YL v Council of the European Union and European Union Intellectual Property Office (T-435/23)

Contents

Judgment of the General Court (Intermediate Chamber)10 September 2025^note(Civil service — Members of the temporary staff — Decision of the Management Board of EUIPO not to submit to the Council a proposal for extension of the applicant’s term of office — Decision of the Council not to extend the applicant’s term of office — Right to be heard — Obligation to state reasons — Manifest error of assessment — Liability)In Cases T‑435/23 and T‑224/24,YL, represented by A. Guillerme, T. Bontinck and L. Bouchet, lawyers,vCouncil of the European Union, represented by M. Bauer and A.‑L. Meyer, acting as Agents,supported byRepublic of Latvia, represented by K. Pommere and J. Davidoviča, acting as Agents,byRepublic of Poland, represented by B. Majczyna and M. Horoszko, acting as Agents,byPortuguese Republic, represented by A. Pimenta, P. Barros da Costa, M. Ramos and V. Couto, acting as Agents,and bySlovak Republic, represented by E. Larišová and A. Lukáčik, acting as Agents,andEuropean Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė, E. Lekan and G. Bertoli, acting as Agents,supported byRepublic of Poland, represented by B. Majczyna and M. Horoszko,and bySlovak Republic, represented by E. Larišová and A. Lukáčik,THE GENERAL COURT (Intermediate Chamber),composed of R. da Silva Passos, acting as President, J. Svenningsen, O. Porchia, H. Kanninen, L. Madise, N. Półtorak, P. Nihoul, S. Verschuur (Rapporteur) and H. Cassagnabère, Judges,Registrar: S. Spyropoulos, Administrator,having regard to the written part of the procedure,further to the hearing on 10 April 2025,gives the following

Judgment

1By his action in Case T‑435/23, on the basis of Article 270 TFEU, the applicant, YL, seeks, in the first place, the annulment (i) of a number of decisions taken by the Management Board of the European Union Intellectual Property Office (EUIPO) on 22 November 2022, namely that not to submit to the Council of the European Union a proposal for the extension of his term of office as Executive Director of EUIPO (‘Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office’ or ‘Decision MB-22-19 on the non-proposal of extension of his term of office’), and those to launch the selection procedure for the post of Executive Director, including the procedural steps and indicative timeline for that selection procedure (‘Decisions MB-22-20 and MB-22-21 on the selection procedure’), (ii) the decision taken by the EUIPO Management Board on 6 March 2023 temporarily to suspend the applicant’s powers as the Appointing Authority and the Authority Empowered to Conclude Contracts of Employment (‘the AECE’) (‘Decision MB-23-04 suspending the delegation of the appointing authority powers’) and (iii) the decision of the Council not to extend his term of office, as reflected in the letter of 30 May 2023 from the President of the Council to the Chairperson of the EUIPO Management Board (‘the decision not to extend the term of office’), and, in the second place, compensation in respect of the material and non-material harm which he claims to have suffered.

2By his action in Case T‑224/24, on the basis of Article 270 TFEU, the applicant seeks annulment of the decision not to extend the term of office and compensation in respect of the material and non-material harm he claims to have suffered as a result of that decision.

Background to the dispute and events subsequent to the bringing of the actions

3On 18 September 2018, the applicant was appointed, pursuant to Article 158(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), as Executive Director of EUIPO (‘the Executive Director’) for a period of five years, from 1 October 2018 until 30 September 2023.

4By email of 27 July 2022, the Chairperson of the EUIPO Management Board (‘the Management Board’) informed the applicant that, at its next meeting which would take place in November 2022, the Management Board would be required to take a decision regarding a possible extension of his term of office. In the same email, the Chairperson of the Management Board requested the applicant to inform him whether he wished to continue in his post within EUIPO and whether he was available to do so. By email of 3 August 2022, the applicant replied in the affirmative.

5On 27 October 2022, the secretariat of the Management Board communicated to the applicant the draft of note MB/22/S14/4.1/EN(O), entitled ‘Proposal for extension of the term of office of the Executive Director of [EUIPO]’, which contained, first, an evaluation of the applicant’s performance during his first term of office and, secondly, a description of EUIPO’s future tasks and challenges. In the covering email, the secretariat of the Management Board indicated that the draft would be sent to the Chairperson of that Board for approval the same evening. The same day, the applicant replied with some comments on the draft.

6On 31 October 2022, the Chairperson of the Management Board submitted to the members of that board the final version of note MB/22/S14/4.1/EN(O) (‘the note of 31 October 2022’). That note started by explaining, first, that its objective was to provide the Members of the Management Board with the relevant information to assess the performance of the applicant, whose term of office came to an end on 30 September 2023, and, secondly, that the members of the Management Board were invited to take a decision on proposing the extension of the term of office of the applicant to the Council. It was added in that note that, should the Management Board’s vote fail to reach the required majority, that board would be invited to adopt a decision to launch a selection procedure by publishing a vacancy notice for the post concerned. In the part of that note entitled ‘Conclusion’, it was stated that, according to the Chairperson of the Management Board ‘the assessment [could] be considered as positive’.

7The Management Board, at its meeting of 22 November 2022, adopted Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office. That decision reads as follows:‘Decision not to submit to the Council of the European Union a proposal to extend the term of office of [the applicant] as Executive Director for one additional period of five years, taking into account the assessment of the evaluation of his performance during his first term of office and [EUIPO’s] future tasks and challenges. The decision did not reach a majority of two-thirds of the Members with 11 votes in favour, 7 votes against and 12 abstentions.’

8At its meeting on 22 November 2022, the Management Board also adopted decisions MB-22-20 and MB-22-21 on the selection procedure.

9On 22 November 2022, a number of Spanish newspapers reported the fact that the Management Board had decided not to submit to the Council a proposal for extension of the applicant’s term of office as Executive Director.

10By email of 7 December 2022, the Management Board transferred to the Council Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure, stating as follows:‘In [the meeting of 22 November 2022], the [Management Board] decided not to submit to the Council of the European Union a proposal to extend the term of office of [the applicant] as Executive Director for one additional period of five years, taking into account the assessment of the evaluation of his performance during his first term of office and [EUIPO’s] future tasks and challenges. This decision was taken in accordance with Article 158(3) [of Regulation 2017/1001] (Decision MB-22-19).Consequently, in the same meeting the [Management Board] decided to launch the selection procedure for the post of Executive Director, vacant as from 1 October 2023, and adopt the vacancy notice (Decision MB‑22-20). The vacancy notice is planned to be published in the Official Journal of the European Union on 8 December 2022.In accordance with Article 158(2) [of Regulation 2017/1001], the [Management Board] will take a decision at its next meeting of 6 June 2023, on a list of a maximum of [three] candidates to be submitted to the Council of the European Union for the appointment of a new Executive Director.’

11On 8 December 2022, the vacancy notice for the selection procedure was published in the Official Journal of the European Union. It provided, inter alia, that the candidate had to be able to complete a first full 5-year term of office before reaching the retirement age of 66.

12In January 2023, the applicant took the decision not to renew the contracts of six national experts seconded to EUIPO, which were approaching their terms.

13On 31 January 2023, the draft minutes of the meeting of the Management Board of 22 November 2022 were circulated to the persons who took part in that meeting.

14On 3 February 2023, the applicant requested that the statements he had made after learning of the negative decision of the Management Board concerning the possible extension of his term of office be added to the minutes of the Management Board meeting of 22 November 2022.

15The same day, the applicant’s lawyers asked the Chairperson of the Management Board to inform them of the measures adopted in response to the disclosures made in the press relating to the meeting of the Management Board of 22 November 2022 (see paragraph 9 above).

16On 17 February 2023, the applicant submitted to the Management Board a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against Decision MB-22-19 on the non-proposal of extension of his term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure and sought, in that respect, compensation in respect of the material harm he claimed to have suffered of EUR 442 561.11, and in respect of the non-material harm allegedly suffered of EUR 75000.

17On 18 February 2023, one of the applicant’s lawyers, by email, sent a copy of the applicant’s complaint to the Secretary General of the Council and to the Secretary General and Director-General of the Internal Audit Service of the European Commission.

18On 22 February 2023, the applicant, during a telephone conversation, stated to the Chairperson of the Management Board that his membership of the Preparatory Subcommittee for the selection of the future Executive Director did not place him in a situation of conflict of interest.

19On 24 February 2023, the Chairperson of the Management Board replied to the letter of the applicant’s lawyers dated 3 February 2023 (see paragraph 15 above), stating that no data breach had occurred.

20On 27 February 2023, the Chairperson of the Management Board sent a confidential note to the members of that board with a view to the meeting of 6 March 2023. That note sought, first, to inform the Management Board of the fact that the applicant had submitted a complaint under Article 90(2) of the Staff Regulations against Decision MB-22-19 on the non-proposal of extension of his term of office and against Decisions MB-22-20 and MB-22-21 on the selection procedure, secondly, to have adopted a decision to exclude the applicant from the Preparatory Subcommittee on the recruitment of a new Executive Director and, thirdly, to have adopted a decision suspending, under Article 153(2) of Regulation 2017/1001 and Article 4 of Decision MB-17-01 of the Management Board of 21 March 2017 (‘Decision MB-17-01’), governing the delegation of the powers of appointing authority and AECE (together, ‘the appointing authority powers’), the delegation to the applicant of those powers and to limit the management powers of the applicant to the daily business management for the functioning of EUIPO.

21On 1 March 2023, the applicant sent a note to the Members of the Management Board in order to provide explanations regarding the complaint he had submitted on 17 February 2023 against Decision MB‑22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure (see paragraph 16 above) and the related circumstances and to communicate his point of view concerning the informal information he had received concerning the possible decisions envisaged. In that note, he stated that he would accept the decision of the Management Board in the event of the adoption of a motion to exclude him from the Preparatory Subcommittee for the selection of the future Executive Director (see paragraph 20 above).

22At its meeting of 6 March 2023, the Management Board adopted several decisions, including Decision MB-23-03 to exclude the applicant from the Preparatory Subcommittee for the selection of the future Executive Director and Decision MB-23-04 suspending the delegation of the appointing authority powers. Shortly afterwards, the latter decision was brought to the attention of the staff of EUIPO and articles in that connection also appeared in the press.

