TB v ENISA (Civil service - Members of the temporary staff - Reorganisation of ENISA - Order) [2023] EUECJ T-322/21

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(Civil service – Members of the temporary staff – Reorganisation of ENISA – Implied decision not to identify head of unit posts as capable of being filled by means of internal mobility – Resignation of the applicant – No longer any interest in bringing proceedings – No need to adjudicate)

European Union Agency for Cybersecurity (ENISA), represented by I. Taurina, G. Pappa and C. Chalanouli, acting as Agents, and by B. Wägenbaur, lawyer,

composed of L. Truchot, President, M. Sampol Pucurull and T. Perišin (Rapporteur), Judges,

1 By her action under Article 270 TFEU, the applicant, TB, seeks annulment of the implied decision of the European Union Agency for Cybersecurity (ENISA) not to identify the posts of Head of the Policy Office Unit and Head of the Finance and Procurement Unit as capable of being filled by means of internal mobility (‘the implied decision’), resulting from, first, in essence, the two vacancy notices of 5 August 2020 published on ENISA’s website concerning the posts of Head of the Executive Director Office Unit (ENISA-TA70-AD-2020-04) and Head of the Corporate Support Services Unit (ENISA-TA71-AD-2020-05) (together, ‘the vacancy notices of 5 August 2020’), and, secondly, Administrative Notice 2020-11 of 1 September 2020 on the conclusions of the dialogues for internal mobility (‘Administrative Notice 2020-11’). The applicant also seeks, in so far as necessary, annulment of, first, the vacancy notices of 5 August 2020 and Administrative Notice 2020-11, and, secondly, the decision of 3 March 2021 rejecting her complaint of 4 November 2020 against the implied decision, the vacancy notices of 5 August 2020 and Administrative Notice 2020-11 (together with the implied decision, ‘the contested acts’).

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

2 On 1 November 2017, the applicant was engaged by ENISA as a member of the temporary staff, at grade AD 9, under Article 2(f) of the Conditions of Employment of Other Servants of the European Union. She was recruited to fill the post of Head of the Finance and Procurement Unit for a period of three years until 31 October 2020.

3 The applicant was placed on sick leave between 15 May 2019 and 17 November 2019. Upon returning to work, she was readmitted as Head of the Policy Office Unit.

4 At the beginning of 2020, ENISA was reorganised, as a result of which the seven former units making up that agency, including the Finance and Procurement Unit and the Policy Office Unit, were restructured into six new units.

5 On 26 February 2020, the Management Board of ENISA adopted Decision No MB/2020/5 on principles for ENISA’s organisation. The ninth principle set out in that decision, entitled ‘Openness’, stated that ‘new functions and posts within the Agency [would] be filled through open competitions or internal mobility organised on the basis of open calls and through a transparent assessment of merits and talent’.

6 At a meeting held on 4 May 2020, ENISA’s Executive Director informed the applicant that, following the Agency’s reorganisation, the post of Head of the Finance and Procurement Unit would be abolished. A new unit, known as Corporate Support Services, would be created to deal with human resources, IT, and finance and procurement.

7 On 4 June 2020, ENISA adopted the Administrative Notice on the organisation of transfer of staff to the new structure of the Agency (‘the Administrative Notice on staff transfers’) in order to provide a framework for implementing all the processes involved in ENISA’s internal reorganisation and to establish the crucial elements for the organisation of job transfers.

8 The Administrative Notice on staff transfers provided, as regards the transfer of staff members, that if, following an assessment, the joint committee for the reorganisation of ENISA were to conclude that the staff member’s tasks and/or job description in the former units matched at least 75% of the tasks to be performed in a new structural unit, the appointing authority (‘the AA’) would offer the person concerned an automatic transfer to that new unit. As regards the transfer of managers, it was stated that the same rule would not automatically apply to senior management, as the posts of head of unit and team leader within the new structure were to be regarded as new posts. The AA would identify staff members in managerial posts whose former unit managed at least 75% of the Agency’s core tasks, which had to be in line with the tasks of the new structural unit. The AA would then offer a transfer to a managerial post by means of internal mobility.

