute the partial extension of the same litigation which began with the lodging of the application (see, to that effect, judgment of 13 December 2018, Kakol v Commission, T‑641/16 RENV and T‑137/17, not published, EU:T:2018:958, paragraph 70).

91

In the present case, it is common ground that the order produced by the applicant as an annex to her observations of 17 February 2020 could not have been submitted earlier, since that order dates from January 2020. Therefore, taking into account the recent nature of that order, its production is admissible (see, to that effect, judgment of 23 April 2018, Verein Deutsche Sprache v Commission, T‑468/16, not published, EU:T:2018:207, paragraph 20).

92

On the other hand, as regards the article published in April 2011, the applicant does not rely on any particular circumstances to justify its production, as an annex to her observations on the second judgment on appeal, several years after its publication. In those circumstances, that item of evidence must be declared inadmissible.

93

The applicant submits that the illegal conduct of the EUPM caused her harm. First, she alleges that she suffered non-material loss resulting from the damage caused by her redeployment and her ‘downgrading’ to her health and her integrity, to her dignity and to her professional reputation. Second, she suffered non-material loss owing to the acts of harassment suffered in the EUPM. In that context, she refers to harm to her health. She considers that the amount of damages should be assessed, ex aequo et bono, in the sum of EUR 30000. She states that an award of damages remains the only way of compensating her for the illegality of the contested decisions. Furthermore, she claims, in the reply, compensation for loss suffered because, due to sick leave, she was unable to benefit from the missionary allowance. That loss amounts to EUR 8000.

94

The Council observes that the application does not contain any evidence of fact regarding the existence of loss caused to the applicant’s integrity. As regards whether her health was harmed, the Council observes that the applicant does not demonstrate any causal link between her redeployment and the state of her health. It submits, furthermore, that the applicant included new elements in her reply which rest on events that had taken place after her redeployment and could not therefore be the basis for establishing the necessary causal link with the contested decisions. As regards the claim for damages in the sum of EUR 8000, it submits that the applicant has not established a direct and certain causal link between the harm alleged and the redeployment decision. It adds that the amount of missionary allowances had not changed with the redeployment of the applicant to Banja Luka. In addition, it disputes the notion that the lack of effectiveness of an annulment of the contested decisions entails a right to compensation for an additional loss.

95

As a preliminary matter, it should be noted that the applicant’s claim for compensation rests on the rules for non-contractual liability of the European Union for alleged unlawful conduct by its institutions.

96

In accordance with settled case-law, the European Union may incur non-contractual liability, within the meaning of the second paragraph of Article 340 TFEU, only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 32 and the case-law cited).

97

In the present case, in the first place, as regards the applicant’s claim for compensation for non-material damage caused by her redeployment, it should be recalled that, according to settled case-law, where claims for compensation are based on the unlawfulness of the annulled measure, the annulment ordered by the Court constitutes in itself appropriate and, in principle, sufficient compensation for any non-material damage which the applicant may have suffered (see judgment of 18 September 2015, Wahlström v Frontex, T‑653/13 P, EU:T:2015:652, paragraph 82 and the case-law cited).

98

However, it has been held that where the annulment of a measure has no practical effect, it cannot in itself constitute appropriate and sufficient compensation for any non-material damage caused by the annulled measure (judgment of 18 September 2015, Wahlström v Frontex, T‑653/13 P, EU:T:2015:652, paragraph 83).

99

In the present case, since the applicant’s secondment ended at the close of 2010 and the EUPM’s mandate expired in 2012, the annulment of the contested decisions would be devoid of any practical effect and would not constitute appropriate and sufficient compensation for the non-material damage suffered by the applicant.

100

It is therefore appropriate to determine whether the illegality of the contested decisions, as found in paragraphs 48 to 82 above, amounts to a sufficiently serious breach of a rule of law intended to confer rights on individuals and whether the applicant has shown that there is loss connected with that illegality.

101

As regards the condition that there must be illegal conduct, it should be recalled that, according to well-established case-law, a finding of the unlawfulness of a legal measure is not enough, however regrettable that unlawfulness may be, for it to be held that the condition for the incurring of the European Union’s non-contractual liability relating to the unlawfulness of the institutions’ alleged conduct has been satisfied (see judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 50 and the case-law cited). That condition requires a sufficiently serious breach of a rule of law intended to confer rights on individuals. That test is satisfied where a breach is established which implies that the institution concerned manifestly and gravely disregarded the limits set on its discretion, the factors to be taken into consideration in that connection being, inter alia, the degree of clarity and precision of the rule breached and the measure of discretion left by that rule to the EU authorities (see judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraphs 29 and 30, and the case-law cited).