23On 15 March 2023, the General Secretariat of the Council acknowledged receipt of the email of 7 December 2022, to which were attached Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure (see paragraph 10 above).

24On 17 March 2023, the applicant, on the basis of Article 90(2) of the Staff Regulations, submitted a complaint against Decision MB-23-04 suspending the delegation of the appointing authority powers and requested compensation of EUR 50000 in respect of the non-material harm he had allegedly suffered.

25On 22 March 2023, the Council sent an email requesting the Management Board, in the person of its Chairperson, to submit to it the assessment made under Article 158(3) of Regulation 2017/1001 (see paragraph 5 above).

26In reply to that email of 22 March 2023, on 25 April 2023, the Chairperson of the Management Board sent the note of 31 October 2022 (see paragraph 6 above) stating, in essence, in the covering letter that, following the assessment of that note, the Management Board had rejected the proposal for the extension of his term of office. He added that that proposal had not reached the majority of two-thirds of the members of the Management Board, 11 members having voted in favour of the extension and 7 against, while 12 members had abstained.

27The decision not to extend the term of office was reflected in a letter of 30 May 2023, delivered to EUIPO the same day, in which the President of the Council indicated that the assessment made by the Management Board had been considered within the Council and that the required simple majority for the adoption of a decision to extend the applicant’s term of office had not been reached. In that letter, the Council requested the Management Board to send it a list of candidates, from which it could choose the future Executive Director.

28On 12 June 2023, the Management Board agreed to add to the draft minutes of the meeting of the Management Board of 22 November 2022 a summary of the statements that the applicant had requested be added (see paragraph 14 above).

29On 16 June 2023, the Management Board rejected the applicant’s complaint concerning Decision MB-22-19 on the non-proposal of extension of his term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure (see paragraph 16 above).

30On 17 July 2023, the Management Board rejected the applicant’s complaint against Decision MB-23-04 suspending the delegation of the appointing authority powers (see paragraph 24 above) (‘the decision rejecting the complaint against Decision MB-23-04’).

31On 19 July 2023, the Council appointed [confidential]^note Executive Director of EUIPO.

32On 26 July 2023, the applicant brought an action in Case T‑435/23 against Decision MB-22-19 on the non-proposal of extension of his term of office, Decisions MB-22-20 and MB-22-21 on the selection procedure, Decision MB-23-04 suspending the delegation of the appointing authority powers and the decision not to extend the term of office.

33On 11 August 2023, the applicant was informed by the Council of a data breach in his regard, which had been discovered on 17 July 2023. Specifically, a non-authorised person had downloaded, from the Council’s computer servers, Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office, the note of 31 October 2022 and the assessment that had been made concerning the applicant’s first term of office.

34On 30 August 2023, the applicant submitted to the Council a complaint under Article 90(2) of the Staff Regulations against the decision not to extend the term of office and requested, in that respect, compensation of EUR 364 728.64 for the material harm he claimed to have suffered and compensation of EUR 125000 for the non-material harm he claimed to have suffered.

35Since he did not receive any decision ruling on his complaint of 30 August 2023 against the decision not to extend the term of office before the four-month deadline provided for by Article 90(1) of the Staff Regulations, the applicant took the view that that complaint had been impliedly rejected by the Council.

36On 6 February 2024, in Case T‑435/23, the applicant lodged a document entitled ‘Request for modification’ at the Registry of the General Court, in which he requested that account be taken of the fact that the complaint he had submitted on 30 August 2023 had been impliedly rejected on 30 December 2023.

37On 27 February 2024, the Council adopted a decision expressly rejecting the applicant’s complaint against the decision not to extend the term of office.

38On 22 April 2024, the applicant brought the action in Case T‑224/24.

Forms of order sought

39The applicant claims that the Court should:– annul Decision MB-22-19 on the non-proposal of extension of his term of office, Decisions MB-22-20 and MB-22-21 on the selection procedure, Decision MB-23-04 suspending the delegation of the appointing authority powers and the decision not to extend the term of office;– order EUIPO and the Council jointly in Case T‑435/23 and the Council in Case T‑224/24 to pay compensation in respect of the material harm suffered, amounting, in each case, to EUR 364 728.64, augmented by the corresponding pension contributions, subject to an increase during the proceedings and subject to default interest;– order EUIPO in Case T‑435/23 and the Council in Case T‑224/24 to pay compensation in respect of the non-material harm suffered, amounting to EUR 125000, subject to an increase during the proceedings and subject to default interest;– order EUIPO and the Council to pay all the costs.

40In Case T‑435/23, the Council, supported by the Republic of Poland, the Portuguese Republic and the Slovak Republic, and EUIPO, supported by the Republic of Poland and the Slovak Republic, and, in Case T‑224/24, the Council contend, in essence, that the Court should:– dismiss the actions as inadmissible;– alternatively, dismiss the actions as unfounded;– order the applicant to pay the costs.

41In the same case, the Republic of Latvia contends that the action should be dismissed.

Law

42After hearing the views of the parties in that regard, the Court has decided to join the present cases for the purposes of the judgment, in accordance with Article 68 of the Rules of Procedure of the General Court.

The legal basis for the actions

Preliminary observations

43It must be noted that the action in Case T‑435/23, which seeks annulment of Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office, of Decisions MB-22-20 and MB-22-21 on the selection procedure, of Decision MB-23-04 suspending the delegation of the appointing authority powers and of the decision not to extend the term of office, was primarily brought on the basis of Article 270 TFEU and, in the alternative, in so far as it concerns the decision not to extend the term of office, on the basis of Article 263 TFEU.

44It must also be borne in mind that the action in Case T‑435/23 was brought after the applicant had submitted, to the Management Board, complaints under Article 90(2) of the Staff Regulations against Decision MB-22-19 on the non-proposal of extension of his term of office, Decisions MB‑22‑20 and MB-22-21 on the selection procedure and Decision MB‑23-04 suspending the delegation of the appointing authority powers and after those complaints had been rejected (see paragraphs 16, 24, 29 and 30 above), but without the applicant having followed the pre-litigation procedure so far as concerned the decision not to extend the term of office.

45The applicant explains in that regard that Decision MB-22-19 on the non-proposal of extension of his term of office, Decisions MB-22-20 and MB-22-21 on the selection procedure and Decision MB-23-04 suspending the delegation of the appointing authority powers were adopted under the Staff Regulations, inasmuch as the Management Board acted as the AECE in his respect, as provided for expressly in Article 153(1)(h) of Regulation 2017/1001 and Articles 1 and 2 of Decision MB-17-01.

46As regards the decision not to extend the term of office, the applicant submits that the requirement to bring the matter before the appointing authority or the AECE prior to an action concerns only the measures that that authority may alter and that, consequently, it was unnecessary to submit a complaint under Article 90(2) of the Staff Regulations, given that the Management Board, as the AECE, could not review that decision.

47As regards the action in Case T‑224/24, which also seeks the annulment of the decision not to extend the term of office and which was also brought on the basis of Article 270 TFEU, attention is drawn to the fact that it was brought after the applicant had submitted to the Council a complaint under Article 90(2) of the Staff Regulations and after that complaint had, impliedly and then expressly, been rejected (see paragraphs 34 and 37 above).

48The applicant explains in that connection that he acted thus in the light of the uncertainty as regards the issue of whether, at the time of adopting the decision not to extend the term of office, the Council had also acted in the capacity of the AECE, so, in any event, by way of a supplementary and precautionary measure, he followed the pre-litigation procedure before the Council.

49EUIPO, supported by the Republic of Poland and the Slovak Republic, and the Council, supported by the Republic of Latvia, the Republic of Poland, the Portuguese Republic and the Slovak Republic, submit that the actions in Cases T‑435/23 and T‑224/24 are incorrectly based on Article 270 TFEU, in that none of the decisions which form the subject matter of those cases fall within the scope of the Staff Regulations.

50In particular, Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office, Decisions MB-22-20 and MB-22-21 on the selection procedure and the decision not to extend the term of office were adopted under specific powers conferred on the Management Board and on the Council under Article 158 of Regulation 2017/1001, establishing a sui generis procedure governing the appointment and removal of the Executive Director, while Decision MB-23-04 suspending the delegation of the appointing authority powers was adopted on the basis of Article 153(2) of Regulation 2017/1001 and Decision MB-17-01, establishing a separate system concerning the appointing authority powers and their exercise within EUIPO and directly and exclusively conferring on the Management Board the power to suspend the delegation of those powers to the Executive Director.

51According to EUIPO, supported by the Republic of Poland and the Slovak Republic, and the Council, supported by the Republic of Latvia, the Republic of Poland, the Portuguese Republic and the Slovak Republic, the actions should therefore have been based on Article 263 TFEU and, inasmuch as the claims directed against Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office, Decisions MB-22-20 and MB-22-21 on the selection procedure and Decision MB-23-04 suspending the delegation of the appointing authority powers were not brought within the time limits prescribed in that article, those decisions have become final and are, as a result, not open to challenge.

The applicability of Article 270 TFEU and Articles 90 and 91 of the Staff Regulations

52It must be recalled that, under Article 270 TFEU, the Court of Justice of the European Union is to have jurisdiction in any dispute between the European Union and its servants within the limits and under the conditions laid down in the Staff Regulations and the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) and that, in that context, the notion of ‘dispute between the Union and its servants’ has been given a wide definition by the case-law (see judgment of 5 October 2004, Sanders and Others v Commission, T‑45/01, EU:T:2004:289, paragraph 45 and the case-law cited).

53Article 270 TFEU thus creates a means of legal redress for civil service disputes distinct from general remedies such as actions for annulment governed by Article 263 TFEU (judgment of 5 May 2022, Commission v Missir Mamachi di Lusignano, C‑54/20 P, EU:C:2022:349, paragraph 39).