9 The Administrative Notice on staff transfers also provided that, in the absence of an internal mobility decision and in the event of an unsatisfactory outcome of the internal competition or of consultation with the heads of the former units, the AA would open an external competition for the post of head of the new unit concerned.

10 On 5 August 2020, ENISA published two notices on its website concerning two open competitions to fill the posts of Head of the Executive Director Office Unit (ENISA-TA70-AD-2020-04) and Head of the Corporate Support Services Unit (ENISA-TA71-AD-2020-05), those units forming part of the six new units created following the Agency’s reorganisation.

11 On 1 September 2020, ENISA’s Executive Director adopted Administrative Notice 2020-11. That document presented the results of the dialogues conducted with the heads of unit who had been identified for internal mobility and stated that the comparison between, on the one hand, the tasks and functions of ENISA’s current structures and, on the other, the tasks and functions of the new units had made it possible to single out three head of unit posts which could be filled by internal mobility. The posts of Head of the Executive Director Office Unit and Head of the Corporate Support Services Unit were not among the units identified as capable of being filled by internal mobility.

12 On 6 September 2020, the applicant applied for the posts of Head of the Executive Director Office Unit and Head of the Corporate Support Services Unit.

13 On 13 October 2020, the applicant received an amendment to her contract providing for its renewal for five years and stating that she would be employed in a non-managerial post, pursuant to Article 20(2)(a) of Decision No MB/2018/14 of the Management Board of ENISA on middle management staff of 11 October 2018, under which, ‘where the function occupied by a head of unit ceases to exist as a consequence of a revision of the organisation chart of [ENISA], the Executive Director may, after having examined the possibilities of to [sic] a vacant head of unit function in [ENISA], reassign him to a non-management function’. The applicant signed that amendment on 26 October 2020.

14 By email of 4 November 2020, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union against the implied decision, the vacancy notices of 5 August 2020 and Administrative Notice 2020-11.

15 The applicant’s applications for the posts of Head of the Executive Director Office Unit and Head of the Corporate Support Services Unit were rejected on 10 November 2020 and 3 February 2021 respectively.

16 By decision of 3 March 2021, ENISA rejected the complaint of 4 November 2020.

17 On 7 October 2021, the applicant resigned from ENISA with effect from 15 November 2021.

– annul, in so far as necessary, Administrative Notice 2020-11 and the vacancy notices of 5 August 2020;

– annul, in so far as necessary, the decision of 3 March 2021 rejecting her complaint of 4 November 2020;

20 Under Article 131(1) of the Rules of Procedure of the General Court, if the Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order.

21 In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a ruling without taking further steps in the proceedings.

22 It must be recalled that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. The proof of such an interest, which is evaluated at the date on which the action is brought and which is an essential and fundamental prerequisite for any legal proceedings, must be adduced by the applicant (see judgment of 27 March 2019, Canadian Solar Emea and Others v Council, C‑236/17 P, EU:C:2019:258, paragraph 91 and the case-law cited).

23 That interest must be vested and current. It may not concern a future and hypothetical situation. That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate. The Court hearing the case may raise of its own motion and at any stage of the proceedings the objection that a party has no interest in maintaining his or her application, by reason of the occurrence of a fact subsequent to the date on which the document instituting the proceedings was lodged (see judgment of 27 March 2019, Canadian Solar Emea and Others v Council, C‑236/17 P, EU:C:2019:258, paragraph 92 and the case-law cited).

24 If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the Court on the merits cannot bring him or her any benefit (see judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 43 and the case-law cited).

25 It is clear from the case-law that an official who, through his or her resignation, has shown his or her desire to cease to belong to the institution within which the posts filled by the contested act were vacant has, in principle, lost his or her personal interest in the annulment of that act (see, to that effect, judgment of 29 October 1975, Marenco and Others v Commission, 81/74 to 88/74, EU:C:1975:139, paragraphs 6 and 7).

