1

By her action based on Article 270 TFEU, the applicant, SU, seeks, first, annulment of the decision of the European Insurance and Occupational Pensions Authority (EIOPA) of 15 July 2020 by which the latter did not renew her contract and, so far as necessary, of the decision of 11 February 2021 by which it rejected her complaint and, secondly, compensation for the material and non-material damage she claims to have suffered as a result.

2

On 15 January 2015, the applicant was recruited by EIOPA, on the basis of a three-year contract, as a member of the temporary staff at grade AD 8 in the Oversight Department, working as a Senior Expert in Internal Models.

3

On 1 November 2016, the applicant was reassigned to the ‘Internal Models’ team of the ‘Oversight and Supervisory Convergence Department’, again as a Senior Expert in Internal Models.

4

From 31 October 2017 to 19 March 2018, the applicant was on maternity leave, which was followed by a period of parental leave until 19 October 2018.

5

By amendment of 15 January 2018, the applicant’s employment contract was renewed for a period of three years, until 15 January 2021.

6

From 1 November 2018 to 31 October 2019, the applicant was granted a part-time working pattern (80%) and structural teleworking of one day per week. Those working arrangements were reapplied from 1 February 2020 until 15 July 2020. Occasional teleworking was also granted to her on an ad hoc basis.

7

In the context of the appraisal exercise for 2019, the applicant submitted her self-assessment on 9 December 2019, and had a meeting with her reporting officer on 15 January 2020.

8

The reporting officer submitted his assessment of the applicant on 16 January 2020. In the section entitled ‘Overall assessment and potential’, which contains ‘the overall assessment of the period covered by the present appraisal exercise and a comment on the potential of the jobholder wherever relevant’, the reporting officer assessed the applicant’s performance as ‘satisfactory’ and observed that the applicant ‘[had] the potential to be a key staff member for EIOPA’s [Internal Models] oversight work; however, the potential [would] need to result in more tangible, high-quality deliverables from her side. 2019 [had not been] sufficient in my view, the outcomes in 2020 [needed] to improve to remain satisfactory’.

9

The applicant refused to accept the appraisal report and submitted comments on 21 January 2020.

10

The Executive Director of EIOPA, who is also the appeal assessor and is competent to take a decision in the event of a reasoned refusal to accept an appraisal report by the staff member concerned, did not respond to the applicant’s refusal and comments and accordingly did not take a position on those comments in that report.

11

On 27 February 2020, a meeting took place between the Executive Director of EIOPA and the applicant, at the latter’s request.

12

On 2 July 2020, the applicant received the contract renewal report in which the Head of Department did not recommend a second renewal of her contract.

13

On 8 July 2020, the applicant submitted her comments and, on 14 July 2020, she met with the Executive Director of EIOPA to discuss the recommendation not to renew her contract.

14

On 15 July 2020, the Executive Director of EIOPA decided not to renew the applicant’s contract (‘the non-renewal decision’).

15

On 13 October 2020, the applicant lodged a complaint against the non-renewal decision and, in so far as necessary, against her 2019 appraisal report, under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to members of the temporary staff under Article 46 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’).

16

On 15 January 2021, the Executive Director informed the applicant of his intention to reject her complaint and requested that she submit comments, which she did on 22 January 2021.

17

On 1 February 2021, the Executive Director sent the applicant an updated draft decision rejecting her complaint and requested that she submit her comments, which she did on 8 February 2021.

18

By decision of 11 February 2021, the Executive Director rejected the applicant’s complaint (‘the decision rejecting the complaint’).

19

Following her withdrawal at the hearing of her head of claim seeking annulment of the 2019 appraisal report at the hearing, which was recorded in the minutes of the hearing. the applicant claims that the Court should:

20

EIOPA contends that the Court should:

21

It should be borne in mind that, in accordance with the combined provisions of Article 90(2) and Article 91(1) and (2) of the Staff Regulations, which are applicable by analogy to members of the temporary staff pursuant to Article 46 of the CEOS, any member of staff covered by the Staff Regulations may bring an action before the General Court only if he or she has previously lodged a complaint against an act adversely affecting him or her with the authority empowered to conclude contracts of employment (‘the AACC’), or if that authority has taken a decision or has failed to adopt a measure required by the Staff Regulations. The administrative complaint and its rejection, whether express or implied, thus form an integral part of a complex procedure and are merely a precondition for bringing the matter before the judicature (see, to that effect, judgment of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraphs 25 and 26).

22

According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing before the General Court the act against which the complaint was lodged where those claims in themselves lack independent substance (see judgment of 20 November 2007, Ianniello v Commission, T‑205/04, EU:T:2007:346, paragraph 27 and the case-law cited; judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 75; see also, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8).

23

However, where the scope of the decision to reject the complaint differs from that of the measure against which that complaint was made – inter alia where it changes the original decision or where it contains a re-examination of the applicant’s situation in the light of new elements of law or of fact which, had they arisen or become known by the competent authority before the adoption of the original decision, would have been taken into consideration, the Court may be required to rule specifically on the claim formally directed against the decision to reject the complaint (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32 and the case-law cited).

24

In the present case, in addition to annulment of the non-renewal decision, the applicant seeks, so far as necessary, annulment of the decision rejecting the complaint.

25

The latter decision is not merely confirmatory of the non-renewal decision, since the Executive Director of EIOPA took a position with regard to new factors. More specifically, the Executive Director of EIOPA referred to new factual elements, namely that he had never been informed, as appeal assessor, of the applicant’s refusal to accept her 2019 appraisal report and that, from a procedural point of view, that report had not been finalised.

26

In those circumstances, it is necessary to examine the claim for annulment both of the non-renewal decision and of the decision rejecting the complaint (see, to that effect, judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 79 and the case-law cited).