54In that regard, for the purposes of determining the jurisdiction of the Court of the European Union before which proceedings are brought under Article 270 TFEU, it is appropriate to take into account, in addition to the wording of that article, the provisions of the Staff Regulations, having regard to the reference in that article to those regulations, and, in particular, Articles 90 and 91 of the Staff Regulations, which implement Article 270 TFEU. All those provisions define that jurisdiction both ratione materiae and ratione personae (see judgment of 5 May 2022, Commission v Missir Mamachi di Lusignano, C‑54/20 P, EU:C:2022:349 paragraph 40 and the case-law cited).

55As regards the jurisdiction ratione personae of the Courts of the European Union under Article 270 TFEU, Article 91(1) of the Staff Regulations states that the Court of Justice is to have jurisdiction in any dispute between the European Union and ‘any person to whom [the] Staff Regulations apply’ regarding the legality of an act affecting such person adversely, within the meaning of Article 90(2) of those regulations. In accordance with the latter provision ‘any person to whom [the] Staff Regulations apply’ may submit a complaint to the appointing authority against an act affecting him or her adversely (judgment of 5 May 2022, Commission v Missir Mamachi di Lusignano, C‑54/20 P, EU:C:2022:349 paragraph 45).

56As regards the jurisdiction ratione materiae, it is settled case-law that any dispute between an official and the institution to which he or she belongs falls within the scope of Article 270 TFEU and Article 91(1) of the Staff Regulations where that dispute has its origin in the employment relationship between that official and that institution (see judgment of 5 May 2022, Commission v Missir Mamachi di Lusignano, C‑54/20 P, EU:C:2022:349, paragraph 42 and the case-law cited; see also, to that effect, order of 11 July 1996, Gomes de Sá Pereira v Council, T‑30/96, EU:T:1996:107, paragraph 24 and the case-law cited).

57In the present case, the following must be noted.

58In the first place, as regards the jurisdiction ratione personae, it is apparent from Article 158(1) of Regulation 2017/1001 that the Executive Director is engaged as a temporary agent under Article 2(a) of the CEOS. It must also be noted that the Executive Director is part of the staff of EUIPO, to which, as is apparent from Article 143(1) of Regulation 2017/1001, the Staff Regulations and the CEOS and the regulations implementing those provisions apply. Furthermore, it follows from Article 153(1)(h) of Regulation 2017/1001 and Articles 1 and 2 of Decision MB-17-01 that the Management Board is designated as the AECE of the Executive Director, under the first paragraph of Article 6 of the CEOS, so far as concerns the procedure for the exercise of the powers of the Executive Director for the purposes of the functioning of EUIPO.

59Furthermore, Article 1 of the employment contract concluded between EUIPO and the applicant expressly provides that the latter was engaged as a temporary agent under Article 2(a) of the CEOS.

60As regards the jurisdiction ratione materiae, it must be noted, first, that the suspension of the delegation to the Executive Director of the appointing authority powers is decided upon by the Management Board, in accordance with Article 153(2) of Regulation 2017/1001 and Article 4 of Decision MB-17-01, and, secondly, that the procedure to extend the term of office of the Executive Director is a multi-step procedure in which both the Management Board and the Council participate, and by which the Management Board undertakes an assessment which takes into account an evaluation of the performance of the Executive Director and EUIPO’s future tasks and challenges, in accordance with Article 158(3) of Regulation 2017/1001, and the Council, taking into account that assessment, may extend the term of office of the Executive Director on the basis of Article 158(4) of that regulation.

61As regards Decision MB-23-04 suspending the delegation of the appointing authority powers, it should be stated that the purpose of that decision is to suspend the appointing authority powers which the Management Board delegated to the applicant in his capacity as Executive Director. Thus, in so far as the dispute concerns that decision, it relates to the employment relationship between the applicant and EUIPO.

62So far as concerns the procedure to extend the Executive Director’s term of office, it must be added that, although the latter does not have a formal employment relationship with the Council, the fact remains that that institution adopts a decision which, regardless of its content, has consequences for the employment relationship between the Executive Director and his or her employer, EUIPO, and, accordingly, for his or her employment as a member of the temporary staff. Thus, the Council must be regarded as the AECE of the Executive Director so far as concerns the procedure for the extension of his or her term of office (see, by analogy, order of 11 July 1996, Gomes de Sá Pereira v Council, T‑30/96, EU:T:1996:107, paragraph 29).

63In the second place, it should be stated that EUIPO has not succeeded in explaining how the characteristics of the functions of the Executive Director, inter alia by their definition in Article 157 of Regulation 2017/1001, implied that a decision on a possible extension of the Executive Director’s term of office did not fall within the scope of Article 270 TFEU, despite his status as a member of the temporary staff. That article does not make any distinction according to the nature of the functions of the person concerned or level of responsibility he or she exercises.

64In the third place, it must be found that the principles identified in the case which gave rise to the order of 13 June 2022, Mendes de Almeida v Council (T‑334/21, EU:T:2022:375), concerning the European Prosecutors, cannot be applied to the present case.

65Contrary to the situation as regards the Executive Director (see paragraph 58 above), in accordance with the provisions of Article 2(4) and Article 12 of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (OJ 2017 L 283, p. 1), the European Prosecutors are not members of the staff of the European Public Prosecutors Office and, consequently, do not fall within the scope of the Staff Regulations (order of 13 June 2022, Mendes de Almeida v Council, T‑334/21, EU:T:2022:375, paragraph 37).

66In the light of those factors, it must be held that the applicant is acting, for the purposes of the present actions, in his capacity as a servant of the European Union within the meaning of Article 270 TFEU, and a person to whom the Staff Regulations apply within the meaning of Articles 90 and 91 of those regulations. In addition, since the subject matter of the dispute is the suspension of some of the applicant’s powers as the Executive Director and the non-extension of his term of office, that dispute has its origin in the employment relationship between the applicant and EUIPO.

67It follows that the General Court has jurisdiction to hear and determine the present actions under Article 270 TFEU.

Observance of the pre-litigation procedure

68It must be recalled that, under Article 90(2) of the Staff Regulations, any person to whom the Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him or her adversely, either where that authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. Furthermore, it follows from Article 91(2) of the Staff Regulations that an appeal to the General Court is admissible only if the appointing authority has previously had a complaint submitted to it under Article 90(2) of the Staff Regulations within the period prescribed and that complaint has been rejected by express decision or by implied decision.

69So far as concerns Case T‑224/24, it must be noted that the applicant brought the action in that case after submitting a complaint under Article 90(2) of the Staff Regulations to the Council and after that complaint was rejected.

70Consequently, it must be held that the pre-litigation procedure was observed before the Council, which is, in the light of the specific nature of the procedure for extension of the term of office of the Executive Director, as it follows from paragraph 60 above, the AECE competent to rule on the complaint brought by the applicant for the purpose of that procedure.

71So far as concerns Case T‑435/23, it must be noted that the applicant submitted complaints to the Management Board against Decision MB‑22-19 on the non-proposal of extension of his term of office, Decisions MB-22-20 and MB-22-21 on the selection procedure and Decision MB-23-04 suspending the delegation of the appointing authority powers, under Article 90(2) of the Staff Regulations, and that he brought his action after the complaints relating to it had been rejected (see paragraph 44 above).

72Consequently, the pre-litigation procedure was observed before the competent AECE before the introduction of the action for annulment in Case T‑435/23, in so far as that action concerns Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office, Decisions MB-22-20 and MB-22-21 on the selection procedure, and Decision MB-23-04 suspending the delegation of the appointing authority powers.

73As regards observance of the pre-litigation procedure concerning the decision not to extend the term of office in the context of the action in Case T‑435/23, it is settled case-law that since the admissibility of an action must be assessed at the time when it is brought, an applicant can be allowed to adapt the form of order sought and pleas, so as to cover new acts supervening during the proceedings, only in so far as his or her application for annulment of the act initially challenged was itself admissible on the date on which it was brought (see order of 21 November 2019, ZW v EIB, T‑727/18, not published, EU:T:2019:809, paragraph 27 and the case-law cited).

74In the present case, without it being necessary to rule on the issue of whether the document lodged by the applicant on 6 February 2024 may be considered to be a statement of modification within the meaning of Article 86(4) of the Rules of Procedure, it is sufficient to note that on 26 July 2023, the date when the action in Case T‑435/23 was brought, the applicant had not yet submitted the complaint against the decision not to extend the term of office, that complaint being filed only on 30 August 2023. It follows from this that, at the time the action in Case T‑435/23 was brought, the applicant’s application for annulment of that decision was inadmissible because of a failure to observe the pre-litigation procedure.

75In any event, that finding has no impact here, having regard to the fact that, in paragraph 70 above, it was held that the applicant had observed the pre-litigation procedure prior to bringing the action in Case T‑224/24 against the decision not to extend the term of office.

76It follows that, although the claim for annulment of the decision not to extend the term of office is inadmissible in Case T‑435/23, that is by contrast not true of that which was brought against that decision in Case T‑224/24.

The claims for annulment

77In support of the claims for annulment in Case T‑435/23, the applicant alleges, in the first place, the illegality of Decision MB-22-19 on the non-proposal of extension of his term of office and of Decisions MB‑22-20 and MB-22-21 on the selection procedure, and, in the second place, the illegality of Decision MB-23-04 suspending the delegation of the appointing authority powers.

78In support of his claim for annulment in Case T‑224/24, the applicant alleges the illegality of the decision not to extend the term of office.

79It is necessary at the outset to examine the claims for annulment in Case T‑435/23 in so far as they are directed against, first, Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and, secondly, Decisions MB-22-20 and MB-22-21 on the selection procedure, then, to analyse the claim for annulment in Case T‑224/24, which concerns the decision not to extend the term of office, and, lastly, to rule on the claims for annulment in Case T‑435/23 in so far as they are directed against Decision MB-23-04 suspending the delegation of the appointing authority powers.

The claims for annulment in Case T‑435/23 in so far as they are directed against Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office

80The applicant seeks the annulment of Decision MB-22-19 on the non-proposal of extension of his term of office, which he considers to be an act open to challenge.

81The applicant submits to that effect that, by adopting a decision in which the Management Board indicated to the Council that it was not proposing to it the extension of the applicant’s term of office, without nevertheless having the competence to do so, EUIPO de facto prevented that extension and thus adopted a decision adversely affecting the applicant.

