JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)

2 October 2012

Case F‑118/10

Aristidis Psarras

v

European Network and Information Security Agency (ENISA)

(Civil service — Assignment — Reassignment — Interests of the service — Leave on personal grounds)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Psarras, a member of the temporary staff of the European Network and Information Security Agency (ENISA) brought the present action seeking, inter alia, annulment of the decision to dismiss the applicant from his duties as accountant and to appoint another person to that post.

Held: The decision of 7 February 2010 of the Board of ENISA to dismiss the applicant from his duties as accountant, with immediate effect, and to appoint Mr X, budget officer, to the post as accountant for an unlimited term, and the decision of 1 March 2010 adopted as a consequence by the Executive Director, reassigning the applicant to new duties, are annulled. The remainder of the action is dismissed. ENISA is to bear its own costs and pay the costs incurred by the applicant.

Summary

1.      Officials — Actions — Act adversely affecting an official — Definition — Proposal not binding on the body competent to take the final decision — Not included — Preparatory act

(Staff Regulations, Art. 90(2))

2.      Judicial proceedings — Production of evidence — Time-limit — Late submission of evidence — Conditions

(Rules of Procedure of the Civil Service Tribunal, Art. 42)

3.      Officials — Members of the temporary staff — Unpaid leave — Expiry — Reinstatement — Duty of the administration — Scope

(Conditions of Employment, Art. 17)

1.      Acts preparatory to a final decision do not adversely affect the applicant within the meaning of Article 90(2) of the Staff Regulations and can therefore only be contested incidentally in an appeal against measures capable of being annulled.

A proposal, made to the Board by the Executive Director of an agency of the European Union, to assign certain tasks to an official on a permanent basis and to dismiss another official from his duties is such an act. Such a proposal cannot be regarded as being in the nature of a decision since it is not binding on the board, the body competent to take the final decision.

(see paras 34-35)

See:

14 February 1989, 346/87 Bossi v Commission, para. 23

22 June 1990, T‑32/89 and T‑39/89 Marcopoulos v Court of Justice, para. 21; 22 January 1998, T‑98/96 Costacurta v Commission, para. 21

2.      Under Article 42 of the Rules of Procedure of the Civil Service Tribunal, parties can offer further evidence in support of their arguments in reply or rejoinder but they must give reasons for the delay in offering it. That obligation implies that the European Union Court has the power to review the merits of the reasons given for the delay in lodging that evidence and to disregard the evidence if the application is not sufficiently founded.

(see para. 40)

See:

18 September 2008, T‑47/05 Angé Serrano and Others v Parliament, paras 54 and 56

3.      An institution is entitled, applying its broad discretion in the organisation of its departments, to consider that the interests of the service may justify not reinstating a temporary staff member at the end of his unpaid leave in the post occupied before his departure.

However, if the institution undertakes to reinstate that staff member in his post, it is obliged to comply with that undertaking.

(see paras 45, 50)