27

Lastly, the decision rejecting the complaint clarifies certain aspects of the statement of reasons for the non-renewal decision. Accordingly, in view of the evolving nature of the pre-litigation procedure, that statement of reasons must also be taken into account in the review of the legality of the non-renewal decision, since that statement of reasons is supposed to coincide with the latter decision (judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 80; see also, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited).

28

In support of her claim for annulment, the applicant raises six pleas in law seeking to establish the unlawfulness of the non-renewal decision and of the decision rejecting the complaint, alleging:

29

In the interests of procedural economy and in accordance with the principle of the proper administration of justice, the Courts of the European Union may give judgment in an action without necessarily having to rule on all the pleas in law and arguments put forward by the parties (see judgment of 5 February 2018, Ranocchia v ERCEA, T‑208/16, EU:T:2018:68, paragraph 57 and the case-law cited). In the present case, it is appropriate to examine the first plea first, without it being necessary to examine the other pleas put forward by the applicant.

30

By her first plea, the applicant claims that the non-renewal decision is unlawful because it is based on a 2019 appraisal report which was not finalised.

31

The applicant points out that her 2019 appraisal report is an essential element of the statement of reasons for the non-renewal decision. That report was not finalised, however, as the applicant did not have the opportunity to express her views effectively. As a result, that report cannot serve as a basis for adoption of the non-renewal decision. That is a procedural defect affecting the lawfulness of the non-renewal decision, which thus has no legal or factual basis, especially since that decision refers specifically to the applicant’s appraisal in the 2019 appraisal report.

32

Nor can the possibility be ruled out that, had the applicant’s comments challenging her appraisal in the 2019 appraisal report been duly taken into account at the time, the AACC might have taken a different decision on the renewal of her contract. There is no evidence that her comments on her 2019 appraisal report were taken into account and no reasons were given for the confirmation, in the decision rejecting the complaint, of her reporting officer’s negative comments. Accordingly, EIOPA cannot confirm the assessment made by the reporting officer in the 2019 appraisal report.

33

EIOPA contends that the applicant’s appraisal exercise for 2019 duly followed its course until the appeal stage and the comments of the reporting officer were communicated and remain valid for the purposes of assessing the evolution of the applicant’s performance in 2020 and the decision on the renewal of her contract.

34

EIOPA does, moreover, acknowledge that there was a procedural omission in the applicant’s 2019 appraisal exercise, but considers that the applicant’s appeal was implicitly dismissed. The AACC stated that, if the applicant’s appeal against her appraisal report had been brought before it, it would have confirmed that report and the applicant’s comments attached to the refusal to accept her 2019 appraisal report could not have called the non-renewal decision into question. The AACC also informed the applicant, at the interview of 27 February 2020, that it agreed with the assessment made by her reporting officer.

35

In order to rule on those arguments, alleging that the 2019 appraisal report was not finalised, it is appropriate first to examine the legal status of that report.

36

It follows from a combined reading of the first paragraph of Article 43 of the Staff Regulations and Article 15(2) of the CEOS that the administration must ensure that reports on the ability, efficiency and conduct in the service of its staff are drawn up periodically, both for reasons of sound administration and in order to safeguard their interests. The appraisal reports constitute written and formal evidence of the quality of the work carried out by the staff member during the period considered (judgments of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraphs 55 and 56, and of 12 February 2020, WD v EFSA, T‑320/18, not published, EU:T:2020:45, paragraph 60).

37

According to Article 7(1) of Commission Decision C(2013) 8985 of 16 December 2013 laying down general provisions for implementing Article 43 of the Staff Regulations and implementing the first paragraph of Article 44 of the Staff Regulations (‘the Commission Decision of 16 December 2013’, applicable to EIOPA by analogy (EIOPA-MB-14/018)), the jobholder’s reasoned refusal to accept the report automatically means referral to the appeal assessor. Paragraph 3 of that article provides that, within 20 working days of the date of the reasoned refusal to accept the report, the appeal assessor is to confirm or amend the report, giving reasons for his decision, whilst paragraph 4 provides that the report is to become final by decision of the appeal assessor.

38

Article 7(4) of the Commission Decision of 16 December 2013 expressly provides that, following the appeal assessor’s decision, the report becomes final and that ‘the jobholder shall be notified, by email or other means, that the decision rendering the report final has been adopted … [and will] at [that] point also have access to the appeal assessor’s decision. Such notification constitutes communication within the meaning of Article 25 of the Staff Regulations. The period of three months in which to lodge a complaint, provided for in Article 90(2) of the Staff Regulations, starts to run on communication of the information’.

39

In that regard, it should be noted that, as a provision of a formal Commission decision, duly published and implemented, Article 7 of the Commission Decision of 16 December 2013 establishes an internal rule of general application which is legally binding, limiting the exercise of discretion of that institution and of EIOPA, which decided to apply by analogy that decision concerning the organisation of its structures and the management of its staff on which the members may rely before the Courts of the European Union which ensure compliance with it (see, by analogy, judgments of 27 April 2012, De Nicola v EIB, T‑37/10 P, EU:T:2012:205, paragraph 40, and of 7 July 2009, Bernard v Europol, F‑54/08, EU:F:2009:86, paragraph 47).

40

It is clear from those provisions that, where the jobholder refuses the appraisal report, it does not become final until after the appeal assessor has taken a decision. According to the case-law, where the appeal assessor has a complete power of review as to the merits of the assessments contained in an appraisal report and may validate or amend it, and unlawfully refrains from the exercise of his review, the appraisal report refused by the jobholder does not become final (see, to that effect and by analogy, judgment of 27 April 2012, De Nicola v EIB, T‑37/10 P, EU:T:2012:205, paragraphs 38, 41 and 60).