82EUIPO, supported by the Republic of Poland and the Slovak Republic, contends that the applicant’s application is inadmissible however, in that Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office materialises the assessment provided for in Article 158(3) of Regulation 2017/1001 and has only an advisory value, the Council alone being competent to adopt an act in the nature of a decision so far as concerns the extension of such a term of office.

83As regards the admissibility of the application for annulment of Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office, it is settled case-law that all acts adopted by the institutions, bodies, offices or agencies of the European Union, whatever their nature or form, which are intended to produce binding legal effects such as to affect the applicant’s interests by bringing about a distinct change in his or her legal position, may be the subject of an action for annulment. In that regard, it is, in principle, acts which definitively determine the position of the institutions, bodies, offices or agencies of the European Union upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, which are open to challenge, and not intermediate measures whose purpose is to prepare for the definitive decision, which do not have those effects (see, to that effect, judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 70 and the case-law cited).

84It must be recalled in that regard that, in accordance with Article 158(3) of Regulation 2017/1001, in the context of the procedure for extension of the term of office of the Executive Director, the Management Board undertakes only an assessment which takes into account an evaluation of the performance of that executive director and EUIPO’s future tasks and challenges, while, in accordance with Article 158(4) of that regulation, the Council must, taking into account that assessment, adopt the decision on any extension.

85The fact that, in the present case, the Management Board entitled Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office ‘Decision not to submit to the Council of the European Union a proposal to extend the term of office of [the applicant]’ and presented, in its letter of 7 December 2022 to the Council, the departure of the Executive Director and the recruitment of a successor in irreversible terms (see paragraphs 7 and 10 above) is, in itself, of no relevance with regard to the issue of the admissibility of the claim for annulment directed against that decision.

86Indeed, it is clear from Article 158(3) and (4) of Regulation 2017/1001 that the procedure for extension of the term of office of the Executive Director takes place in two stages, the first of which consists in an assessment undertaken by the Management Board, and the second of which consists in the adoption of a decision by the Council which takes into account that assessment, without its being provided that the Council is bound by the latter (see paragraph 60 above).

87Where the adoption of acts or decisions takes place following a procedure which involved several stages, only the measures which definitively lay down the position of the institution constitute acts open to challenge, not the intermediate measures which preceded them and which were intended to pave the way for the final decision (see judgment of 2 February 2022, LU v EIB, T‑536/20, not published, EU:T:2022:40, paragraph 38 and the case-law cited).

88Since the final decision on any extension of the Executive Director’s term of office must, in the present case, in the light of the procedure set out in paragraph 86 above, be taken by the Council, it follows that Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office is a preparatory act, in that it produces no binding legal effect such as to affect the applicant’s interests (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 45 and the case-law cited), and in that it is not liable to affect the freedom of choice of the Council as regards the extension of the applicant’s term of office.

89That conclusion cannot be called in question by the applicant’s argument that the late sending of the note of 31 October 2022 to the Council (see paragraph 26 above) left the latter no choice other than that not to extend his term of office. On any view, the applicant has not provided any evidence such as to demonstrate that the period remaining between the note being sent, on 25 April 2023, and the end of his term of office, on 30 September 2023, was insufficient to enable the Council to make its own determination.

90Consequently, it must be concluded that Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office produces no binding legal effects such as to affect the latter’s interests, so that the application for annulment of that decision is inadmissible.

The claims for annulment in Case T‑435/23 in so far as they are directed against Decisions MB-22-20 and MB-22-21 on the selection procedure

91The applicant submits that Decisions MB-22-20 and MB-22-21 on the selection procedure adversely affect his interests since they are intrinsically linked to Decision MB-22-19 on the non-proposal of extension of his term of office, inasmuch as, for a vacancy notice to be published, there must be certainty that a post is vacant or will be in the short term.

92In that regard, it should be borne in mind that under Article 76(d) of the Rules of Procedure, an application is to contain a summary of the pleas in law relied on. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must, accordingly, specify the nature of the grounds on which the action is based, which means that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see judgment of 4 July 2017, Systema Teknolotzis v Commission, T‑234/15, EU:T:2017:461, paragraph 139 (not published) and the case-law cited). The application must unequivocally show what the applicant intended to plead (see, to that effect, judgment of 5 March 2019, Pethke v EUIPO, T‑169/17, not published, EU:T:2019:135, paragraph 115).

93It must be held that the applicant has raised no argument aimed specifically at challenging the lawfulness of Decisions MB-22-20 and MB-22-21 on the selection procedure (see, to that effect, judgment of 7 June 2018, Winkler v Commission, T‑369/17, not published, EU:T:2018:334, paragraph 54).

94In addition, in answer to a question put at the hearing in this connection, the applicant confirmed that he was pleading the illegality of Decisions MB-22-20 and MB-22-21 on the selection procedure by referring, in general terms, to the arguments he had raised in connection with Decision MB-22-19 on the non-proposal of extension of his term of office. However, at no point in the application is that line of argument adapted to Decisions MB-22-20 and MB-22-21 on the selection procedure.

95Thus, it must be held that the conditions of Article 76(d) of the Rules of Procedure are not satisfied, since such a reference in general terms to other parts of the application requires the Court to try to identify the arguments which seem to it to be capable of relating to the alleged illegality of Decisions MB-22-20 and MB-22-21 on the selection procedure (see, to that effect, order of 6 June 2024, Lucaccioni v Commission, T‑516/23, not published, EU:T:2024:386, paragraph 24), so that the application does not unequivocally show what the applicant intended to plead in that regard.

96Lastly, if the applicant intended to argue that the illegality of Decisions MB-22-20 and MB-22-21 on the selection procedure flowed directly from the illegality of Decision MB-22-19 on the non-proposal of extension of his term of office, the conditions of Article 76(d) of the Rules of Procedure likewise are not satisfied, since, in the absence of any explanation in that regard (see paragraph 93 above), it has not been established that the defects allegedly vitiating the latter decision (see paragraph 80 above) could also call in question the legality of Decisions MB-22-20 and MB-22-21 on the selection procedure, having regard to the distinct nature of those decisions.

97In the light of the foregoing, the claims for annulment in Case T‑435/23 must be rejected as inadmissible in so far as they concern Decisions MB-22-20 and MB-22-21 on the selection procedure, since, irrespective of the issue of whether those decisions constitute acts open to challenge, the conditions of Article 76(d) of the Rules of Procedure have not been satisfied.

The claim for annulment in Case T‑224/24, in so far as it concerns the legality of the decision not to extend the term of office

98In the single plea in Case T‑224/24, the applicant seeks the annulment of the decision not to extend the term of office, submitting, first, that it does not comply with the procedure provided for in Article 158 of Regulation 2017/1001 in that it is vitiated by the lack of competence of the author of the act and a breach of the right to be heard, secondly, that it is vitiated by a manifest error of assessment and, thirdly, that it is in breach of the principles of non-discrimination, equal treatment and protection of legitimate expectations.

99As regards the alleged breach of the right to be heard under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, which must be examined first, the applicant submits that he was not given the opportunity to present his observations before the adoption of the decision not to extend the term of office.

100The Council contends that there was no breach of the right to be heard, and puts forward a number of arguments in that connection.

101First, the Council argues that the right to be heard does not apply in the present case, since the procedure for appointing the Executive Director and that for extending his term of office fall neither within the scope of the Staff Regulations nor within that of the CEOS. By contrast, the Council acted as a political authority deciding on the possible extension of the term of office for a position entailing a ‘special high-level responsibility within the institutional system of the European Union’, in the context of which it assessed the future tasks and challenges of EUIPO and decided on the choice of the person it considered best suited to face them in the next five years.

102The Council adds that the procedure on a possible extension of the term of office of the Executive Director is equivalent to the procedure for the selection of a new Executive Director, the only difference being that, in the procedure for a possible extension of the term of office, the Management Board is not required to draw up a list of candidates. However, in both cases, there is no right to be heard for the unsuccessful candidate.

103Secondly, the Council takes the view that the applicant was indeed heard, since, in the first place, according to his obligations under Article 157 of Regulation 2017/1001 as Executive Director, he reported regularly to the Management Board on his activities and, in the second place, he participated actively in the preparation of the note of 31 October 2022. Accordingly, the Council argues that the applicant agreed on the facts and elements gathered by the Management Board and presented to the Council as part of the assessment made under Article 158(3) of that regulation.

104Thirdly, the Council contends that the result of the procedure would not have been different if the applicant had been heard, since it is difficult to see what additional elements the applicant could have brought that would have been capable of substantially changing the decision not to extend the term of office inasmuch as, in the present case, the choice was binary, between the extension or non-extension of his term of office, taking into account the assessment of his past performance as the Executive Director and the future tasks and challenges of EUIPO.

105It must be recalled in that regard, at the outset, that Article 41(2)(a) of the Charter of Fundamental Rights provides that the right to good administration includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken.

106The right to be heard requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they can effectively make known their views on the evidence against them forming the basis of the contested measure in the context of an oral or written exchange initiated by the administration (judgment of 19 December 2019, Probelte v Commission, T‑67/18, EU:T:2019:873, paragraph 86 and the case-law cited; see also, to that effect, judgments of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 45 and the case-law cited, and of 9 February 2022, Van Walle v ECDC, T‑33/20, not published, EU:T:2022:60, paragraph 133 and the case-law cited).

107Moreover, the right to be heard requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case, and must allow them to investigate the matter in such a way as to be able to adopt a decision in full knowledge of the facts and to state reasons for that decision adequately, so that, where appropriate, the person concerned can duly exercise his or her right to bring legal proceedings (see judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraphs 26 and 27 and the case-law cited).

108In the first place, so far as concerns the applicability, in the present case, of the right to be heard, it must be recalled that that right applies to any procedure initiated against a person and which may adversely affect his or her interests, even where the applicable rules do not provide for it (judgment of 8 May 2019, PT v EIB, T‑571/16, not published, EU:T:2019:301, paragraph 164 and the case-law cited).

