ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

23 October 2013

Case F‑7/12

Aristidis Psarras

v

European Network and Information Security Agency (ENISA)

(Civil service — Temporary staff — Appraisal — 2009 appraisal exercise — Career development report — Application for annulment of the career development report — Act adversely affecting an official — Action manifestly inadmissible)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Psarras seeks annulment of his career development report in respect of 2009 (‘the 2009 CDR’) and annulment of the decision of the European Network and Information Security Agency (ENISA) of 16 November 2010 establishing the list of staff reclassified under the 2010 reclassification exercise.

Held:      The action is dismissed as manifestly inadmissible. The European Network and Information Security Agency is to bear its own costs and is ordered to pay the costs incurred by Mr Psarras.

Summary

1.      Actions brought by officials — Conditions for admissibility — Act adversely affecting an official — Mandatory — To be considered of the Court’s own motion

(Art. 263 TFEU; Staff Regulations, Art. 91)

2.      Actions brought by officials — Act adversely affecting an official –Definition — Decision establishing the list of temporary staff reclassified — Included

(Staff Regulations, Arts 90 and 91)

1.      The existence of an act adversely affecting an official, against which an action for annulment is brought, in accordance with the provisions of Article 263 TFEU or of Article 91 of the Staff Regulations, is an essential condition for the admissibility of the action and the lack of such an act may be raised by the European Union judicature of its own motion. It follows that an action for the annulment of a career development report which had not been definitively drawn up and, consequently, did not exist at the time of bringing the action is manifestly inadmissible.

(see paras 36, 43, 47)

See:

4 June 1986, 78/85 Group of the European Right v Parliament, para. 11; 7 October 1987, 248/86 Brüggemann v ESC, para. 6

10 July 1990, T‑64/89 Automec v Commission, para. 41; 18 November 1992, T‑16/91 Rendo and Others v Commission, para. 39

2.      Under Article 1(2) of the decision of the European Network and Information Security Agency adopting the general provisions for implementing Article 43 of the Staff Regulations and Article 15 of the Conditions of Employment of Other Servants, reclassification is an upgrading from the grade held to the grade immediately higher within the same function group. In accordance with Article 10(10) of that decision, the list of temporary staff reclassified to a higher grade is decided on by the authority authorised to conclude contracts.

It follows that the decision of the authority authorised to conclude contracts determining the list of members of the temporary staff to be reclassified constitutes a final decision in so far as it identifies the members of the temporary staff to be reclassified during the reclassification exercise in question. Therefore, it is on publication of that list that the members of the temporary staff who consider themselves eligible for reclassification learn, in a manner which is final and not open to doubt, of the assessment of their respective merits and are able to tell whether their legal position is affected. Consequently, such a decision constitutes, in principle, an act adversely affecting an official, against which an action may be brought by members of the temporary staff who feel themselves to have been prejudiced by that act in so far as they were not reclassified.

(see paras 51-52)

See:

21 November 1996, T‑144/95 Michaël v Commission, paras 30 and 31; 28 September 2004, T‑216/03 Tenreiro v Commission, paras 47 and 48