41

Furthermore, as the applicant rightly submits, there is nothing in the Commission Decision of 16 December 2013 to support the inference that, after the expiry of the time limit for the adoption of a decision by the appeal assessor, the reasoned refusal of the appraisal report is implicitly rejected.

42

Contrary to EIOPA’s contention, the reference to Article 90(2) of the Staff Regulations in Article 7(4) of the Commission Decision of 16 December 2013 has neither the purpose nor the effect of rendering applicable in the present case the rule introduced by Article 90(1) of the Staff Regulations, viz., that the failure to reply to a request made by a person to whom the Staff Regulations apply inviting the appointing authority to take a decision concerning him or her constitutes an implied refusal after a period of four months has elapsed. Article 7(4) of the Commission Decision of 16 December 2013 introduces a rule specific to the appraisal procedure applicable in the present case which cannot be set aside in favour of the rule introduced by Article 90(1) of the Staff Regulations. Nor can the wording of Article 7(4) of the Commission Decision of 16 December 2013 be altered by a reading made in the light of the rule introduced by Article 90(1) of the Staff Regulations, which introduces a different procedure and time limit.

43

In the present case, the Executive Director of EIOPA, who is also the appeal assessor, stated, in the decision rejecting the complaint, and that point was also confirmed at the hearing, that he had not been apprised of the applicant’s reasoned refusal of the 2019 appraisal report and conceded that that report had never been finalised. EIOPA, in its defence, explains that the appeal assessor never received notification of the applicant’s refusal to accept her 2019 appraisal report due to a technical issue, without providing further details, apart from the fact that the competent service provider was asked, in November 2021, to put in place a notification when the jobholder rejects his appraisal report.

44

However, the administration cannot rely on its internal administrative organisation to justify its failure to comply with its overriding duty to ensure that appraisal reports are drawn up periodically within the time limits and in a proper manner (judgment of 18 December 1980, Gratreau v Commission, 156/79 and 51/80, not published, EU:C:1980:304, paragraph 15).

45

It follows from the foregoing that the appeal assessor’s failure to act following the applicant’s refusal to accept the 2019 appraisal report, due to an internal organisational error, cannot be regarded as an implicit confirmation of that report which would have the effect of rendering it final and triggering the time limit for lodging a complaint against it. The principle of legal certainty, relied on by EIOPA, cannot impose on the applicant a duty of diligence which it is for the administration to discharge, and EIOPA cannot validly maintain that the applicant is time-barred from pleading the unlawfulness of the appraisal procedure because she did not lodge a complaint against that alleged implied rejection. Lastly, the existence of such an implied rejection cannot be established, since the Executive Director, who was not aware of the applicant’s appeal against her appraisal report, could not have taken any position on that appeal.

46

Furthermore, although at the hearing the applicant withdrew the claims directed against that report (see paragraph 19 above), she did so without prejudice to the criticisms expressed in her pleadings relating to the failure to finalise that report.

47

It follows that, first, the applicant’s 2019 appraisal report is a non-finalised document which could not be taken into consideration for the purposes of the appraisal of the applicant’s performance and, secondly, the applicant is entitled to rely, by way of incidental ground, on the unlawfulness arising from the failure to finalise an appraisal report for that year (see, to that effect, judgment of 12 February 2020, WD v EFSA, T‑320/18, not published, EU:T:2020:45, paragraph 62).

48

As a preliminary point, it should be noted that a member of the temporary staff with a fixed-term contract does not, in principle, have any right to the renewal of his or her contract, such renewal being merely a possibility, subject to the condition that it is in the interests of the service (judgments of 6 February 2003, Pyres v Commission, T‑7/01, EU:T:2003:27, paragraph 64, and of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 103).

49

Unlike officials, whose security of tenure is guaranteed by the Staff Regulations, members of the temporary staff are covered by a different set of rules on which the contract of employment concluded with the institution concerned is based. Thus, the duration of the employment relationship between an institution and a member of the temporary staff engaged for a fixed term is, specifically, governed by the terms laid down in the contract concluded between the parties. Furthermore, it is also settled case-law that the administration has a broad discretion in matters of contract renewal (see judgment of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraph 46 and the case-law cited; judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 106).

50

Although the administration has a wide discretion, the Court, in an action for annulment of an act adopted in the exercise of such discretion, nevertheless undertakes a review of legality, which has a number of aspects. In the case of an application for annulment of a decision not to renew the contract of a temporary member of staff, review by the Courts of the European Union must be limited to verifying that there has been no error of law, manifest error of assessment or misuse of powers and that there has been no infringement of the administration’s duty to have regard for the welfare of its officials when it is called upon to rule on the renewal of a contract between it and one of its members of staff. Furthermore, the General Court reviews whether the administration committed material inaccuracies (see, to that effect, judgment of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraph 47 and the case-law cited).

51

Furthermore, when the administration introduced, by an internal directive, a special system intended to ensure transparency in the procedures for renewing contracts, the adoption of that system was tantamount to a voluntary curb on the institution’s discretion and, as observed in paragraph 39 above, it had the effect of transforming the initial system relating to contract staff described above, characterised by the insecure nature of the fixed-term contracts, into a system allowing for renewal under certain conditions. According to settled case-law, a decision of a Community institution communicated to all its staff and setting out the applicable criteria and procedure as part of its discretion for the renewal or non-renewal of contracts constitutes an internal directive which must, as such, be regarded as a rule of conduct which the administration imposes on itself and from which it may not depart without specifying the reasons for doing so, since otherwise the principle of equality of treatment would be infringed (see judgment of 7 July 2009, Bernard v Europol, F‑54/08, EU:F:2009:86, paragraph 47 and the case-law cited; see also, to that effect, judgment of 27 April 2012, De Nicola v EIB, T‑37/10 P, EU:T:2012:205, paragraph 40).

52

In the present case, the EIOPA contract renewal procedure, which defines the agency’s general policy on the renewal of contracts, constitutes an internal directive within the meaning of the case-law cited above.

53

Paragraph 4 of the contract renewal procedure provides that ‘the decision to renew employment contracts is taken by the [Executive Director (the AACC)], in accordance with the needs of the service and taking into account considerations such as: (a) the continuity of the post … (b) the performance of the jobholder … (c) the competence(s) of the staff member … (d) the needs of the Authority’.

54

More specifically, paragraph 4(b) of the contract renewal procedure provides that, where the AACC takes the decision on the renewal of a contract on the basis of the performance of the jobholder, that criterion is to be considered ‘on the basis of the jobholder’s job description and of the annually established performance appraisal reports, and when no appraisal report was established yet, on the basis of his/her probationary period report and any other relevant documents’. Paragraph 6.5 of the contract renewal procedure adds that the Head of Department’s recommendation on the renewal of a contract is submitted following the dialogue provided for in paragraph 6.4 and must take into account ‘the previously established performance appraisal reports of the jobholder and the suitability of the jobholder’s competence with the function as it can be expected to evolve in the following years. The HR Unit ensures that the Head of Department has access to all appraisal reports of the jobholder’. According to paragraph 6.9 of the contract renewal procedure, the final decision is to be taken by the Executive Director, who is to take into account the recommendation of the Head of Department and the comments of the jobholder and the criteria listed in paragraph 4 of the aforementioned decision.

55

It follows from those provisions that, where a decision on contract renewal is taken on the basis of the criterion concerning the jobholder’s performance, the appraisal reports of the person concerned must be taken into account both at the stage of the Head of Department’s recommendation and at the stage of the adoption of the decision.

56

In the present case, the recommendation of the applicant’s Head of Department of 2 July 2020 concerning the renewal of her contract began with the citation of the conclusion of the applicant’s 2019 appraisal report. That recommendation then focused on the services provided by the applicant during the first period of 2020. It did not mention the previous appraisal reports.

57

It is apparent from the non-renewal decision that the AACC relied expressly on the performance from 2019 onwards in order to appraise the applicant’s performance. The non-renewal decision rejected the applicant’s good performance during her first years in EIOPA’s service as ‘irrelevant’. The AACC further observed that the applicant ‘has been unable to perform at the level expected from an AD 8 Senior Expert already since 2019’. It added that the applicant had already received ‘a clear warning’ to that effect since the 2019 appraisal exercise and that, despite that warning, her performance had not improved. The non-renewal decision did not mention any appraisal report other than that for 2019.

58

The decision rejecting the complaint explained that the applicant’s good performance from 2015 to 2017 justified the first renewal of her contract, but that, where a contract is renewed for a second time for an indefinite period, it is necessary to focus on the period after the first renewal. The decision rejecting the complaint stated that, for the AACC, that period essentially covered 2019 and the first half of 2020, since the applicant was absent from the office until October 2018 due to maternity and parental leave.

59

It is apparent from those statements that the only appraisal report actually taken into consideration by the AACC was that relating to the applicant’s performance for 2019. However, that appraisal report never became final and could not be taken into account for the purposes of assessing the applicant’s performance (see paragraph 47 above).

60

Consequently, the assessment of the applicant’s performance was carried out on the basis of an incomplete file in that it did not include her final 2019 appraisal report (see, to that effect, judgment of 12 February 2020, WD v EFSA, T‑320/18, not published, EU:T:2020:45, paragraph 61).

61

Accordingly, the decision not to renew the contract infringed the provisions of the contract renewal procedure, which requires account to be taken of the jobholder’s previous appraisal reports (see paragraph 53 above).

62

According to the case-law, such a procedural irregularity can be sanctioned by the annulment of the contested decision only if it is established that that procedural irregularity may have had an influence on the content of the decision (see, to that effect, judgment of 30 January 2013, Wahlström v Frontex, F‑87/11, EU:F:2013:10, paragraph 58 and the case-law cited). More specifically, the mere fact that the applicant’s personal file was incomplete at the time her performance was assessed, owing in particular to the absence of an appraisal report, is not sufficient to annul a non-renewal decision, unless it is established that that fact may have had a decisive effect on the renewal procedure (see, to that effect, judgment of 12 February 2020, WD v EFSA, T‑320/18, not published, EU:T:2020:45, paragraph 63).

63

That is the situation in the present case.

64

First of all, contrary to EIOPA’s claims, the possibility cannot be ruled out that, had the appeal assessor become duly aware of the applicant’s refusal to accept her 2019 appraisal report – which included, moreover, an assessment by the reporting officer summarised by the comment ‘satisfactory’ – and of the applicant’s comments, he could have taken those comments into account and amended that report or its statement of reasons. In that regard, the case-law is to the effect that the administration is obliged to provide a sufficient and detailed statement of the reasons on which any appraisal report is based and to give the person concerned an opportunity to comment on those reasons, compliance with those requirements being all the more important where the appraisal is less favourable than the previous assessment, as is the case here (see, to that effect, judgment of 11 December 2014, DE v EMA, F‑103/13, EU:F:2014:265, paragraph 38). Thus, if the appraisal exercise and the procedure provided for in Article 7 of the Commission Decision of 16 December 2013 are not to be rendered meaningless, EIOPA’s argument to the effect that, had the applicant’s appeal been brought before the AACC and had it ruled on that appeal, it would have confirmed the 2019 appraisal report and that that report should then have been taken into account for the purposes of the contract renewal procedure must be rejected.

65

Next, as observed by the applicant, it is necessary to take into account the preponderant role of the appraisal of her performance for 2019 in the Head of Department’s recommendation and the non-renewal decision.