109It must be noted in this connection that, by email of 3 August 2022, the applicant expressly confirmed his wish to maintain his post within EUIPO and his availability to do so (see paragraph 4 above), so that the decision not to extend the term of office must considered to have been adopted following a request on his part seeking the extension of his term of office (see, to that effect, judgment of 25 September 2024, Kirimova v EUIPO, T‑727/20 RENV, EU:T:2024:646, paragraphs 76 and 77 and the case-law cited).

110Given that a decision not to extend the term of office inevitably leads to the non-renewal of the applicant’s contract as a member of the temporary staff of EUIPO (see, to that effect, judgment of 12 October 2022, Van Walle v ECDC, T‑83/21, not published, EU:T:2022:626, paragraph 33 and the case-law cited), it adversely affects the applicant, so that the right to be heard applies in that situation.

111That conclusion cannot be called into question by the arguments put forward by the Council.

112First of all, the fact that the Council allegedly acted as a ‘political authority’ deciding on the possible extension of the term of office of a member of staff exercising ‘special high-level responsibility within the institutional system of the European Union’ is of no relevance, since EU law does not provide for such exceptions to the right to be heard.

113Next, the issue of whether the procedure for the appointment of the Executive Director and the extension of his term of office, as provided for in Article 158(2) and (4) of Regulation 2017/1001, falls within the scope of the Staff Regulations and the CEOS is also of no relevance. As stated in paragraph 108 above, the right to be heard applies to any procedure initiated against a person and which may lead to an act adversely affecting his or her interests, irrespective of whether the procedure concerned is provided for in the Staff Regulations or the CEOS or in the applicable legislation.

114Lastly, the Council’s argument that the applicant had no right to be heard given that the procedure on a possible extension of the term of office of the Executive Director is equivalent to the procedure for the selection of a new Executive Director must be rejected.

115In that regard, it is sufficient to note that a procedure for the selection of a new Executive Director carried out under Article 158(2) of Regulation 2017/1001 contains only the assessment of the abilities of the various candidates in the light of the selection criteria. By contrast, a procedure for a possible extension of the term of office of the Executive Director carried out under Article 158(3) and (4) of that regulation, first, involves (i) an evaluation of the performance of the acting Executive Director during his term of office and (ii) the adoption of a decision taking into account that evaluation and the future tasks and challenges of EUIPO. Secondly, that procedure is characterised by the fact it culminates in the adoption of an individual measure within the meaning of Article 41(2)(a) of the Charter of Fundamental Rights.

116In the second place, so far as concerns the Council’s argument that the applicant, in any event, had the opportunity to put forward his view, it must be noted that the applicant’s interest in being heard arose above all once it had become apparent, at the end of the meeting of the Management Board on 22 November 2022, that there was no majority on that board in favour of an extension of his term of office. Prior to that point, the applicant knew only of the note of 31 October 2022, the content of which was positive in his regard and which contained a recommendation from the Chairperson of the Management Board to extend his term of office. Thus, the Council had to give the applicant an opportunity to exercise effectively his right to be heard at an appropriate point between the meeting of the Management Board on 22 November 2022 and the adoption of the decision not to extend the term of office.

117For the same reason, contrary to what the Council contends, the regular exchange between the Management Board and the applicant concerning the latter’s activities as Executive Director and his collaboration in the note of 31 October 2022 did not enable him effectively to make known his views concerning a possible non-renewal of his term of office, as required by the case-law cited in paragraph 106 above.

118In that regard, the right to be heard requires that the person concerned be placed in a position in which he or she can effectively make known his or her views on the evidence against him or her forming the basis of the contested measure (see paragraph 106 above). Even if the applicant could have presented observations on the note of 31 October 2022, which was favourable in his regard, it must be observed that, in order to adopt the Decision not to extend the term of office, the Council also took into account Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office, on which the applicant was not heard.

119Having regard to the foregoing, it must be held that the right to be heard was not observed.

120In the third place, so far as concerns the issue of whether the outcome of the procedure could have been different if the applicant had been heard, it must be recalled that, even where there has been a breach of the right to be heard, it is necessary, for the plea to be upheld, that, had it not been for that irregularity, the outcome of the procedure could have been different (see judgment of 6 February 2007, Wunenburger v Commission, T‑246/04 and T‑71/05, EU:T:2007:34, paragraph 149 and the case-law cited). In that context, an applicant who relies on breach of his or her right to be heard cannot be required to show that the decision of the EU institution concerned would have been different in content but simply that such a possibility cannot be totally ruled out (see, to that effect, judgment of 25 September 2024, Kirimova v EUIPO, T‑727/20 RENV, EU:T:2024:646, paragraph 78 and the case-law cited).

121In that regard, contrary to what the Council contends, the applicant could have provided it with explanations or clarification as regards the non-extension of his term of office. Even though a decision on the possible extension of the Executive Director’s term of office reflects not only the personal qualities and achievements of that director, but also considerations of a general, or even political, nature, that does not call into question the fact that these are, by definition, matters on which the applicant could have provided potentially relevant explanations. Consequently, it cannot be ruled out that the procedure could have culminated in a different outcome.

122In addition, it is apparent from the file that the Member States, which are represented both on the Management Board and in the Council, had, at the stage of the assessment under Article 158(3) of Regulation 2017/1001, diverging opinions on the possible extension of the applicant’s term of office. Within the Management Board, there were 11 votes in favour of such an extension, 7 against and 12 abstentions. Given that the Council adopts the decision under Article 158(4) of Regulation 2017/1001 by simple majority, it cannot be ruled out that the number of Member States required to shift the majority in the applicant’s favour would have changed after those States had become acquainted with the additional observations that the applicant should have been able to submit at an appropriate point between the meeting of the Management Board on 22 November 2022 and the adoption of the decision not to extend the term of office.

123In the light of the foregoing, the decision not to extend the term of office must be annulled, without there being any need to rule on the other arguments raised by the applicant under the single plea in Case T‑224/24.

The claims for annulment in Case T‑435/23 in so far as they are directed against Decision MB-23-04 suspending the delegation of the appointing authority powers

124The applicant claims that Decision MB-23-04 suspending the delegation of the appointing authority powers is illegal, that decision entailing the suspension of the delegation of the appointing authority powers conferred upon him and the limitation of his powers to the daily business management for the functioning of EUIPO, inasmuch as that decision infringes, first, his right to be heard, secondly, Article 157 of Regulation 2017/1001 and, thirdly, Article 4 of Decision MB-17-01 and the principle of proportionality.

125It is necessary to examine that last argument first.

–The scope of Decision MB-23-04 suspending the delegation of the appointing authority powers

126It must be recalled that, in Decision MB-23-04 suspending the delegation of the appointing authority powers, after the information that the Management Board had decided to suspend the delegation to the applicant of the appointing authority powers, it is stated that ‘the Management Board decided to limit [the applicant’s] power … to the daily business management for the functioning of [EUIPO], not impacting the future of [EUIPO], nor binding the upcoming Executive Director’.

127However, in the decision rejecting the complaint against Decision MB-23-04, it is stated that only the delegation to the applicant of the appointing authority powers had been suspended and that all the other powers conferred on the applicant, inter alia under Article 157 of Regulation 2017/1001, remain effective.

128It must be held, having regard to the decision rejecting the complaint against Decision MB-23-04, whose statement of reasons must be taken into account to assess the legality of Decision MB-23-04 suspending the delegation of the appointing authority powers (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, and judgment of 23 March 2022, NV v eu-LISA, T‑661/20, EU:T:2022:154, paragraphs 31 and 33 (not published) and the case-law cited), that only the delegation to the applicant of the appointing authority powers was suspended. It must also be noted that the applicant is challenging the legality of that suspension only.

–The admissibility of the claims for annulment in Case T‑435/23 in so far as they are directed against Decision MB-23-04 suspending the delegation of the appointing authority powers, and the applicant’s interest in bringing proceedings

129EUIPO disputes, in the present case, the existence of an act having an adverse effect and that of an interest in bringing proceedings, which are conditions which any action for annulment must satisfy to be admissible.

130So far as concerns the existence of an act having an adverse effect, in the first place it must be held that, having regard to the nature and scope of the appointing authority powers, by suspending the delegation of those powers, Decision MB-23-04 suspending the delegation of the appointing authority powers produced binding legal effects such as to affect the applicant’s interests by bringing about a distinct change in his legal position (see, to that effect, judgments of 22 October 2002, Pflugradt v ECB, T‑178/00 and T‑341/00, EU:T:2002:253, paragraph 81, and of 1 September 2021, KN v EESC, T‑377/20, EU:T:2021:528, paragraph 74).

131In the second place, in the decision rejecting the complaint against Decision MB-23-04 suspending the delegation of the appointing authority powers, the Management Board puts forward a loss of confidence in the applicant’s capacity to exercise his role as appointing authority in an impartial and objective manner in the interest of EUIPO, invoking five incidents linked to the applicant’s conduct. That is liable to lead to significant consequences for the applicant, both on the professional and on the personal level (see, by analogy, judgment of 15 June 2000, F v Commission, T‑211/98, EU:T:2000:153, paragraphs 30 and 31).

132It follows that Decision MB-23-04 suspending the delegation of the appointing authority powers is such as to adversely affect the applicant within the meaning of Article 91(1) of the Staff Regulations.

133So far as concerns the interest in bringing proceedings, EUIPO submits that the applicant has lost his interest in bringing proceedings, since Decision MB-23-04 suspending the delegation of the appointing authority powers was valid until the end of the applicant’s term of office, and it is no longer in force. Accordingly, the applicant can no longer procure any benefit from its annulment.

134The applicant claims that the annulment of Decision MB-23-04 suspending the delegation of the appointing authority powers, which reflects a value judgment on the part of the Management Board and received a lot of internal and external attention, could contribute to his rehabilitation and constitute a form of reparation for the non-material harm he has suffered.

135In that regard, even if it follows from the case-law that the interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 42 and 43), the Court has acknowledged that an applicant’s interest in bringing proceedings does not necessarily disappear on account of the fact that the act challenged by the latter had ceased to produce effects during the proceedings. An applicant may retain an interest in obtaining a declaration that the act in question is unlawful for the period during which it was applicable and had effect, and such a declaration continues to be at least of interest as a basis for a possible action for damages (see judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraph 41 and the case-law cited).