26 It is true that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by him or her has ceased to have effect in the course of proceedings. The person concerned by that act may retain an interest in claiming its annulment in order to be restored to his or her original position or in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated. Even where, because of the circumstances, it proves impossible to fulfil the obligation, owed by the institution whose act has been annulled, to take the necessary measures to comply with the judgment annulling the act, the application for annulment may retain an interest as the basis for possible proceedings for damages (see judgment of 30 June 2022, Camerin v Commission, C‑63/21 P, not published, EU:C:2022:516, paragraph 48 and the case-law cited).

27 However, it is for the applicant to prove that he or she has an interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings. In particular, in order for an action seeking annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner his or her interest in the annulment of that act (see judgment of 30 June 2022, Camerin v Commission, C‑63/21 P, not published, EU:C:2022:516, paragraph 50 and the case-law cited).

28 In the instant case, first, it must be noted that the applicant resigned from ENISA on 7 October 2021, almost four months after the present action was brought, the application having been lodged on 9 June 2021. Through her resignation, the applicant thus expressed her desire to cease to belong to ENISA.

29 As ENISA points out, only staff members of that agency qualify for internal mobility. Accordingly, since the applicant no longer works for ENISA following her resignation, she is no longer entitled to internal mobility. Consequently, the annulment of the contested acts would have no effect on her professional situation and would not procure any advantage to her from that point of view.

30 Secondly, it should be made clear that the applicant does not make any claim for damages in the present action. Nor has she shown an interest in securing the annulment of the contested acts for any of the reasons stated in paragraph 26 above, with the result that the case-law cited therein does not apply here.

31 Thirdly, in response to the measure of organisation of procedure of the Court, the applicant states that she continues to have an interest in bringing proceedings because of her subsequent action registered as Case T‑511/21. She submits, in that regard, that the decision adopted by ENISA on 13 October 2020 to renew her employment contract, which she challenges in the action registered as Case T‑511/21 in so far as that decision reassigned her to a non-managerial post, is unlawful on account of the illegalities tainting the implied decision, which, according to the applicant, is not in the interests of the service.

32 The finding that the applicant no longer has an interest in bringing proceedings in the present action does not necessarily entail an identical finding in the action registered as Case T‑511/21, since both the contested acts and the form of order sought by the applicant in that action differ from the contested acts and the form of order sought in the present action.

33 Furthermore, it is true that an official or member of the temporary or contract staff may not, in an action brought against an act adversely affecting him or her, indirectly call into question a previous decision which has not been challenged within the time limits prescribed, unless he or she can demonstrate the existence of a new and material fact (see, to that effect, judgments of 21 February 2006, V v Commission, T‑200/03 and T‑313/03, EU:T:2006:57, paragraphs 94 and 95 and the case-law cited, and of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 75 (not published) and the case-law cited).

34 Nonetheless, an official or member of the temporary or contract staff is entitled, in particular in the context of a plea alleging manifest error of assessment, to challenge the inferences which an EU institution, body, office or agency has drawn from a prior act which also adversely affects him or her, even though that act has become final and its grounds can no longer be challenged (see, to that effect, judgment of 23 September 2020, VE v ESMA, T‑77/18 and T‑567/18, not published, EU:T:2020:420, paragraph 41 and the case-law cited).

35 Thus, the finding that the applicant no longer has an interest in bringing proceedings in the present action has no bearing on the possibility open to her, in the action registered as Case T‑511/21, to challenge the implied decision indirectly, in accordance with the rules on admissibility governing such a challenge, or, as the case may be, to challenge the legal inferences which ENISA drew from those acts as regards her personal situation.

36 It follows from the foregoing that the applicant has not demonstrated that the annulment of the contested acts in the present action would be capable of having legal consequences for her personal situation and of procuring an advantage to her. As is apparent from applying by analogy the case-law cited in paragraph 25 above, the applicant has thus lost her personal interest in the annulment of the contested acts in the context of this action. In those circumstances, it must be held that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.

37 Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court.

38 In the circumstances of this case, each party is to be ordered to bear its own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> TB v ENISA (Civil service - Members of the temporary staff - Reorganisation of ENISA - Order) [2023] EUECJ T-322/21_CO (22 December 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T32221_CO.html Cite as: [2023] EUECJ T-322/21_CO, ECLI:EU:T:2023:877, EU:T:2023:877

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