66

Lastly, the possibility cannot be ruled out that the Head of Department, who was validly called upon to take a stance on the applicant’s professional performance in accordance with paragraph 6.5 of the contract renewal procedure, might have submitted different or differently reasoned proposals concerning the renewal of her contract and that the AACC might have adopted a different decision (see, to that effect, judgment of 30 January 2013, Wahlström v Frontex, F‑87/11, EU:F:2013:10, paragraph 58).

67

Therefore, the fact that the applicant’s comments concerning her 2019 appraisal report were not taken into account and that that report did not become final could have had a decisive impact on the renewal procedure.

68

It follows from all the foregoing considerations that the applicant’s first plea must be upheld.

69

Consequently, the non-renewal decision and the decision rejecting the complaint must be annulled, without its being necessary to examine the other pleas put forward by the applicant.

70

The applicant considers that she has made out proof of the unlawfulness of the decision not to renew her contract and of the decision rejecting the complaint, which caused her material and non-material damage for which EIOPA should pay compensation.

71

EIOPA disputes the applicant’s arguments.

72

According to settled case-law, in the context of a claim for compensation made by an official or other staff member, in order for the liability of the Union to be incurred, a number of cumulative conditions must be satisfied, viz., the unlawfulness of the institutions’ conduct complained of, actual harm suffered and the existence of a causal link between that unlawful conduct and the damage alleged to have been suffered (see judgment of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 45 and the case-law cited).

73

It should be noted that proceedings in civil service cases under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, including those seeking compensation for damage caused to an official or other member of staff, are subject to specific and special rules in comparison with those arising from the general principles governing the non-contractual liability of the Union under Article 268 and the second paragraph of Article 340 TFEU. It follows 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 to which he or she belongs by a legal employment relationship involving a balance of specific reciprocal rights and obligations, which is reflected by the institution’s duty to have regard for the welfare of the person concerned. That balance is essentially intended to preserve the relationship of trust which must exist between the institutions and their officials and other members of staff in order to guarantee to the public that the general interest missions devolved upon the institutions are fulfilled. It follows that, where it acts as an employer, the Union is subject to greater liability, reflected in its obligation to compensate for damage caused to its staff by any unlawful act committed in its capacity as employer (see judgment of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 46 and the case-law cited).

74

Since the first plea in law has been upheld, the non-renewal decision and the decision rejecting the complaint are unlawful. The first condition for holding EIOPA liable, namely the unlawfulness of the conduct complained of, is therefore met.

75

As regards the other two conditions, actual harm suffered and a causal link, a distinction must be drawn between material and non-material damage.

76

The applicant submits that material damage comprises the amount of salary and benefits to which she would have been entitled from the time when her contract should have been renewed, namely 16 January 2021, until the judgment of the Court has been implemented, plus interest for late payment, and taking into account the unemployment allowance received by her. She also claims retroactive payment of pension contributions. The applicant considers that the annulment of the decision not to renew her contract and of the decision rejecting the complaint should entail renewal of her contract with retroactive effect, and that a decision to renew her contract will have the effect of compensating her for material damage.

77

The applicant adds that, should the Court find that she lost an opportunity to have her contract renewed, that opportunity is genuine and the probability is high. The applicant assesses her lost opportunity at 90%, which should be applied to the amount which she would have received if she was still employed, over a reasonable period of time.

78

EIOPA contends that, even if the Court were to annul the non-renewal decision and the decision rejecting the complaint, implementation of the judgment would not ipso jure entail renewal of the contract, and the applicant is incorrect in claiming that she has a subjective right to a renewal of her contract. Furthermore, no fault or unlawful act was committed and the applicant cannot claim to have a legitimate expectation of renewal of her contract of employment.

79

As a preliminary point, it should be borne in mind that the unlimited jurisdiction conferred on the Courts of the European Union by Article 91(1) of the Staff Regulations entrusts them with the task of providing a complete solution to the disputes brought before them. That jurisdiction is intended inter alia to enable the Courts of the Union to guarantee the effectiveness of the judgments by which they annul decisions in staff cases, so that if the annulment of a decision adopted by the appointing authority which contains errors of law is not sufficient to assist the official concerned in enforcing his or her rights or to protect his or her interests effectively, the Courts of the Union may award compensation of their own motion (see, to that effect, judgment of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraphs 49 and 50). It may avail itself of the same jurisdiction where the applicant cannot derive any actual benefit from the performance of the obligations arising from the annulment (see, to that effect, judgment of 16 September 2015, EMA v Drakeford, T‑231/14 P, EU:T:2015:639, paragraph 47).

80

It should be noted that the material damage alleged comprises two separate heads of damage. The first, put forward by way of principal claim, relates to the loss of the remuneration to which the applicant would have been entitled had her contract been renewed. The applicant considers that that harm should be compensated for by the adoption of a decision to renew her contract with retroactive effect, with EIOPA paying her in that case the amounts of which she was unlawfully deprived, taking into account the unemployment allowance she received from other sources. The second head of material damage, put forward in the alternative in the event that the applicant is found not to have had the right to have her contract renewed, relates to the loss of an opportunity to obtain that renewal. The applicant considers that that damage could be made good by EIOPA’s being ordered to pay her compensation calculated by applying the rate of 90%, the percentage representing the probability she considers she had of having her contract renewed, to the same amounts as those referred to in the previous head of damage.