102

In the present case, it is established that the contested decisions are vitiated by a misuse of powers on the ground that they were taken for other, non-legitimate, purposes than those declared, namely in order to punish the applicant for having denounced, together with one of her colleagues, the alleged irregularities as regards the management of the EUPM.

103

Such an unlawful act, which was committed in a context in which the institutions of the European Union enjoy a wide discretion and review by the court is limited (see paragraphs 43 and 49 above), must be regarded as particularly serious and as constituting a sufficiently serious breach which gives rise to liability on the part of the European Union.

104

In any event, in the present case, the finding of illegality is sufficient to regard the first of the three conditions necessary for the liability of the European Union to be incurred in respect of damages caused to a seconded national expert as having been met.

105

Disputes involving the civil service under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, including those in which compensation for damage caused to an official or other member of staff is sought, are governed by particular and special rules that differ from those arising from the general principles on the non-contractual liability of the European Union under Article 268 TFEU and the second paragraph of Article 340 TFEU. It is clear from the Staff Regulations in particular that, unlike any other individual, an official or other member of the Union’s staff is connected to the institution or body to which they belong by a legal relationship of employment involving a balance of specific reciprocal rights and obligations, which is reflected in the institution’s duty to have regard for the welfare of the person concerned (see judgment of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 46 and the case-law cited). It follows that the finding of unlawfulness alone is sufficient to satisfy the first of the three conditions necessary to incur the liability of the European Union for damage caused to its officials and servants due to the infringement of the law governing the European Union civil service (judgment of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 45). For the reasons stated in paragraph 44 above, those principles are applicable mutatis mutandis in a case such as the present.

106

It follows that it is necessary to examine, at a second stage, whether the illegality found caused the applicant actual and certain non-material damage, while also verifying whether that damage is the direct consequence of those breaches (see, to that effect, judgment of 4 April 2017, Médiateur v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 127 and the case-law cited). In that regard, it must be stated that, while the submission of evidence is not necessarily regarded as a requirement for the recognition of non-material damage, it is for the applicant to at least establish that the conduct alleged against the institution concerned was capable of causing him or her such damage (judgment of 16 July 2009, SELEXSistemi Integrati v Commission, C‑481/07 P, not published, EU:C:2009:461, paragraph 38).

107

The applicant submits that she suffered non-material loss resulting from the damage caused, by her redeployment, to her health, and her integrity, to her dignity and her professional reputation. She also invokes feelings of injustice and anxiety brought on by the need to have recourse to legal proceedings in order to have her rights recognised. In addition, she recalls that her redeployment and ‘downgrading’ were the direct consequence of the denunciation of alleged dysfunctions within the EUPM.

108

In that regard, it must be observed that a redeployment, from a ‘senior’ post to a ‘non-senior’ post that takes place within a context of the denunciation of alleged dysfunctions and that is held to be illegal on the ground that it is vitiated by a misuse of powers is capable of giving rise for the person concerned to feelings, inter alia, of harm to their integrity and dignity, injustice and anxiety that amount to non-material damage eligible for compensation. Furthermore, such harm is directly connected to the illegality that vitiates the contested decisions and that illegality constitutes the decisive cause of such harm. In addition, that finding is corroborated by a medical certificate of 23 August 2010, produced by the applicant, which shows in particular that her redeployment and the circumstances surrounding it had an impact on her mental health.

109

Therefore, taking into account the circumstances of the case, it is appropriate to award EUR 30000, assessed ex aequo et bono, as an appropriate compensation for the non-material damage suffered by the applicant as a result of her redeployment to Banja Luka by the contested decisions.