136In the present case, it must be stated that on 1 October 2023 the applicant’s term of office ended, so that Decision MB-23-04 suspending the delegation of the appointing authority powers ceased to produce legal effects in his regard. However, it must be observed, first, that the claims for damages in Case T‑435/23 are based in part on the alleged illegality of that decision and, secondly, that the harm which the applicant claims to have suffered in that regard is linked to the damage to his professional reputation.

137It follows that an annulment of Decision MB-23-04 suspending the delegation of the appointing authority powers is such as to procure an advantage for the applicant, so that he has retained his interest in bringing proceedings against that decision and that the arguments which he has raised in that regard must be examined, beginning with those relating to an infringement of Article 4 of Decision MB-17-01 and of the principle of proportionality.

–The merits of the claims for annulment in Case T‑435/23 in so far as they are directed against Decision MB-23-04 suspending the delegation of the appointing authority powers

138As stated in paragraph 124 above, the applicant submits, inter alia, that Decision MB-23-04 suspending the delegation of the appointing authority powers infringes Article 4 of Decision MB-17-01 and the principle of proportionality, inasmuch as the Management Board may decide to suspend the delegation of the appointing authority powers only in exceptional circumstances, which do not pertain in the present case.

139Specifically, the applicant refers to the five incidents invoked in the decision rejecting the complaint against Decision MB-23-04 for the purposes of justifying the suspension of the delegation of the appointing authority powers which he had been granted (see paragraph 131 above), namely (i) the sending, by an email from one of his lawyers, to the Secretary General of the Council, and to the Secretary General of the Commission, putting the Director-General of the Internal Audit Service of the latter in copy, of a copy of his complaint against Decision MB‑22-19 on the non-proposal of extension of his term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure; (ii) his request that the contents of the minutes of the meeting of the Management Board of 22 November 2022 be amended; (iii) the letter of 3 February 2023 from his lawyers to the Chairperson of the Management Board, enquiring about the measures taken in response to the disclosure, in various Spanish newspapers, of the result of the meeting of that board on 22 November 2022; (iv) his failure to declare a conflict of interest as regards his participation in the Preparatory Subcommittee for the selection of the future Executive Director and (v) his decision not to renew, in January 2023, the contracts of six national experts seconded to EUIPO, which were approaching their terms.

140According to the applicant, the incidents referred to in paragraph 139 above do not constitute exceptional circumstances within the meaning of Article 4 of Decision MB-17-01 and cannot substantiate the legality of the suspension of the appointing authority powers which were conferred upon him.

141In its pleadings, EUIPO, supported by the Republic of Poland and the Slovak Republic, does not contest the applicant’s arguments with regard to the five abovementioned incidents, but states, in general terms, that some actions and statements on the part of the applicant and some incidents he instigated gave rise to a risk for the management of EUIPO.

142In addition, EUIPO invokes other incidents which occurred following the adoption of Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and of Decision MB-23-04 suspending the delegation of the appointing authority powers, which allegedly constitute proof of the applicant’s vindictive and antagonistic attitude towards the Management Board.

143First of all, the applicant allegedly attempted to use EUIPO’s resources to challenge Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure and to gain access to confidential documents, by requesting EUIPO staff to prepare an analysis for him regarding a potential complaint against those decisions, including a potential conflict of interest on the part of certain Management Board members, and to review the taxation of damages paid as a result of an amicable settlement or on the basis of a judgment. Next, he openly expressed his lack of confidence in the trustworthiness and professionalism of the staff of the secretariat of the Management Board. Lastly, he allegedly envisaged taking individual retaliation measures against the Head of the Institutional Relations Service by exploring the possibility of not confirming her in her post at the end of her probationary period and by refusing, after initially approving, her participation in the 2023 International Trademark Association (INTA) Annual Meeting.

144According to EUIPO, the facts referred to in paragraph 143 above, viewed together, demonstrate that the applicant’s independence and objectivity as the Executive Director was impaired, thereby significantly reducing the trust of the Management Board in his capacity to manage objectively the appointing authority powers.

145In that regard, it must be recalled at the outset that Article 4 of Decision MB-17-01 and the third subparagraph of Article 153(2) of Regulation 2017/1001 provide that the delegation of the appointing authority powers to the Executive Director may be temporarily suspended where ‘exceptional circumstances’ so require.

146In that connection, the Management Board has a wide discretion when it assesses the condition in relation to exceptional circumstances, a decision suspending the appointing authority powers being adopted in the context of the organisation of its departments. Having regard to the extent of that discretion, review by the General Court of compliance with the condition relating to the exceptional circumstances must be limited to the question whether EUIPO remained within reasonable limits and did not use its discretion in a manifestly incorrect fashion (see, to that effect and by analogy, judgment of 7 June 2018, OW v EASA, T‑597/16, not published, EU:T:2018:338, paragraphs 41 and 42).

147In that context, the decision rejecting the complaint against Decision MB-23-04 set out, in general terms, that some actions and statements on the part of the applicant and some incidents he instigated, such as requests to EUIPO staff to give priority to his personal interests by requiring those staff members to obtain, for his personal benefit, access to documents and information, undermined the legitimate role of the Management Board, which raised serious doubt as regards the applicant’s loyalty towards EUIPO in general and the Management Board in particular and led to a loss of confidence in his capacity to exercise his role as appointing authority in an impartial and objective manner in the interests of EUIPO.

148According to the decision rejecting the complaint against Decision MB-23-04, that conclusion follows in particular from the five incidents referred to in paragraph 139 above.

149In that regard, so far as concerns the first incident referred to above (see paragraphs 17 and 139 above), it is necessary at the outset to draw attention to the legitimate right of any member of staff of EUIPO, such as the Executive Director, to bring a complaint under Article 90(2) of the Staff Regulations against a decision adversely affecting him or her, which is indeed expressly acknowledged in Decision MB-23-04 suspending the delegation of the appointing authority powers and by EUIPO in its defence.

150Thus, [] the complaint against Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure to the Secretary General of the Council, which the applicant is alleged in this context to have sent, cannot be regarded as inappropriate, given that it is for the Council to adopt, taking account of the assessment made by the Management Board under Article 158(3) of Regulation 2017/1001, the final decision on a possible extension of the applicant’s term of office (see paragraph 84 above), and that, accordingly, the applicant had a legitimate interest in ensuring that the Council knew about the alleged illegalities vitiating those decisions.

151As regards the complaint against Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure to the Secretary General and Director-General of the Internal Audit Service of the Commission, which the applicant is also alleged in this context to have sent, it must be noted that the Commission has, under Article 154(1) of Regulation 2017/1001, two representatives within the Management Board, so that it would have been informed in any case of the filing of that complaint and that, accordingly, sending it to the Commission had no consequence in practice.

152So far as concerns the second incident referred to above (see paragraphs 14 and 139 above), it is stated in the decision rejecting the complaint against Decision MB-23-04 that the applicant tried to influence the contents of the minutes of the meeting of the Management Board of 22 November 2022 and to circumvent the process for their adoption, requesting the addition to the minutes of statements he had made during that meeting which allegedly do not correspond to the recordings.

153However, it is sufficient to note that it is apparent from the file that, on 12 June 2023, that is to say, before the adoption of the decision rejecting the complaint against Decision MB-23-04, the Management Board supplemented the minutes with a summary of the statements which the applicant had requested be added, so therefore EUIPO acknowledged the legitimacy of the applicant’s requests.

154So far as concerns the third incident referred to above (see paragraphs 9, 15 and 139 above), it must be recalled that, in the decision rejecting the complaint against Decision MB-23-04, the applicant is alleged to have requested the Chairperson of the Management Board, by a letter from his lawyers dated 3 February 2023, to notify the European Data Protection Supervisor (EDPS) of the disclosure, in various Spanish newspapers, of the result of the meeting on 22 November 2022 of that Board as a personal data breach under Article 34(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39). Specifically, it is argued that the letter concerned was sent late, namely more than two months after the event, and that such disclosure does not constitute a personal data breach.

155It must be recalled in that connection that, in the letter of 3 February 2023, the applicant’s lawyers claimed that the disclosure at issue constituted, first, a breach of the obligation of confidentiality borne by the members of the Management Board under Article 15 of the Rules of Procedure of the Management Board and, secondly, a personal data breach within the meaning of Article 3(16) of Regulation 2018/1725.

156In that regard, in the decision rejecting the complaint against Decision MB-23-04, it is disputed neither that the result of the meeting of the Management Board of 22 November 2022 had been disclosed to the Spanish press before even the applicant had been informed of it, nor that that was contrary to Article 15 of the Rules of Procedure of the Management Board. However, without addressing the issue of whether that disclosure constitutes a personal data breach within the meaning of Article 3(16) of Regulation 2018/1725, it is stated in that decision that the disclosure of that type of information, including the extension of terms of office such as that at issue, is an established practice of the Management Board put in place by the applicant himself and that the information concerned cannot be considered personal data.

157Yet, as the applicant claims, without being contradicted by EUIPO, the disclosure at issue cannot be compared to that of other members of staff or officials of EUIPO whose appointments were communicated to the public once they had become final and they had been informed of them, since the present case concerned a negative decision of the Management Board which had been disclosed at a premature stage, that is to say, before the Council’s final decision on the possible extension of his term of office and before even he had been officially informed of it. Thus, it cannot be regarded as inappropriate for the applicant to have criticised, before the Chairperson of the Management Board, that disclosure.

158So far as concerns the fourth incident referred to above (see paragraphs 18, 21 and 139 above), it must be borne in mind that, after the applicant stated, in a telephone conversation with the Chairperson of the Management Board on 22 February 2023, that he did not believe himself to be in a position of conflict of interest, he stated, in his note of 1 March 2023 sent to the members of the Management Board (see paragraph 21 above), that, if that board decided to exclude him from the Preparatory Subcommittee for the selection of the future Executive Director, he would accept it. He did not file a complaint against Decision MB-23-03 excluding him from that subcommittee.

159It follows that the only complaint made against the applicant relates to the fact that he had an opinion differing from that of the Chairperson of the Management Board with regard to the existence of a conflict of interest which does not, however, establish inappropriate conduct on the applicant’s part.

160So far as concerns the fifth incident referred to above (see paragraphs 12 and 139 above), the applicant stated, without being contradicted by EUIPO, that the non-renewal of the contracts of six national experts seconded to EUIPO was not motivated by the fact that those national experts were from Member States which had not supported the extension of his term of office, but by budgetary reasons. Consequently, there is no evidence that the applicant acted inappropriately in connection with that non-renewal.

161It follows that none of the five incidents mentioned in paragraph 139 above indicates inappropriate conduct on the applicant’s part, so that those incidents are not such as to constitute exceptional circumstances within the meaning of Article 4 of Decision MB-17-01.

162As regards the incidents relied on by EUIPO in its defence (see paragraphs 142 and 143 above), the applicant submits that these are new items of information which are not included in Decision MB-23-04 suspending the delegation of the appointing authority powers.

163It must be recalled in that regard that the statement of reasons must, in principle, be communicated to the person concerned at the same time as the act adversely affecting him or her. It is only where there are exceptional circumstances that supplementary reasons, provided in the course of the procedure, may be taken into account for the purposes of assessing the legality of that decision (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraphs 51 and 52 and the case-law cited).

164EUIPO contends that the incidents relied on in its defence further clarify those which are included in the decision rejecting the complaint against Decision MB-23-04, without however stating to which aspects of Decision MB-23-04 suspending the delegation of the appointing authority powers that information relates.

165In that context, it must be found that, apart from the five incidents specifically mentioned in paragraph 139 above, the decision rejecting the complaint against Decision MB-23-04 refers only to some actions and statements on the part of the applicant, such as requests to EUIPO staff to give priority to his personal interests by requiring those staff members to obtain, for his own advantage, access to documents and information (see paragraph 147 above).

166First, that general reference to the applicant’s actions is insufficient and did not enable the applicant to understand that it related to the criticism made by EUIPO that he had ‘openly expressed his lack of confidence in the trustworthiness and professionalism of staff pertaining to [that] secretariat’ (see paragraph 143 above), which amounts to a failure to state reasons in that regard (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 55 and the case-law cited).

167Secondly, the same is true as regards the allegation that the applicant took retaliation measures against the Head of the Institutional Relations Service (see paragraph 143 above).

168In addition, as regards those retaliation measures, the applicant explained, without being contradicted by EUIPO, that it was apparent from the appraisal reports of that head of service that that staff member’s performance and conduct had posed problems since 2022, that her participation in the INTA Annual Meeting had been refused primarily to save costs and that, in any event, EUIPO ultimately had not participated in that meeting.

169Thirdly, as regards the incident relating to an alleged request by the applicant to EUIPO staff to prepare for him an analysis regarding a potential complaint against Decision MB-22-19 on the non-proposal of extension of his term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure and to investigate about taxation of damages paid as a result of an amicable settlement or on the basis of a judgment (see paragraph 143 above), it cannot be ruled out that the reference to some actions and statements, such as requests to EUIPO staff, made in Decision MB-23-04 suspending the delegation of the appointing authority powers, relates to that incident.

170However, it is only in exceptional cases that the statement of reasons for a contested decision may be supplemented by explanations provided during the proceedings (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 59). In that regard, it is sufficient to state that no information in the file suggests that the circumstances of the case were such that EUIPO was not in a position to state to the requisite standard what the ‘requests [to] staff’ were in the present case.

171In any event, it must be stated that EUIPO has provided no evidence in support of its contentions, whereas, at the hearing, the applicant expressly challenged those allegations and explained that he had contacted an external lawyer for that purpose.

172In addition, even if the applicant’s requests to EUIPO staff were taken into account in Decision MB-23-04 suspending the delegation of the appointing authority powers, it should be observed that that decision contains no information from which it could be concluded that the suspension of the delegation to the applicant of the appointing authority powers is a proportionate measure by virtue of that incident alone, all the other incidents and conduct of which he is accused being insufficient to warrant that suspension, as is apparent from the abovementioned considerations.

173In the light of the foregoing, the applicant’s argument relating to an infringement of Article 4 of Decision MB-17-01 must be upheld, and consequently Decision MB-23-04 suspending the delegation of the appointing authority powers must be annulled, without it being necessary to rule on the other arguments raised by the applicant.

The claims for compensation

174In terms of material harm, the applicant requests the Court to order EUIPO and the Council jointly in Case T-435/23 and the Council in Case T-224/24 to pay compensation amounting, in each case, to EUR 364 728.64. In that regard, the applicant submits, in essence, that the decisions adopted by EUIPO and the Council which led to the non-extension of his term of office as the Executive Director have resulted in that harm.

175In terms of non-material harm, the applicant requests that EUIPO be ordered, in Case T‑435/23, and the Council be ordered, in Case T‑224/24, to pay him EUR 125000, inasmuch as Decision MB-22-19 on the non-proposal of extension of his term of office, Decisions MB‑22-20 and MB-22-21 on the selection procedure, Decision MB‑23‑04 suspending the delegation of the appointing authority powers, the decision not to extend the term of office and the disclosure of certain information impaired his professional reputation.

176In that regard, it must be recalled that the admissibility of an action for compensation brought before the General Court under Article 270 TFEU and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner and upon the prescribed time limits for that procedure being complied with (see order of 7 February 2017, Stips v Commission, T‑593/16, not published, EU:T:2017:71, paragraph 23 and the case-law cited).

177The pre-litigation procedure differs according to whether the harm in respect of which reparation is sought results from an act adversely affecting the applicant, within the meaning of Article 90(2) of the Staff Regulations, or conduct on the part of the administration which is not in the nature of a decision (order of 14 December 2022, Baert v Commission, T‑111/22, not published, EU:T:2022:823, paragraph 66).

178In the former of the cases referred to in paragraph 177 above, the onus is on the official or staff member concerned to submit a complaint against the act in question to the appointing authority within the prescribed period. According to settled case-law, a claim for compensation in respect of material or non-material harm must be dismissed where it is closely linked to an action for annulment which has itself been dismissed as inadmissible or unfounded (see judgment of 24 November 2021, CX v Commission, T‑743/16 RENV II, not published, EU:T:2021:824, paragraph 417 and the case-law cited).

179In the second of the cases referred to in paragraph 177 above, however, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request (see judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 124 and the case-law cited).

180The claims for compensation made by the applicant, in the first place, in Case T‑435/23 and, in the second place, in Case T‑224/24, must be assessed in the light of those factors.

The claims for compensation in Case T‑435/23

–Material harm

181So far as concerns material harm, it must be observed that the claim for compensation is closely linked to the claims for annulment of the decision not to extend the term of office, Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure, which are however inadmissible (see paragraphs 74, 90 and 97 above). It follows that that claim is also inadmissible.

–Non-material harm

182So far as concerns non-material harm, it must be recalled that the claim for compensation is based, first, on the illegality of Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure and on the disclosure of the result of the Management Board’s vote in the press and, secondly, on the illegality of Decision MB-23-04 suspending the delegation of the appointing authority powers and on the communication of the content of that decision to EPSO staff and its subsequent disclosure to the press.

183In so far as the claim for compensation is based on the alleged illegality of Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure, it must be rejected as inadmissible for the reasons given in paragraph 178 above, inasmuch as the claims for annulment of those decisions are also inadmissible (see paragraphs 90 and 97 above).

184In addition, in so far as the claim for compensation is based on the disclosure in the Spanish press of the result of the Management Board’s vote (see paragraph 9 above), the harm alleged must be regarded as the consequence of conduct of EUIPO distinct from Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure.

185It must be observed in that context that although, in his complaint of 17 February 2023 which he addressed to EUIPO against Decision MB-22-19 on the non-proposal of extension of his term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure, the applicant expressly requested compensation in respect of the non-material harm he had allegedly incurred in connection with the disclosure in the Spanish press of the result of the Management Board’s vote, the fact remains, however, that following the rejection of that request on 16 June 2023, the applicant did not submit a complaint against that rejection decision pursuant to Article 90(2) of the Staff Regulations (see, to that effect, judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 125 and the case-law cited).

186Thus, since the applicant did not observe the two stages of the pre-litigation procedure referred to in paragraph 179 above, that claim for compensation must be rejected as inadmissible.

187Furthermore, inasmuch as the claim for compensation in connection with non-material harm is based on the alleged illegality of Decision MB-23-04 suspending the delegation of the appointing authority powers, it is closely linked to the claim for annulment of that decision, which is admissible and well founded (see paragraphs 137 and 173 above).

188It must be recalled in that regard that it is settled case-law that, where the claim for compensation is based on the unlawfulness of the annulled measure, the annulment ordered by the court may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material harm which that measure may have caused, except where the applicant shows that he or she has suffered non-material harm which is incapable of being entirely repaired by that annulment (see, to that effect, order of 3 September 2019, FV v Council, C‑188/19 P, not published, EU:C:2019:690, paragraph 26, and judgment of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 86).

189It must be held that the applicant does not raise any specific argument demonstrating that the non-material harm he allegedly suffered cannot be compensated for in full by the annulment of Decision MB-23-04 suspending the delegation of the appointing authority powers.

190In addition, so far as concerns the alleged non-material harm stemming from the communication to EUIPO staff of the content of Decision MB‑23-04 suspending the delegation of the appointing authority powers and its subsequent disclosure to the press, it must be stated that, although the applicant, in his complaint of 17 March 2023 addressed to the Council, expressly requested compensation in respect of the non-material harm he allegedly suffered in connection with those facts, which have no direct link with the action for annulment brought against that decision, the fact remains that the applicant did not however, following the rejection of that request on 17 July 2023, file a complaint against that rejection decision, in accordance with Article 90(2) of the Staff Regulations (see, to that effect, judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 125 and the case-law cited). Thus, since the applicant did not observe the two stages of the pre-litigation procedure referred to in paragraph 179 above, that claim for compensation must be rejected as inadmissible.

191In the light of the foregoing, the claims for compensation in Case T‑435/23 must be dismissed.

The claims for compensation in Case T‑224/24

–Material harm

192So far as concerns material harm, it must be recalled that the claim for compensation is closely linked to the claim for annulment of the decision not to extend the term of office, which is admissible and well founded (see paragraph 123 above).

193In that context, the applicant submits that he lost the opportunity to see his term of office extended until his retirement, with the ensuing material consequences.

194It is apparent from the case-law in that connection that, to be taken into account, the loss of an opportunity must be actual and definitive (see judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 83 and the case-law cited).

195In order to determine whether there has been an actual loss of opportunity, it is necessary to examine whether it has been established to the requisite legal standard that the applicant was deprived not necessarily of the extension of his term of office, which he can never prove would have occurred, but of a genuine opportunity to have his term of office extended, with material damage for the applicant consisting of loss of income (see, to that effect, judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 86 and the case-law cited).

196The existence of that 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 harm suffered and of its compensation (see, to that effect, judgment of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 119).

197In the present case, it must be held that the applicant suffered an actual loss of opportunity, inasmuch as the result of the procedure for the extension of his term of office could have been different had there been no breach of the right to be heard (see paragraphs 121 and 122 above), so that it has been established, to the requisite legal standard, that he was deprived of a genuine opportunity to have his term of office extended.

198Moreover, it must be noted that the applicant’s loss of opportunity is definitive, since the Council, on 19 July 2023, appointed [confidential] as the new Executive Director, so that the post for which the applicant was a candidate has been filled (see, to that effect, judgment of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 50).

199As regards compensation for the loss of opportunity, according to the case-law, in order to determine the amount of compensation to be paid in that respect, it is necessary, having identified the actual and definitive nature of the opportunity of which the official or staff member has been deprived, to determine the date from which he or she would have been given that opportunity, and then quantify that opportunity and, lastly, explain the financial consequences for the official or staff member of that loss of opportunity (see judgment of 15 December 2021, HB v EIB, T‑757/19, not published, EU:T:2021:890, paragraph 114 and the case-law cited).

200In addition, according to case-law, where possible, the opportunity of which an official 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 way, it is accepted that the damage suffered may be assessed ex æquo et bono (see judgment of 15 December 2021, HB v EIB, T‑757/19, not published, EU:T:2021:890, paragraph 115 and the case-law cited).

201In the present case, even though the applicant has provided a quantification of the amount which is to serve as the basis for the calculation of the compensation linked to the loss of opportunity, corresponding to the net remuneration which he would have received in the event of the extension of his term of office until his retirement less the total amount of pension rights he would have received during that period, it is impossible for the General Court to set a mathematical coefficient reflecting the applicant’s opportunity, inasmuch as the information for analysis provided by the parties in this respect lacks the necessary precision to enable that court to determine that coefficient (see, to that effect, judgments of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 120, and of 13 June 2019, CC v Parliament, T‑248/17 RENV, not published, EU:T:2019:418, paragraph 74).

202Therefore, making use of the option for the General Court to evaluate the damage suffered ex æquo et bono, a lump sum should be granted to the applicant, by way of compensation for the loss of opportunity he suffered on account of the illegality committed by the Council.

203Thus, in the circumstances of the present case, the entirety of the material damage incurred by the applicant will be fairly assessed by ordering the Council to pay him, ex æquo et bono, the lump sum of EUR 25000. In accordance with the form of order sought by the applicant to that effect, that sum must be paid together with default interest accruing as of the date of delivery of the present judgment until the date of payment of the total sum due, at a rate equal to that applied by the European Central Bank (ECB) to its main refinancing operations in force on the first day of the month in which payment falls due, increased by three and a half percentage points.

–Non-material harm

204So far as concerns the non-material harm, it must be stated that the claims for compensation seeking EUR 125000 by way of reparation for the non-material harm are based, first, on various actions by EUIPO, namely the adoption of Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and of Decisions MB-22-20 and MB-22-21 on the selection procedure, secondly, on a personal data breach which was allegedly discovered on 17 July 2023 and, thirdly, on the impact of the non-extension of the applicant’s term of office as Executive Director on his professional reputation.

205In this connection, first, in so far as the claim for compensation is based on Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure, it must be dismissed, in that those decisions were not adopted by the Council but by EUIPO.

206Secondly, inasmuch as the personal data breach is the result of conduct on the part of the Council which is not in the nature of a decision, it must be stated that, although the applicant, in his complaint of 30 August 2023 addressed to the Council against the decision not to extend the term of office, expressly requested compensation in respect of the non-material harm he allegedly suffered in connection with those facts, which have no direct link with the claim for annulment brought against that act, the fact remains that the applicant did not however, following the rejection of that request on 27 February 2024, file a complaint against that rejection decision, in accordance with Article 90(2) of the Staff Regulations (see, to that effect, judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 125 and the case-law cited).

207Thus, since the applicant did not observe the two stages of the pre-litigation procedure referred to in paragraph 179 above, that claim for compensation must be rejected as inadmissible.

208In addition, inasmuch as the claim for compensation is based on the illegality of the decision not to extend the term of office, it must be held that the applicant has not raised any specific argument demonstrating that the non-material harm he allegedly suffered cannot be entirely repaired by the annulment of that decision.

209Having regard to all those factors, all the claims made in respect of compensation for non-material harm in Case T‑224/24 must be dismissed.

210In the light of the foregoing, Decision MB-23-04 suspending the delegation of the appointing authority powers must be annulled in so far as it suspends temporarily the delegation to the applicant of the appointing authority powers, as must be the decision not to extend the term of office. Furthermore, the Council must be ordered to pay the applicant the sum of EUR 25000, together with default interest accruing as of the date of delivery of the present judgment and until the date of payment of the total sum due, at a rate equal to that applied by the ECB to its main refinancing operations in force on the first day of the month in which payment falls due, increased by three and a half percentage points. The actions are dismissed as to the remainder.

Costs

211Under 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. Furthermore, pursuant to Article 134(2) of the Rules of Procedure, where there are several unsuccessful parties the Court is to decide how the costs are to be shared. In addition, under Article 135(2) of the Rules of Procedure, the General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious. According to the case-law, the Court may order a party, even if successful, to pay some or all of the costs, where the dispute is in part attributable to the conduct of an EU institution or body (see judgment of 8 July 2015, European Dynamics Luxembourg and Others v Commission, T‑536/11, EU:T:2015:476, paragraph 391 (not published) and the case-law cited).

212In the present case, the applicant has admittedly been partly unsuccessful in the forms of order he sought, inasmuch as the claims for annulment brought in Case T‑435/23 against Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office, Decisions MB-22-20 and MB-22-21 on the selection procedure and the decision on the non-extension of the term of office, as well as the claims for compensation brought in that case and the claim for compensation seeking reparation of non-material harm made in Case T‑224/24 have been dismissed, therefore EUIPO and the Council may considered to be the successful parties in that regard.

213Nevertheless, the Court may inter alia order an institution whose decision has not been annulled to pay the costs on account of the inadequacy of that decision, which may have led an applicant to bring an action (see judgment of 22 April 2016, Italy and Eurallumina v Commission, T‑60/06 RENV II and T‑62/06 RENV II, EU:T:2016:233, paragraph 245 and the case-law cited).

214In that regard, Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office and Decisions MB-22-20 and MB-22-21 on the selection procedure incorrectly give the impression that the Management Board has taken a final decision not to extend the applicant’s term of office (see paragraphs 83 and 84 above). Indeed, Decision MB-22-19 on the non-proposal of extension of the applicant’s term of office is entitled ‘Decision not to submit to the Council of the European Union a proposal to extend the term of office of [the applicant]’, whereas, by Decisions MB-22-20 and MB-22-21 on the selection procedure, the Management Board launched the selection procedure for the applicant’s successor. That erroneous impression could have induced the applicant to bring the actions against those decisions.

215Likewise, as regards the decision not to extend the term of office, it was legitimate for the applicant to seek the annulment of that decision both in the action in Case T‑435/23 and in that in Case T‑224/24.

216In the light of those circumstances, the General Court considers that a fair assessment of the circumstances of the present case is to order EUIPO to bear its own costs and pay those of the applicant in Case T‑435/23 and to order the Council to bear its own costs in Cases T‑435/23 and T‑224/24 and to pay those of the applicant in Case T‑224/24.

217Furthermore, pursuant to Article 138(1) of the Rules of Procedure, the Republic of Latvia, the Republic of Poland, the Portuguese Republic and the Slovak Republic, which have intervened in the proceedings in Case T‑435/23, are to bear their own costs.

Operative part

On those grounds,THE GENERAL COURT (Intermediate Chamber)hereby:

1.Joins Cases T‑435/23 and T‑224/24 for the purposes of the judgment;

2.Annuls Decision MB-23-04 of the Management Board of the European Union Intellectual Property Office (EUIPO) of 6 March 2023 in so far as it temporarily suspends YL’s powers as the Appointing Authority and the Authority Empowered to Conclude Contracts of Employment;

3.Annuls the decision of the Council of the European Union not to extend the term of office of YL as Executive Director of EUIPO, as reflected in the letter of 30 May 2023 from the President of the Council to the Chairperson of the EUIPO Management Board;

4.Orders the Council to pay YL a sum of EUR 25000, together with default interest accruing as of the date of delivery of the present judgment and until the date of payment of the total sum due, at a rate equal to that applied by the European Central Bank (ECB) to its main refinancing operations in force on the first day of the month in which payment falls due, increased by three and a half percentage points;

5.Dismisses the actions as to the remainder;

6.Orders EUIPO to bear its own costs and to pay those of YL in Case T‑435/23;

7.Orders the Council to bear its own costs in Cases T‑435/23 and T‑224/24 and to pay those of YL in Case T‑224/24;

8.Orders the Republic of Latvia, the Republic of Poland, the Portuguese Republic and the Slovak Republic to bear their own costs.

Delivered in open court in Luxembourg on 10 September 2025.