81

As regards the first head of material damage alleged, consisting of a loss of earnings, it should be noted as a preliminary point that the applicant cannot validly substantiate her claim for damages, lodged at the same time as her claim for annulment directed against the non-renewal decision and the decision rejecting her complaint, by stating that the annulment of those acts should entail retroactive renewal of her contract, with the effect that EIOPA must pay her the amounts of which she has been unlawfully deprived since the expiry of her previous contract. If that line of argument were followed, it would render nugatory the claim for compensation for damage consisting of loss of earnings at the time of delivery of the present annulment judgment. That line of argument cannot be accepted. It is true, as noted in paragraph 79 above, that the Courts of the European Union may make use of the unlimited jurisdiction conferred on them in disputes of a financial nature, including in cases involving only claims for annulment, if the annulment of a legally incorrect decision taken by the competent authority is not sufficient to uphold the rights of the official concerned or to protect his or her interests effectively, since the court may, where appropriate, be called upon to exercise that power by an applicant declaring that he or she is unable to derive actual benefit from the performance of the obligations arising from the annulment of the act. In the present case, however, EIOPA cannot be required to do what the applicant requests, namely to reinstate her retroactively, since the unlawfulness found in paragraph 67 above does not mean that she must be automatically reinstated, but only that the 2019 appraisal report must be finalised and that the application for renewal of the contract must be re-examined. Consequently, the applicant’s main argument in support of her claim for compensation for material damage linked to loss of earnings cannot succeed.

82

Furthermore, as regards the first head of material damage alleged, it should be noted that the loss of earnings is inherent in any end of a fixed-term contract; again, the renewal of such a contract is not a right, but merely an option (see paragraphs 48 and 49 above). Thus, in the absence of any precise and concrete assurance on EIOPA’s part as to the renewal of the applicant’s contract, she could not expect to continue to receive her remuneration beyond the end of her fixed-term contract (see, to that effect, judgment of 12 September 2019, Manéa v CdT, T‑225/18, not published, EU:T:2019:595, paragraph 130). For the same reason, it cannot be argued that the annulment of the non-renewal decision and of the decision rejecting the complaint would have the effect, under Article 266 TFEU, of entailing the adoption of a new decision having retroactive effect by which EIOPA would renew the applicant’s contract. Consequently, the claim for compensation for damage consisting of loss of earnings must be rejected.

83

As regards the second head of material damage alleged, relating to a loss of opportunity, it is settled case-law that, in order to be established and give rise to compensation, the loss must be actual and definitive (see, to that effect, judgments of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraphs 54 and 55; of 5 October 2004, Eagle and Others v Commission, T‑144/02, EU:T:2004:290, paragraph 165; and of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 110).

84

It is appropriate to examine, in the first place, the condition relating to an actual loss of opportunity.

85

As a preliminary point, it should be borne in mind that, in order to assess whether the loss of opportunity is real, it is necessary to refer to the date on which the non-renewal decision was taken (see, to that effect, judgment of 12 April 2016, CP v Parliament, F‑98/15, EU:F:2016:76, paragraph 82).

86

According to the case-law, in order to determine whether the loss of opportunity is real, it is necessary to examine whether it has been established to the requisite legal standard that the applicant was deprived not necessarily of the renewal of her contract, which she can never prove would have occurred, but of a genuine opportunity to have her contract renewed, with material damage for the applicant consisting of loss of income (see, to that effect, judgments of 5 October 2004, Eagle and Others v Commission, T‑144/02, EU:T:2004:290, paragraph 165, and of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 111).

87

The existence of a genuine opportunity does not depend on the degree of probability that that opportunity would have materialised, as the latter factor is taken into account subsequently, if that existence is recognised, in order to determine the extent of the material damage suffered and of its compensation (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 119, and of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 74). Thus, it has already been held that the loss of an opportunity estimated at 50% (judgment of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 119) or 25% (judgment of 12 April 2016, CP v Parliament, F‑98/15, EU:F:2016:76, paragraph 83) or even the loss of a ‘not very great’ opportunity (judgment of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 74) was sufficiently serious, in view of the circumstances of those cases, to establish that it was real.

88

In the present case, it is apparent from the documents before the Court that, in the absence of the unlawfulness vitiating the non-renewal decision, the possibility could not be ruled out that the applicant’s contract might be renewed and, moreover, for an indefinite period. The applicant had performed her duties in the service of EIOPA for more than five years at the time of the decision not to renew her contract and it is apparent from all her staff reports that she had performed her duties satisfactorily. Moreover, the non-renewal decision does not state that, at the time of its adoption, the interests of the service or EIOPA’s needs precluded the renewal of the applicant’s contract. It is apparent from the non-renewal decision that it was based mainly on the applicant’s performance in 2019 and on her 2019 appraisal report and did not take into account the applicant’s comments on that report, which had not become final, which are factors which have led the Court to find fault with that decision. Those considerations constitute a set of sufficiently precise and plausible evidence to show that in 2020 the applicant had, in the context of the contract renewal procedure, a specific and sufficiently strong, that is to say, genuine, chance of having her contract renewed for an indefinite period, in view also of the provisions of the contract renewal procedure, notwithstanding the broad discretion with respect to the renewal of a contract of employment (see, to that effect, judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 196). It is that chance which was lost in 2020 as a result of the unlawfulness arising from the use of a non-definitive appraisal report as established in paragraph 67 above.

89

In the second place, it is necessary to examine the definitive nature of the alleged loss of opportunity.

90

As a preliminary point, it should be borne in mind that the definitive nature of the loss of opportunity is assessed at the time when the Courts of the European Union rule, taking into account all the circumstances of the present case, including factors subsequent to the adoption of the unlawful act giving rise to the damage (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 50, in which account is taken of the fact that the posts for which the applicant applied have since been filled, and of 14 July 2021, Carbajo Ferrero v Parliament, T‑670/19, not published, under appeal, EU:T:2021:435, paragraph 164, in which account was taken of events that had not yet materialised at the time of delivery of the judgment of the General Court, such as the imminent retirement of the applicant).

91

In the present case, in order to assess that definitive nature, it is necessary to examine whether, on the date of delivery of the present judgment and in the light of the measures for implementation of the present judgment, which it is for EIOPA to adopt, the applicant definitively lost the opportunity she had to have her contract renewed upon the expiry of that contract, that is to say, from 16 January 2021 (judgment of 14 July 2021, Carbajo Ferrero v Parliament, T‑670/19, not published, under appeal, EU:T:2021:435, paragraph 164; see also, to that effect, judgment of 27 October 1994, C v Commission, T‑47/93, EU:T:1994:262, paragraph 52).

92

In that regard, it should be borne in mind that, in accordance with Article 266 TFEU, the institution, agency or body whose act has been annulled is required to take the necessary measures to implement the judgment annulling that act. The defendant institution is therefore required, under that provision, to take the necessary measures to nullify the effects of the malfeasance found (see, to that effect, judgment of 23 April 2002, Campolargo v Commission, T‑372/00, EU:T:2002:103, paragraph 109 and the case-law cited). Where the annulled act has already been implemented, the nullification of its effects requires, in principle, the restoration of the applicant’s legal situation as it stood prior to the adoption of the act (see, to that effect, judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84 and the case-law cited).

93

However, the obligation on the administration to take the necessary measures to implement a judgment annulling an act does not necessarily rule out the possibility that the loss of opportunity for the applicant who has obtained the annulment of a decision concerning him or her may be definitive. If the measures to implement the judgment annulling an act, which it is for the administration to adopt in order to implement the judgment, are not liable to have a practical effect within the meaning of the case-law cited in paragraph 79 above, by not giving the applicant the same opportunity to obtain satisfaction as if the unlawfulness found had not occurred, the court may find that the alleged loss of opportunity is definitive and order the administration to compensate for that.

94

Thus, in the case which gave rise to the judgment of 14 July 2021, Carbajo Ferrero v Parliament (T‑670/19, not published, under appeal, EU:T:2021:435, paragraph 164), even though the administration had not yet adopted measures to implement the annulment judgment, the General Court awarded compensation for the loss of an opportunity to be appointed to a post of director ‘sooner’, that is to say, on the date of notification of the decision not to accept the applicant’s application and to appoint another candidate. The Civil Service Tribunal also awarded compensation for the loss of opportunity to be confirmed in the post of head of unit sooner, by recognising that the applicant’s subsequent appointment to a post of head of unit cannot serve to compensate adequately, for the past, for the effects of the annulled non-confirmation decision (judgment of 12 April 2016, CP v Parliament, F‑98/15, EU:F:2016:76, paragraph 76).

95

In disputes relating to decisions rejecting applications, the General Court has held that the definitive nature of the loss of an opportunity to be recruited stemmed from the protection of the rights of third parties whose applications had been accepted for the posts in question (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 49, and of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 91), and not from the fact that it is impossible for the administration legally to correct the unlawfulness committed.

96

In a case concerning the non-renewal of a contract, the General Court recognised that compensation may be awarded for the loss of opportunity for a member of the temporary staff to have his or her contract renewed, even though the administration had not yet had the opportunity to adopt measures to implement the annulment judgment (judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 197).

97

It is apparent from this discussion of the case-law that the definitive nature of the loss of an opportunity is not contingent on the administration’s being unable legally to remedy the unlawfulness of its acts. That nature may be established where, having regard to all the circumstances of the case, even if it is still possible for the administration to adopt measures to correct the unlawfulness committed, those measures would be of no practical effect for the applicant, who would not be given the same opportunity as the one of which he or she was deprived due to the unlawfulness.

98

That is the situation in the present case. First, the annulment of the non-renewal decision does not in itself entail the applicant’s legal reinstatement in EIOPA’s departments as from the date on which that decision took effect. Unlike a decision to dismiss an official or member of staff on a contract for an indefinite period, the non-renewal decision did not interrupt an employment relationship that would have continued in the absence of its intervention. Accordingly, the administration is free to take the view that the new decision which it is for it to take following this judgment will make provision for the future only. Secondly, even if, following the annulment of the non-renewal decision by the General Court, EIOPA were to adopt a new decision renewing the applicant’s contract as from the expiry of her previous contract, that decision would have no practical effect for the applicant for the period running from the expiry of her previous contract to the adoption of the new decision. The applicant is not justified in claiming payment of her remuneration in respect of that period and could perform duties within EIOPA only from the time she was reinstated into that agency.

99

Accordingly, in view of all the circumstances of the present case, the applicant is justified in claiming that she definitively lost the opportunity that she had to have her contract renewed on the date of its expiry, had it not been for the illegality found in the present judgment.

100

Consequently, on the basis of those factors, it must be held to be a certainty that EIOPA’s unlawful conduct deprived the applicant of a genuine opportunity to have her employment relationship with EIOPA extended without interruption as from 16 January 2021, following the expiry of her contract (see, to that effect, judgment of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 117). The second condition for EIOPA to incur liability is thus met.

101

That damage is due to the unlawfulness of EIOPA’s conduct which, as a matter of certainty, deprived the applicant of a genuine opportunity to have her contract renewed (see, to that effect, judgment of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 111). The third condition for EIOPA to incur liability, relating to the causal link between the unlawful conduct complained of and the damage alleged, is thus also met, which leads to the next step, viz., determining the amount of compensation to be paid for the loss of opportunity.

102

According to the case-law, in order to determine the amount of compensation to be paid for the loss of such an opportunity, it is necessary, once the nature of the opportunity of which the official or member of staff has been deprived has been identified, to determine the date as from which he or she would have been given that opportunity and then quantify that opportunity and, lastly, establish the financial consequences for the official arising from that loss of opportunity (see judgment of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 118 and the case-law cited).

103

Where possible, the opportunity of which an official or a member of the temporary staff has been deprived must be calculated objectively, in the form of a mathematical coefficient resulting from an accurate analysis. However, where that opportunity cannot be quantified in this manner, it is accepted that the damage suffered may be assessed ex æquo et bono (see, to that effect, judgment of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraphs 119 to 121 and the case-law cited, and judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 199).

104

The applicant provided a quantified assessment of the amount to be used as a basis for calculating the amount of compensation linked to the loss of opportunity. That assessment cannot be accepted, however. It is not possible to quantify that opportunity correctly and establish the financial consequences of the loss of opportunity, because a correct calculation of the applicant’s material damage would be contingent on a number of hypothetical factors, including what substance any new decision adopted by EIOPA further to the present judgment would have, the total duration of the applicant’s career within EIOPA, as well as her promotions. Consequently, it is necessary to assess the damage suffered ex aequo et bono, in the light of all the circumstances of the case (see, to that effect, judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 200 and the case-law cited).

105

In the circumstances of the present case, a fair assessment of the entire material damage suffered by the applicant as a result of her loss of opportunity to have her employment relationship with EIOPA extended without interruption, that is to say, the loss of the opportunity to have her contract renewed as from 16 January 2021 following the expiry of her previous contract, entails ordering EIOPA to pay her, ex aequo et bono, the lump sum of EUR 10000. That lump-sum estimate takes into account, inter alia, the applicant’s grade, the period between the expiry of her contract and the adoption of a new decision by EIOPA in view of the present judgment, the fact that she occupied her post for six years, the fact that her appraisal reports were satisfactory and the unemployment allowance received.

106

The applicant claims that she suffered non-material damage resulting, first, from the fact that the non-renewal decision and the decision rejecting the complaint caused her a nervous breakdown and harm to her health; secondly, from the negative assessment of her performance in her 2019 appraisal report and the non-renewal decision, which adversely affected her dignity, reputation and self-esteem; and, thirdly, from the insecurity caused by the loss of the opportunity to complete 10 years of service in order to be able to claim a pension. Her non-material damage is estimated ex aequo et bono at EUR 10000.

107

EIOPA argues that the negative assessment of the applicant’s performance and the decisions not to renew her contract cannot be considered to have caused non-material damage. Furthermore, the loss of the opportunity to receive a retirement pension is merely hypothetical since, even if the applicant’s contract had been renewed, there would have been no guarantee that she would have completed the 10 years of service necessary for that purpose.

108

First, as regards the non-material damage resulting, in the applicant’s submission, from the fact that the non-renewal decision and the decision rejecting the complaint caused her a nervous breakdown and harm to her health, it should be noted that, according to settled case-law, where the claim for compensation is based on the unlawfulness of the annulled measure, which is the case here, the annulment ordered by the General Court in itself constitutes 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), unless the applicant demonstrates having suffered non-material damage that is incapable of being entirely remedied by that annulment (see, to that effect, judgment of 12 December 2013, CH v Parliament, F‑129/12, EU:F:2013:203, paragraph 64 and the case-law cited).

109

Thus, it has been held that the annulment of an act, where it has no practical effect, cannot in itself constitute appropriate and sufficient compensation for all non-material damage caused by the annulled act (judgments of 15 January 2019, HJ v EMA, T‑881/16, not published, EU:T:2019:5, paragraph 60, and of 9 March 2010, N v Parliament, F‑26/09, EU:F:2010:17, paragraph 107).

110

In the present case, given the limits on the practical effect of annulment of the non-renewal decision as set out in paragraph 98 above, it cannot in itself constitute sufficient compensation and the consequences of non-renewal of a contract, other than material, including those on the applicant’s health, cannot easily be rectified (see judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 205 and the case-law cited).

111

In that regard, the applicant has established to the requisite legal standard that she suffered non-material damage and that that harm was caused to her by the non-renewal decision, the decision rejecting the complaint and the circumstances surrounding the adoption of those decisions, which are attributable to EIOPA. She was on sick leave from 16 July 2020, the day after the non-renewal decision was adopted, until the end of her contract and she produced before the General Court a medical certificate stating that she was suffering from anxiety and depression and that she underwent medical treatment. EIOPA does not dispute the applicant’s stress and anxiety situation, and nor does it take a view on the medical certificate produced, but merely observes that there were sufficient reasons for not renewing the applicant’s contract.

112

Accordingly, the applicant suffered non-material harm attributable to EIOPA, which cannot be compensated for in full by the annulment of the non-renewal decision and the decision rejecting the complaint.

113

Secondly, the applicant cannot claim that the negative assessment of her performance in the 2019 appraisal report and in the non-renewal decision also caused her non-material damage. In the present judgment it is not held that the 2019 appraisal report is unlawful, but merely states that it has not been completed. Moreover, the applicant has not established how that report and the non-renewal decision contain an explicitly negative assessment of her abilities likely to cause her harm and adversely affect her dignity, reputation and self-esteem beyond an objective assessment of a member of the temporary staff by her line manager (see, to that effect, judgments of 9 December 2010, Commission v Strack, T‑526/08 P, EU:T:2010:506, paragraph 108 and the case-law cited, and of 9 March 2010, N v Parliament, F‑26/09, EU:F:2010:17, paragraphs 103 and 104 and the case-law cited).

114

Thirdly, nor can the applicant claim compensation for non-material damage linked to the insecurity caused by the loss of the opportunity to complete 10 years of service in order to be able to claim a retirement pension. Since it is for EIOPA to decide, in the context of implementation of the present judgment, on the renewal of the applicant’s contract, which could provide her with the possibility of continuing to acquire pension rights, her request in that regard is premature.

115

Therefore, a fair assessment of the particular circumstances of the present case, set out in paragraphs 110 and 111 above, is to fix, ex aequo et bono, compensation for the non-material damage suffered by the applicant at EUR 5000.

116

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

117

In the present case, since EIOPA has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby: