ZW v EIB (Rectification order - Rejection - Order) [2020] EUECJ T-727/18REC

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APPLICATION for rectification of the order of 21 November 2019, ZW v EIB (T‑727/18, not published, EU:T:2019:809),

composed of S. Gervasoni (Rapporteur), President, P. Nihoul and J. Martín y Pérez de Nanclares, Judges,

1 On 21 November 2019, the General Court delivered the order in ZW v EIB (T‑727/18, not published, EU:T:2019:809; ‘the order at issue’).

2 By document lodged at the Court Registry on 4 December 2019, the applicant, ZW, asked the General Court to rectify paragraphs 5, 6, 8 to 13, 19, 21, 22, 27 and 29 of the order at issue.

3 Under Article 164(1) of the Rules of Procedure of the General Court, the General Court may, of its own motion or on application by a party, rectify clerical mistakes, errors in calculation and obvious inaccuracies.

4 In the present case, it must be recalled, first, that the General Court has sole jurisdiction to determine the relevant facts and, more generally, the information relevant to the resolution of the dispute, which will be mentioned in the decision which closes the proceedings (see, to that effect, order of 6 June 2017, Frank v Commission, T‑603/15 REC, not published, EU:T:2017:394, paragraphs 8 to 10). The absence of any mention of certain information additional to that already set out in the background to the dispute and the conduct of the proceedings which are set out in the order at issue cannot, therefore, be regarded as constituting a clerical error or an obvious inaccuracy within the meaning of the provision cited in the previous paragraph.

5 The same is true of the absence of any mention of the applicant’s communication of additional information to the Ombudsman following her complaint of 5 July 2017 (in paragraph 5 of the order at issue), the lack of detail of certain grounds for rejecting that complaint (in paragraph 6 of the order at issue) and the absence of any indication of the times at which the application and the applicant’s request that her action be declared admissible were lodged at the Registry (in paragraph 9 of the order at issue).

6 The same is also true of the absence of certain details relating to the requests for amicable settlement of 22 May and 12 June 2019 (in paragraph 8 of the order at issue), especially since the applicant bases some of those details on information subsequent to the bringing of the action in Case T‑727/18 and incorrectly disputes the similarity between the two requests, which differ by the mere addition in the second request of a ground challenging the rejection of her application.

7 Moreover, nor can the absence of certain details in relation to the heads of claim in the application for interim measures which gave rise to the order of 20 September 2019, ZW v EIB (T‑727/18 R, not published, EU:T:2019:686) and to their reasoning (in paragraph 10 of the order at issue) justify a rectification. Furthermore, if, by her claims relating to that application for interim measures, the applicant is disputing the reference that some of the requests at issue were motivated by ‘events occurring after the action had been brought’ (again in paragraph 10 of the order at issue), it is sufficient to refer to paragraph 12 of the abovementioned order for interim measures of 20 September 2019, from which it is apparent that the heads of claim in support of the application for interim measures are essentially based on a decision of the European Investment Bank (EIB) of 12 August 2019, that is to say after the action had been brought, on 17 June 2019.

8 The same also applies to the Court’s failure to specify (in paragraph 11 of the order at issue) the purpose of the applicant’s requests under Article 66 of the Rules of Procedure. Indeed, as is apparent from the terms of that provision, the General Court may omit the name of a party or other information relating to the party either at the request of that party or of its own motion, so that the precise purpose of the request for omission is not so decisive as to be specified in the decision which closes the proceedings at issue. It also follows that the General Court cannot be regarded as having incorrectly omitted information other than the applicant’s name when only the omission of that name was requested. That is all the more so since, in the present case, contrary to what the applicant claims, it is apparent from the documents before the Court that the applicant made a more general request for the omission of information concerning her vis-à-vis the public in a letter of 20 August 2019.

9 It must be held, second, that it is not for the General Court, when giving its decision, to reproduce word for word and in their entirety the submissions of a party as set out in its pleadings. The absence of such reproduction cannot therefore be regarded as a clerical error or an obvious inaccuracy, especially since the General Court explicitly stated that it was setting out ‘in essence’ the forms of order sought by the applicant which are referred to in paragraph 13 of the order at issue.

10 In addition, it may be noted that the applicant does not demonstrate any obvious inaccuracies in the General Court’s summary of the heads of claim in the application which is set out in paragraphs 12 and 13 of the order at issue. In particular, the alleged inaccurate reference to the amicable settlement procedure before the EIB in the third indent of paragraph 13 of the order at issue is not substantiated in any way, particularly in view of the fact that that amicable settlement procedure is expressly mentioned in the paragraph of the application setting out the head of claim at issue.

11 It should be borne in mind, third, that a request for review of the statement of reasons for a decision and the assessments contained therein goes beyond the scope of the rectification procedure (see, to that effect, order of 15 June 2017, Laufen Austria v Commission, C‑637/13 P-REC, not published, EU:C:2017:481, paragraph 6). It follows that it is not possible to rectify under Article 164 of the Rules of Procedure the General Court’s findings relating to the date on which the unlawful nature of Article 2(6) of Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15) must be pleaded, to whether a document can be classified as being provided for by the Rules of Procedure and to whether a line of argument has been presented sufficiently clearly (paragraph 19 of the order at issue) as well as the assessment as to whether the amicable settlement procedure before the EIB was initiated out of time (paragraph 22 of the order at issue). That is all the more so, as regards the latter finding, since, in order to challenge it, the applicant merely referred, without giving any indication of the incorrectness allegedly vitiating that assessment, to the application for rectification brought against paragraph 20 of the order of 26 September 2019, ZW v EIB (T‑447/19 AJ, not published) which is cited ‘to that effect’ by the General Court in paragraph 22 of the order at issue.

12 The same applies to the General Court’s findings relating to the period within which the request for amicable settlement was made (paragraph 21 of the order at issue) and to the rejection of the request to modify the application (paragraph 27 of the order at issue). It may be added, in any event, that an obvious inaccuracy cannot result from failure to take account of the EIB’s decision of 5 April 2019 in response to a request for information from the applicant, which is not contested in the action brought in Case T‑727/18, or of information subsequent to the bringing of that action. It should also be pointed out that the applicant cannot properly claim that the General Court acted in an obviously incorrect manner in applying Article 86 of the Rules of Procedure governing modifications of applications, when she herself based her request for modification on that provision.

13 It must be held, fourth, that, contrary to the applicant’s submission, paragraph 29 of the order at issue is not vitiated by an obvious inaccuracy, inasmuch as the General Court finds in that paragraph that the EIB did not incur any costs. Neither the application in Case T‑727/18 nor the application for interim measures in Case T‑727/18 R was served on the EIB, which did not, therefore, lodge a defence or any observations which would have led it to incur costs. Furthermore, contrary to the applicant’s claim, the proceedings in Case T‑727/18 R‑OST did give rise to costs incurred by the EIB, which will, however, be settled in the order closing those proceedings.

14 It follows from all the foregoing that the application for rectification brought by the applicant must be rejected, without there being any need to request the defendant to submit its observations on that application pursuant to Article 164(3) of the Rules of Procedure.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ZW v EIB (Rectification order - Rejection - Order) [2020] EUECJ T-727/18REC_CO (13 February 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/T72718REC_CO.html Cite as: [2020] EUECJ T-727/18REC_CO, ECLI:EU:T:2020:74, EU:T:2020:74

Court of Justice of the European Communities (including Court of First Instance Decisions)