110

In the second place, as regards the applicant’s claim for compensation for non-material damage resulting from the psychological harassment of her, she refers, in addition to her redeployment and ‘downgrading’ by the contested decisions, to other acts both before and after those decisions. The applicant refers to her exclusion from the main activities of the EUPM during her secondment as an indication of a context of harassment prior to the contested decisions. As indications of such a context after the contested decisions, she refers to restrictions to her telephone access at the headquarters of the EUPM, a ‘very aggressive’ email requesting that she empty her office and unjustified difficulties in obtaining leave. In the reply, she set out further acts that she regarded as acts of harassment, such as the partial cancellation of a work trip, the reduction of her leave balance, her exclusion from Gender Coordination Board, and the failure to extend her mandate as chairperson of the Arbitration Tribunal.

111

On the assumption that the adoption of the contested decisions may be classified in itself as psychological harassment, it suffices to observe that appropriate compensation has already been granted for the overall non-material damage suffered by the applicant as a result of her redeployment to Banja Luka by the contested decisions (see paragraphs 97 to 109 above). The negative effects of that decision on the applicant’s mental health were also taken into consideration in that context. The other facts referred to by the applicant do not – on the basis of the evidence provided – permit it to be established that the contested decisions were part of a series of acts of psychological harassment. In those circumstances, additional compensation for non-material damage resulting from psychological harassment of the applicant cannot be granted.

112

In the third place, as regards the claim for compensation for material loss in the sum of EUR 8000 the applicant claims to have suffered, owing to the sick leave taken due to psychological harassment, she was unable to benefit from the missionary allowance, it must be held that the Council cannot incur non-contractual liability in that regard.

113

The applicant’s arguments are insufficiently clear and precise to permit a finding that the conditions to which a finding of non-contractual liability are subject are satisfied in the present case. More specifically, the evidence submitted by the applicant does not enable a causal link to be established between her alleged psychological harassment and the health problems that led to her taking sick leave in the period during which she did not benefit from the missionary allowance. To the extent that the applicant refers to a medical certificate, it must be held that, while it shows that the applicant suffered from an ‘depressive disorder’ caused by psychological harassment at her workplace, it does not however permit it to be established that that disorder was caused by psychological harassment, since in order to conclude that there was psychological harassment, the author of the certificate necessarily relied exclusively on the description that the applicant had given of her working conditions in the EUPM (see, to that effect, judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 127 and the case-law cited). Furthermore, as has already been held in paragraph 111 above, the applicant has not proven that there were circumstances that could be regarded as revealing that there was a context of psychological harassment. In addition, the applicant states that she refused to sign a declaration of the continuity of her service during her secondment, thereby renouncing the missionary allowance without proving that she could not benefit from the allowance in question during her sick leave.

114

It follows from all the foregoing that the claim for compensation must be upheld to the extent that it covers compensation for non-material damage caused by the contested decisions and rejected for the remainder.

115

The applicant requested the adoption of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure of the General Court of 2 May 1991. By those requests, the applicant sought the production of a letter allegedly addressed by the Commander of the Civilian Operations of the EUPM to the Italian authorities concerning her unjustified absence from the EUPM and the production of documents relating to the policy of the EUPM regarding vaccination which was in force in November 2009.

116

Since there is no relevant indication in those requests that permits their usefulness for the outcome of this litigation to be assessed, they must be rejected.

117

Pursuant to Article 219 of the Rules of Procedure, in decisions of the General Court given after its decision has been set aside and the case referred back to it, it is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice. In so far as, in the second judgment on appeal, the Court of Justice set aside the judgment after referral and reserved the costs, it is for the General Court to rule, in the present case, on all of the costs incurred in the proceedings engaged before it, including in the interim proceedings and in the proceedings after the first referral, as well as the costs incurred in the appeal proceedings in Cases C‑455/14 P and C‑413/18 P.

118

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

119

Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing their own costs, pay a proportion of the costs of the other party. Furthermore, according to Article 135(1) of the Rules of Procedure if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing their own costs, or even that they are not to be ordered to pay any costs.

120

In the present case, having regard to all the circumstances of the dispute and in particular the fact that the Council has been unsuccessful, after several rulings, in the fundamental part of its forms of order sought, the Council must be ordered to bear the costs incurred by the applicant and by itself in the present proceedings and also the proceedings in cases T‑271/10, T‑271/10 R, T‑271/10 RENV, C‑455/14 P and C‑413/18 P. As regards the applicant’s application for the costs to be increased by interest at a rate of 8%, it suffices to state that such an application is premature and must be decided, if necessary, in the context of proceedings for the taxation of costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby: