JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
6 February 2019 (*)
(Civil service — Members of the temporary staff — Recruitment — Notice of vacancy — Head of Unit post — Inclusion on the reserve list — Acceptance of the offer of employment — Withdrawal of the offer of employment — Conditions of employment — Character references — Article 12 of the CEOS — Manifest error of assessment — Processing of personal data — Right to be heard — Liability)
In Case T‑461/17,
TN, represented by L. Levi and A. Blot, lawyers,
applicant,
v
European Union Agency for Network and Information Security (ENISA), represented by A. Ryan, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
APPLICATION pursuant to Article 270 TFEU and seeking, first, the annulment of the decision of 25 November 2016 by which ENISA withdrew the offer of employment made to the applicant for the position of Head of the Administrative Services Unit, as well as the annulment of the decision of 20 April 2017 rejecting his complaint and, secondly, an order that ENISA pay compensation for the material and non-material loss allegedly suffered by the applicant as a result, inter alia, of the unlawful withdrawal of that offer.
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
I. Background to the dispute
1 The applicant, TN, served as a member of the temporary staff, as provided for in Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), first, between 1 September 2005 and 15 October 2010, with the European Union Agency for Network and Information Security (ENISA) in Heraklion (Greece), and then between 16 October 2010 and 15 October 2016, with the European Institute of Innovation and Technology (EIT), based in Budapest (Hungary), where he was classified in the administrators function group (AD) and had reached the grade AD 9, step 3.
2 Before the expiry of his contract with the EIT on 15 October 2016, the applicant applied for the post of Head of the Administrative Services Unit (‘the published Head of Unit post’), for which ENISA had, on 29 April 2016, published a vacancy notice (‘the vacancy notice’).
3 The vacancy notice provided, inter alia, that the successful candidate would be offered a contract as a member of the temporary staff under the CEOS and that the appointment would be in grade AD 7 or AD 8 (‘the proposed grade’). In addition, it was stated that the final classification in grade and step would be determined on the basis of the professional experience already acquired by the successful candidate.
4 By letter of 5 July 2016, the applicant was informed that he had been placed on the reserve list of suitable applicants to occupy the published Head of Unit post.
5 On 4 August 2016, ENISA invited the applicant to a meeting (‘the meeting of 4 August 2016’), at the premises of ENISA in Heraklion, with the Executive Director of ENISA (‘the Executive Director’) and the Head of Stakeholder Relations and Administration Department (‘the Administrative Director’). It is common ground between the parties that, at that meeting, the applicant received an offer of employment (‘the offer of employment’) for the post of Head of the Administrative Services Unit of ENISA (‘the post of Head of Unit’), which replaced the published Head of Unit post following an internal reorganisation.
6 By email of 11 August 2016, the Administrative Director confirmed the offer of employment to the applicant and asked him to state a potential date on which he could join ENISA (‘the email of 11 August 2016’). In addition, the Administrative Director informed the applicant that administrative formalities would be initiated quickly, as discussed at the meeting of 4 August 2016.
7 On 17 August 2016, the applicant sent to the Administrative Director an email with the subject heading ‘Head of [Corporate Services Unit] — Some considerations’ with several attachments (‘the applicant’s email concerning the grade’). In that email, the applicant expressed ‘some considerations concerning [his] possible grade’ in order to ‘help to maintain [his] seniority’, setting out, in essence, the option open to ENISA to reclassify, in the future, the post of Head of Unit at grade AD 9. However, the applicant noted in particular that he ‘would serve the level and function as mentioned in the [vacancy notice]’ and that he ‘look[ed] very much forward to working with [ENISA]’.
8 By email of 18 August 2016, the Administrative Director replied to the applicant’s email concerning the grade, stating that he would contact the Human Resources Department to ascertain what were the possibilities regarding his grading. In addition, the Administrative Director informed the applicant that he would hear from him after 29 August 2016.
9 On 16 September 2016, the applicant sent an email to the Administrative Director, asking him whether he had to wait for an official letter from ENISA regarding his starting date in Athens on 16 October 2016 or whether the email of 11 August 2016 was sufficient. The applicant also asked whether he would sign the contract of employment after his arrival.
10 On 20 September 2016, a telephone conversation took place between the Administrative Director and the applicant at the latter’s initiative. It is common ground that the applicant stated on that occasion that he had carried out all the preparations and that he would go to Athens the following week.
11 By means of an anonymous telephone call to the Administrative Director received on the same date, ENISA became aware of the possibility that the applicant was the subject of one or more investigations by the European Anti-Fraud Office (OLAF).
12 By email of 28 September 2016, the Director of the Human Resources Department (‘the Director of Human Resources’) brought to the applicant’s attention the information that ENISA had received and requested from him, in particular, ‘details of the investigation(s), any outcome of the investigation(s) by OLAF and by the Agency involved and if [he] could indicate the Agency where these events may have occurred’.
13 During telephone conversations initiated by the applicant on 28 and 30 September 2016, respectively, he informed the Director of Human Resources and the Administrative Director of the fact that first, OLAF had carried out an investigation concerning him which had resulted in a reprimand for a mistake committed in 2010 and, secondly, that he had not been the subject of any other OLAF investigation. On those occasions, the applicant suggested that ENISA should enter into direct contact with the EIT if there was any pending doubt about his integrity.
14 On 30 September 2016, the applicant travelled by car from Budapest to Athens in order to commence his duties in the post of Head of Unit on 16 October 2016.
15 On 3 October 2016, the Director of Human Resources reiterated the request to ‘supply the relevant documentation as soon as possible in order that ENISA make an informed decision’, indicating to the applicant that, in the meantime, ‘the recruitment process [was] on hold’. By email of 5 October 2016, the applicant replied to that request, stating that the documents requested by ENISA were not at his disposal and that only the appointing authority of the EIT (‘the appointing authority’) was in a position to provide the documents in question. On 11 October 2016, the applicant sent a joint email to the appointing authorities of ENISA and the EIT, respectively, namely the Executive Director and the Director of the EIT, linking the email addresses of the two appointing authorities and asking the Director of the EIT to communicate ‘the standardised document/information’ to ENISA.
16 By email of 14 October 2016, the Administrative Director informed the applicant that, before any further progress could be made with regard to his recruitment, ENISA needed to have comprehensive information in relation to any documentation or processes that involved OLAF. ENISA also asked the applicant to ‘confirm in writing the details and documentation in relation to the “reprimand” [he had] advised by phone’ and to forward ‘all details of any internal disciplinary proceedings or investigations [in respect of which he had been a party or subject] … as soon as possible’.
17 By email of 15 October 2016, the applicant forwarded to the Administrative Director and the Director of Human Resources the decision relating to the disciplinary measure adopted by the appointing authority of the EIT and confirmed that he had never been the subject of any other disciplinary action or investigation.
18 By email of 16 October 2016, the Administrative Director informed the applicant that his email of 15 October 2016 would be examined and that the recruitment procedure was suspended in the meantime until the appointing authority of ENISA informed him officially of its decision.
19 After an exchange of several emails concerning taking up his duties as Head of Unit, the applicant received, on 4 November 2016, a request from the Administrative Director, seeking, in particular ‘full disclosure of all events that involve or involved OLAF and any subsequent decisions and the EIT handling of the process [immediately]’ (‘the request of 4 November 2016’). On that occasion the applicant was informed that, ‘in the absence of [such] disclosure, the Executive Director [was] strongly considering not considering [his] candidature any further’.
20 By email of 8 November 2016, the applicant replied to the request of 4 November 2016. As regards the basis of the reprimand, the applicant explained that, at the time of the facts which were alleged against him in 2010, he had overlooked that a false document had been submitted to the EIT, although he should have detected and prevented that submission. He also stressed that the loss caused by the submission of that document had subsequently been fully recovered and that he had never personally handed in or provided any false document.
21 On 11 November 2016, a conference call was organised between the applicant, the Executive Director, the Director of Human Resources and the Administrative Director. During that conference call, the applicant referred to his last email of 8 November 2016 (see paragraph 20 above), which summarised his position, and indicated that it was his right to refuse to disclose the OLAF report.
22 By email of 25 November 2016, the Executive Director, acting as the appointing authority, informed the applicant that ENISA had decided to withdraw the offer of employment on the ground that, in the light of the disciplinary measure adopted against him by the appointing authority of the EIT, it considered that the applicant did fulfil the conditions laid down in Article 12(2)(c) of the CEOS and had decided not to proceed with his recruitment (‘the withdrawal decision’).
23 On 20 December 2016, the applicant made a complaint against the withdrawal decision pursuant to Article 46 of the CEOS and Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
24 By decision of 20 April 2017, the Executive Director, acting as appointing authority, rejected the complaint against the withdrawal decision (‘the decision rejecting the complaint’).
II. Procedure and forms of order sought
25 By application lodged at the Court Registry on 25 July 2017, the applicant brought the present action. The applicant also submitted an application for anonymity, which was granted by decision of the General Court (Sixth Chamber) of 8 November 2017.
26 On 8 November 2017, the applicant, under Article 85 of the Rules of Procedure of the General Court, submitted further evidence. On 13 December 2017, ENISA lodged its observations on that further evidence.
27 The General Court (Sixth Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure of the Court, to rule without an oral part of the procedure.
28 The applicant claims that the Court should:
– annul the withdrawal decision and the decision rejecting the complaint;
– order ENISA to compensate the material and non-material damage suffered by the applicant;
– order ENISA to pay the costs.
29 ENISA contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
III. Law
A. The claim for annulment
1. The scope of the claim for annulment
30 The applicant seeks the annulment of the withdrawal decision and of the decision rejecting the complaint.
31 In that regard, it should be noted that, in accordance with the principle of economy of procedure, the European Union judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made. That may, in particular, be the case where it finds that the decision rejecting the complaint is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second (judgments of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33, and of 16 July 2015, Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraph 49).
32 In the present case, even though the decision rejecting the complaint is confirmatory of the withdrawal decision and it is therefore not appropriate to rule specifically on the claims for annulment of the decision rejecting the complaint, the statement of reasons given in the latter decision clarifies some of the grounds for the withdrawal decision. Consequently, in view of the evolving nature of the pre-litigation procedure, the statement of reasons must also be taken into account in the review of the legality of the withdrawal decision, since that statement of reasons is deemed to supplement that act (see judgment of 16 July 2015, Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraph 50 and the case-law cited).
33 In those circumstances, and given that the applicant makes no distinction in his arguments regarding each of the decisions which he seeks to have annulled, the action must be regarded as being directed against the withdrawal decision (‘the contested decision’), the legality of which will be examined taking into account the reasons contained in the decision rejecting the complaint.
2. The claim for annulment
34 In support of its claim for annulment, the applicant raises three pleas in law alleging (i) breach of the contractual obligations of ENISA towards him and the obligation to state reasons, (ii) undue processing of his personal data, infringement of Article 12 of the CEOS, a manifest error of assessment, infringement of the duty of care and of the right to good administration, and, (iii) infringement of the right to be heard and the right to good administration.
(a) The first plea in law, alleging infringement of the contractual obligations of ENISA in relation to the applicant and infringement of the obligation to state reasons
35 The first plea in law is composed of two parts.
36 In support of the first part, alleging infringement by ENISA of its contractual obligations, the applicant claims that ENISA did not comply, when adopting the contested decision, with the provisions of Article 47 of the CEOS and in particular the notice period. Thus, according to the applicant, from the moment he accepted the offer of employment, the contract for the post of Head of Unit must be considered as concluded and, therefore, a decision to terminate that contract was subject to compliance with the guarantees provided by Article 47 of the CEOS.
37 In support of the second part of the plea, alleging infringement of the obligation to state reasons, the applicant claims that the reasoning, contained in the contested decision and in the decision rejecting the complaint, by which ENISA found that there had been no mutual agreement between the parties, is incorrect.
38 ENISA disputes the applicant’s arguments.
39 As regards the breach of the obligation to state reasons raised in the second part of the present plea, it must be recalled that, according to settled case-law, the obligation to state reasons laid down by Article 25, second paragraph, of the Staff Regulations, which merely repeats the general obligation enshrined in Article 296 TFEU, is intended, on the one hand, to provide the person concerned with sufficient details to determine whether the act adversely affecting him was well founded and whether it is appropriate to bring proceedings before the Courts of the European Union and, on the other, to enable that Court to review the legality of the act (see judgment of 3 May 2018, SB v EUIPO, T‑200/17, not published, EU:T:2018:244, paragraph 41 and the case-law cited).
40 Furthermore, the obligation to state reasons set out in Article 296 TFEU is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 143 and the case-law cited).
41 In the present case, it should be noted at the outset that, although the applicant mentions, in the title of the first plea, breach of the obligation to state reasons, it is apparent from his arguments that he is in fact alleging that the reasoning contained in the contested decision and in the decision rejecting the complaint is incorrect. In those circumstances, it suffices to note that, under cover of an alleged infringement of the obligation to state reasons, the applicant calls into question the merits of the reasoning of those decisions.
42 However, in so far as the applicant’s arguments made in the context of the second part of the first plea overlap with those relied on in support of the first part of that plea, seeking to call into question the merits of the decisions mentioned in paragraph 41 above, it is appropriate to examine them together.
43 In order to establish whether ENISA adopted the contested decision and the decision rejecting the complaint in breach of its contractual obligations and of the applicant’s rights under Article 47 of the CEOS, it is necessary to ascertain, first of all, whether a contract of employment, granting the applicant the opportunity to rely on those provisions and in particular those relating to the period of notice, had been concluded previously between the parties.
44 In that regard, it should be observed that it follows from Articles 1 and 2 and from Title II of the CEOS, entitled ‘Temporary Staff’, that relations between members of the temporary staff and their employers are, in principle, governed by individual contracts of employment, the content of which is subject, in general, to compliance with the conditions laid down in the CEOS. Those contracts determine, in particular, the classification of the member of the temporary staff and the corresponding basic salary, the start date and the duration of that contract, the period of notice and other conditions of employment.
45 Moreover, it should be recalled that the case-law has consistently recognised that the basis of the employment relationship between a member of the temporary staff and the institution or agency concerned is a contract of employment as a member of the temporary staff (judgments of 18 October 1977, Schertzer v Parliament, 25/68, EU:C:1977:158, paragraph 23, and of 19 June 1992, V v Parliament, C‑18/91 P, EU:C:1992:269, paragraph 39).
46 Therefore, the consensus between the contracting parties, as expressed, inter alia, by the signing of the employment contract, gives rise to obligations of a contractual nature which restrict the appointing authority’s power to act unilaterally outside the cases expressly provided for by the CEOS (judgment of 16 July 2015, Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraph 103).
47 As regards whether, in the absence of a document validated by the signature of each contracting party, the contract of employment of a member of the temporary staff may be regarded as having been concluded, it must be ascertained whether it is apparent from the verifiable or undisputed exchanges between the parties that there is a perfect concordance of intentions on all the essential elements of that contract.
48 In that regard, it should be recalled that, while an offer of employment addressed to a candidate with a view to his appointment as a member of the temporary staff is merely a statement of intent and, as such, a preparatory measure which does not create rights and may be withdrawn, for example where the appointing authority discovers, after making the offer of employment, that the person concerned does not satisfy one of the conditions of engagement laid down in the CEOS, the vacancy notice or internal rules (see, by analogy, order of 23 October 2017, Karp v Parliament, T‑833/16, not published, EU:T:2017:766, paragraph 31; judgment of 23 October 2012, Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 66, and order of 10 July 2014, Mészáros v Commission, F‑22/13, EU:F:2014:189, paragraph 73), the situation is different where such an offer has been accepted by the latter. In such a situation, the mutual agreement between the contracting parties gives rise to new contractual obligations which limit the appointing authority’s power to act unilaterally outside the situations expressly provided for by the CEOS, such as those referred to in Article 14 of the CEOS, concerning the probationary period, and Article 47 of the CEOS, concerning termination of employment (see, to that effect, judgment of 16 July 2015, Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraph 103 and the case-law cited).
49 With regard, as in the present case, to the conclusion of a contract of employment as a member of the temporary staff, it should be noted that it comes at the end of a complex procedure, taking place in several stages, the purpose of which is, according to the terms of Article 12(1) of the CEOS, to secure the services of persons ‘of the highest standard of ability, efficiency and integrity’.
50 In that regard, it should be recalled that, according to the case-law, an offer of employment has no legal effect until it has been accepted and it is the act which, as the case may be, follows that acceptance which might adversely affect the person concerned (see order of 23 October 2017, Karp v Parliament, T‑833/16, not published, EU:T:2017:766, paragraph 32 and the case-law cited).
51 Accordingly, although the CEOS does not provide specific formal conditions for the validity of a contract of employment of a member of the temporary staff, only a document from the institution which follows an unconditional acceptance on the part of the person concerned and which contains all the essential particulars necessary for entering the service, in particular the classification of the member of the temporary staff in grade and step and corresponding basic salary, the starting date and duration of that contract and the required period of notice, would constitute an act creating rights that enable the person concerned to claim access to the post applied for and require compliance with the guarantees of the CEOS and in particular those set out in Articles 14 and 47 thereof.
52 Moreover, it is important to point out that, in the context of a decision to fill a vacant post, under Article 2 of the CEOS, the appointing authority is to verify compliance with the conditions of employment laid down in Article 12 of the CEOS, in particular the condition concerning the appropriate character references in respect of the duties to be performed, and must have the candidate undergo a medical examination pursuant to Article 13 of the CEOS.
53 In the present case, first, it is common ground that no engagement letter was formally sent to the applicant and no contract was signed by the parties.
54 Secondly, although it is common ground that, at the meeting of 4 August 2016, the applicant received the offer of employment, which was subsequently confirmed in writing by email on 11 August 2016 (see paragraph 6 above), it must be pointed out that that email does not contain the essential elements of the employment contract, such as the applicant’s classification in grade and step, the corresponding basic salary, the date of entry into service, the duration of the contract and the period of notice. It is true that, in that email, ENISA referred to the applicant’s application, which was closely linked to the vacancy notice (see paragraph 2 above) and to the characteristics of the published Head of Unit post referred to therein. However, the vacancy notice was not sufficiently precise as regards the proposed grade and contained no reference to the period of notice. Furthermore, in that email, ENISA also asked the applicant to provide it with a potential date on which he could join ENISA, while informing him that the administrative formalities would be initiated quickly.
55 Thirdly, without it being necessary to examine the admissibility of the new evidence submitted by the applicant after the first exchange of pleadings (see paragraph 26 above), relating to the acceptance of the offer of employment on the day after it was received, namely by email on 12 August 2016, it should be noted that, in any event, such acceptance could only launch the engagement procedure and could not in any way conclude it.
56 Although it is apparent from the email of 11 August 2016 that the Administrative Director informed the applicant of the immediate launching, after acceptance of the offer of employment, of the administrative formalities necessary for his engagement, it did not provide him with any assurance as to the positive outcome of the engagement procedure.
57 That conclusion is moreover supported by the reply of the Administrative Director to the applicant’s email concerning the grade, informing the applicant of the steps he would take with the Human Resources Department to ascertain if it would be possible to classify him in a grade higher than the proposed grade (see paragraph 8 above).
58 Consequently, the applicant’s acceptance of the offer of employment, even assuming that it was unconditional in respect of the proposed grade, which ENISA contests, could not have had the effect of transforming a declaration of intent into an act creating specific rights to a contract of employment (see, to that effect and by analogy, judgment of 23 October 2012, Eklund v Commission, F‑57/11, EU:F:2012:145, paragraphs 66 and 67).
59 It follows that, in the absence of a document from ENISA which follows the acceptance by the applicant of the offer of employment, which contains all the essential elements necessary for the applicant to enter the service, in particular his classification in grade and step and corresponding basic salary, the starting date and duration of that contract as well as the period of notice, the applicant’s claim concerning the conclusion of the contract of employment as a member of the temporary staff from 16 September 2016 at the latest, that is, the date when he sent the email requesting information regarding the signature of that contract (see paragraph 9 above), must be rejected.
60 That conclusion is not called into question by the fact, submitted by the applicant, that the agreement does not need to be formalised by the signatures of the contracting parties in order for a contract of employment to be considered as validly concluded. It is the absence of agreement by the parties on the essential elements of the contract of employment of a member of the temporary staff which is lacking in the present case.
61 In those circumstances, in the absence of a contract of employment validly concluded between the parties, the applicant cannot claim that ENISA infringed his contractual rights or that it infringed the provisions of Article 47 of the CEOS and, more specifically, the provisions concerning the period of notice. The two parts of the first plea and, consequently, the first plea in its entirety must therefore be rejected.
(b) The second plea, alleging the unlawful processing of the personal data of the applicant, infringement of Article 12 of the CEOS, manifest error of assessment, infringement of the duty of care and of the right to good administration
62 This plea consists of four parts, alleging (i) unlawful processing of the personal data of the applicant by ENISA, (ii) infringement of Article 12 of the CEOS, (iii) a manifest error of assessment, and, (iv) breach of the duty of care and of the right to good administration.
63 On the one hand, as regards the fourth part, it should be noted that the alleged infringements are formulated in general terms and are not substantiated by specific arguments. On the other hand, as regards the argument put forward by the applicant in the context of the first part, that the processing of his personal data was not fair and was not compatible with the purposes for which the data were collected, as required under Article 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 4 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1), it must be observed that that assertion is not supported by any evidence, and that the applicant is relying on a mere statement.
64 In that regard, it must be borne in mind that, pursuant to the combined provisions of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, in conjunction with Article 76(d) of the Rules of Procedure, an application must, inter alia, contain the arguments relied on in support of the pleas in law raised.
65 In order to guarantee legal certainty and sound administration of justice it is necessary, in order for a plea or claim to be admissible, that the basic legal and factual particulars relied on by an applicant be indicated coherently and intelligibly in the text of the application itself so as to enable the defendant to prepare his defence and the Court to give judgment in the action without having to seek further information, if appropriate (see order of 15 November 2017, Pilla v Commission and EACEA, T‑784/16, not published, EU:T:2017:806, paragraph 34 and the case-law cited, and judgment of 11 September 2013, de Brito Sequeira Carvalho v Commission, F‑126/11, EU:F:2013:126, paragraph 64 and the case-law cited).
66 It follows that, in the light of the case-law referred to in paragraph 65 above, in the absence of arguments which could allow ENISA to prepare its defence and the Court to rule, without any further information, on the infringements described in paragraph 63 above, the second plea, in so far as it is based on such infringements, must be rejected as inadmissible.
67 It is therefore necessary to consider, in the context of the present plea, only the first part, in that it seeks to establish that the contested decision is based on unlawful processing of personal data by ENISA, and the second and third parts jointly, alleging a manifest error of assessment as regards the application of Article 12 of the CEOS.
(1) The first part, alleging unlawful processing of the applicant’s personal data by ENISA
68 In the context of the first part of the second plea, the applicant puts forward three complaints, alleging, (i) unlawful collection, in breach of the conditions set out in the first subparagraph of Article 22a(1) of the Staff Regulations, of information of a confidential nature relating to the OLAF investigation and the disciplinary penalty which had been imposed on him by the appointing authority of the EIT, (ii) unlawful processing of that information by ENISA and, more specifically, the collection and use of that information as the basis for the contested decision, and, (iii) unlawfully taking into account the applicant’s refusal to disclose confidential personal information concerning the OLAF investigation.
69 EUIPO disputes the applicant’s arguments.
70 As a preliminary point, it should be noted that, with regard to complaints concerning alleged unlawful collection of the applicant’s personal data and the alleged ground relating to his refusal to disclose confidential personal information concerning the OLAF investigation, the applicant misunderstands the factual basis of the contested decision.
71 Thus, on the one hand, contrary to what the applicant claims, it is apparent from the documents in the file (see paragraphs 11 to 20 above) that the contested decision is not based on the information obtained by means of the anonymous call that ENISA received on 20 September 2016 (see paragraph 11 above), but on the information and on the document provided by the applicant himself, in response to successive requests for information made by ENISA.
72 Indeed, as the applicant himself points out in the application, the contested decision refers to the following elements: ‘Following the information you provided us with, it is undisputed that Mr ..., EIT Interim Director, had adopted a disciplinary sanction against you ... In light of the foregoing, ENISA considers that you do not fulfil the conditions of Article [12(2)(c)] of the CEOS and has decided not to proceed to your recruitment. After having thoroughly analysed all the information provided, I must inform you that, regrettably, ENISA withdraws [the] offer of employment sent to you on 11 August 2016’.
73 On the other hand, it is not apparent from the documents in the file that the contested decision was based, as the applicant claims, on his refusal to disclose confidential information concerning the OLAF investigation or the report itself on the basis of which the disciplinary measure had been adopted.
74 Indeed, it is apparent from the contested decision that the only ground which had justified the withdrawal of the offer of employment was the disciplinary penalty imposed on the applicant by the appointing authority of the EIT and the facts which had led to that penalty. Nowhere in the contested decision is there mention of any refusal by the applicant to disclose confidential personal information concerning the OLAF investigation, as he claims.
75 In that regard, while it is true that, in the part of the decision rejecting the complaint related to the facts, ENISA referred to the fact that the Administrative Director, in an email of 4 November 2016, had observed that ‘despite repeated requests very little information [had] been provided [to ENISA] by [the applicant]’, that reference does not mean that ENISA had argued that the applicant’s attitude constituted a ground for withdrawal of the offer of employment, with the intention of changing or adding to the single ground put forward in the contested decision. Consequently, the applicant cannot reasonably argue that his attitude had constituted a ground for withdrawal of the offer of employment.
76 It follows that the complaints set out in paragraph 70 above must be rejected as ineffective.
77 As regards the complaint alleging unlawful processing by ENISA of information of a confidential nature relating to the existence of the OLAF investigation concerning him and its impact on his career, and more specifically the collection and use of that information as the basis for the contested decision, the applicant, who was the source and the holder of such information, omits to mention in particular the fact that, regardless of whether or not that information was confidential, he did not deny permission for ENISA to process it.
78 Article 5 of Regulation No 45/2001 provides for five situations, which are not cumulative, in which it is permissible to process personal data, which include, under subparagraph (d), the situation where, as in the present case, the data subject has unambiguously given his or her consent.
79 Furthermore, as rightly pointed out by ENISA, such processing would be also covered by the situation referred to in Article 5(a) of Regulation No 45/2001, which concerns the case where it is necessary for the performance of a task in the legitimate exercise of official authority vested in the European Union institution or body to which the data are disclosed. As it was carried out in the general context of the engagement procedure which took place between ENISA and the applicant for the post of Head of Unit, the processing in question necessarily falls within the legitimate exercise of the appointing authority mission that was entrusted to ENISA.
80 In the light of the foregoing, the complaint alleging unlawful processing by ENISA of information of a confidential nature relating to the existence of the OLAF investigation and its consequences, and, accordingly, the first part of the second plea in its entirety, must be rejected as unfounded.
(2) The second and third parts, alleging manifest error of assessment as regards the application of Article 12 of the CEOS
81 The applicant claims that the fact that there was a finding that he had infringed Article 12 of the CEOS and that he had not been transparent constitutes, in reality, an infringement of that provision and reflects a manifest error of assessment.
82 In that regard, it should be recalled that, according to the case-law, an error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, it is necessary to demonstrate that the findings made in the decision at issue are implausible. In other words, there cannot be manifest error if the contested assessment may be accepted as true or valid (judgment of 15 September 2017, Commission v FE, T‑734/15 P, EU:T:2017:612, paragraph 57; see, also, judgment of 3 December 2014, DG v ENISA, F‑109/13, EU:F:2014:259, paragraph 44 and the case-law cited).
83 According to well-established case-law, the appointing authority has a very wide discretion both in the choice of the manner of organising the selection procedure for the purposes of filling a temporary staff post and how that procedure is conducted (see judgment of 4 May 2005, Sena v EASA, T‑30/04, EU:T:2005:161, paragraph 46 and the case-law cited).
84 However, the wide discretion which the appointing authority enjoys when called upon to ascertain whether an applicant for employment as a member of the temporary staff fulfils the conditions of engagement should be exercised in compliance with all the applicable provisions (see, to that effect and by analogy, judgment of 25 September 2013, Marques v Commission, F‑158/12, EU:F:2013:135, paragraph 19 and the case-law cited).
85 Thus, while it is true that the appointing authority has a wide discretion in determining whether certain elements of a candidate’s previous professional experience can be taken into account with a view to his appointment as a member of the temporary staff, the fact remains that the exercise of that broad discretion presupposes that it must examine candidates’ files carefully and impartially and that it must have meticulous regard to all relevant regulations, so that it is required to reject any candidate who does not meet those requirements. The appointing authority is required to comply not only with the vacancy notice, which constitutes a legal framework which the appointing authority imposes on itself and to which it must adhere strictly, but also the conditions of engagement laid down in the CEOS.
86 Since those principles must be held to be applicable also to the review carried out by the European Union judicature in respect of decisions of the appointing authority when it examines, prior to engaging a person as a member of the temporary staff, whether that person fulfils the conditions required for that purpose, it is for the Court to ascertain whether, in the present case, the appointing authority of ENISA committed a manifest error of assessment when it found that that person did not offer ‘the guarantees of good character required for the duties relating to the post’.
87 Furthermore, in accordance with the Article 12(1) of the CEOS, the recruitment of members of the temporary staff is to be directed to securing for the institution the services of persons ‘of the highest standard of ability, efficiency and integrity’.
88 Furthermore, under Article 12(2)(c) of the CEOS, a member of the temporary staff may be engaged only on condition that ‘he produces the appropriate character references as to his suitability for the performance of his duties’.
89 It follows that, in deciding whether or not to conclude a contract of employment as a member of the temporary staff, the appointing authority must take into account above all the interest in filling the vacant post with the most suitable candidate, which must be assessed having regard not only at the level of the service of assignment, whose interest cannot be ignored, but also having regard at the level of management or, as in the present case, of the department to which the person concerned is assigned or even having regard at the level of the EU institution or body as a whole. Moreover, the need for the appointing authority to make an overall assessment of the interest of the service in all its dimensions is all the more necessary where the demeanour of a staff member with financial responsibilities is at issue, as in the present case.
90 Furthermore, in the context of the broad discretionary power which the administration is recognised as having, as in the present case, establishing that the latter made a manifest error in assessing the facts, such as to justify the annulment of the decision adopted on the basis of that assessment, presupposes that the evidence, which the applicant must produce, is sufficient to make the factual assessments used by the administration implausible (judgment of 21 November 2013, Arguelles Arias v Council, F‑122/12, EU:F:2013:185, paragraph 104).
91 It is in the light of those considerations that the second part of the second plea, alleging a manifest error of assessment as regards the application of Article 12 of the CEOS, must be examined.
92 First, it must be stated in that regard that the applicant does not dispute ENISA’s statement that the post of Head of Unit was a high-level post including the delegation of financial powers. It is apparent from the vacancy notice that the published Head of Unit post was designed to strengthen the capacity of the Stakeholder Relations and Administration Department, which included the Administrative Services Unit, to coordinate and support certain areas which came under the Head of that department. It is apparent from the documents in the file that, following changes in the internal organisation of ENISA, the post of Head of Unit involved the same responsibilities and tasks as the published Head of Unit post, which, moreover, is not contested by the applicant.
93 Furthermore, in his email of 14 October 2016 (see paragraph 16 above), in which he requested information from the applicant concerning the disciplinary measure imposed on him, the Administrative Director indicated that, ‘due to the seniority and sensitivity of the position there [was] an onus on ENISA to ensure that there [was] no issue that could bring the position [into disrepute]’.
94 Secondly, as has been stated in paragraph 74 above, ENISA based the contested decision on the facts which gave rise to the disciplinary measure which was imposed on the applicant by the appointing authority of the EIT, in accordance with Article 86 of the Staff Regulations, following the OLAF investigation, namely for having acted in breach of Articles 11, 12 and 22 of the Staff Regulations.
95 However, the decision on the disciplinary measure adopted by the appointing authority of the EIT is final and, moreover, the facts on which it was based have not been contested by the applicant.
96 In that regard, the applicant acknowledges that the disciplinary measure had been imposed on him because he had not noticed that a false document had been presented to the EIT, whereas he ought to have detected that document and prevented that incident (see paragraph 20 above).
97 It follows that the evidence established and not disputed by the applicant, relating to the sensitive nature of the post of Head of Unit and the infringements for which he had been sanctioned by the appointing authority of the EIT, was a sufficient basis for the contested decision.
98 Moreover, ENISA stated in the decision rejecting the complaint that ‘a Head of Unit [had] to observe the highest standards of ethical conduct and the complainant failed to comply with this requirement in light of the disciplinary penalty he has been subject to’.
99 In those circumstances, taking into account ENISA’s broad discretion and the conditions of engagement laid down in the CEOS, it should be noted that, in accordance with the case-law cited in paragraph 82 above, ENISA was right in effectively deciding that the applicant did not offer the guarantees of good character required for the duties relating to the post of Head of Unit.
100 That conclusion is not called into question by the applicant’s arguments relating to the amount of time that has elapsed since the events giving rise to the disciplinary penalty and the lightness of that penalty, his full transparency towards ENISA or the alleged punitive nature of the contested decision.
101 To the extent that ENISA is responsible, in particular, for ensuring a high level of network and information security within the European Union, it could, in the interest of the service, in a recruitment procedure for a head of unit with financial responsibilities, give more importance to the risk posed by conduct such as that for which the disciplinary penalty was imposed on the applicant than to the amount of time that has elapsed since that penalty was imposed and its lightness.
102 As regards the allegedly punitive nature of the contested decision, thereby giving rise to breach of the principle ne bis in idem, it should be noted that the withdrawal of the offer of employment is neither a criminal penalty nor any other form of penalty, which are conditions required to invoke that principle in the present case, without it being necessary to examine the nature of the disciplinary reprimand measure imposed on the applicant by the appointing authority of the EIT, in the light of Article 50 of the Charter, invoked by the applicant.
103 In that regard, it should be noted that, first, the principle ne bis in idem enshrined in Article 50 of the Charter, states that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law’. Accordingly, the principle ne bis in idem prohibits a duplication both of proceedings and of penalties which are criminal in nature for the purposes of that article in respect of the same acts and against the same person (see, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 34). The withdrawal of the offer of employment cannot in any way be regarded as a penalty of a criminal nature.
104 Furthermore, Article 9(1) of Annex IX to the Staff Regulations, entitled ‘Disciplinary proceedings’, which is applicable by analogy to members of the temporary staff pursuant to Article 50a of the CEOS, lists the disciplinary measures that the appointing authority may apply. Paragraph 3 of that article provides that ‘a single case of misconduct shall not give rise to more than one disciplinary penalty’. However, the contested decision does not constitute a penalty within the meaning of Article 9 of Annex IX to the Staff Regulations, but is the result of the assessment of the condition of engagement relating to the good character of the applicant, in accordance with Article 12(2)(c) of the CEOS.
105 In the light of the foregoing, it must be held that ENISA did not commit a manifest error of assessment in the application of Article 12 of the CEOS and, accordingly, the second and third parts of the second plea must be rejected.
106 Accordingly, the second plea must be rejected in its entirety, as in part inadmissible and ineffective and in part unfounded.
(c) The third plea, alleging infringement of the right to be heard and of the right to good administration
107 The applicant claims that he was never provided with the possibility of presenting his observations on the intention of ENISA to reconsider his engagement. He considers, moreover, that if his right to be heard had been respected, the outcome of the procedure would have been different, as he could have presented his arguments and this could have influenced the contested decision.
108 EUIPO disputes the applicant’s arguments.
109 As a preliminary point, while it is true that, in the context of the third plea, the applicant complains that ENISA, by adopting the contested decision, infringed both the right to be heard and the right to good administration, the fact remains that all of the applicant’s arguments relate only to the infringement of the right to be heard, which constitutes an element of the right to good administration, enshrined in Article 41 of the Charter.
110 Consequently, it is necessary to examine whether the contested decision was adopted in breach of the right to be heard as a component of the right to good administration, as enshrined in Article 41(2)(a) of the Charter.
111 In that regard, it should be recalled that it follows from the general principle of EU law of respect for the rights of the defence, and in particular for the right to be heard enshrined in Article 41(2)(a) of the Charter, that the person concerned must be given the opportunity, before the drawing up of a decision adversely affecting him, to make known his views effectively as to the truth and relevance of the facts and circumstances on which the administration intends to base its decision. Furthermore, respect for the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 39).
112 Accordingly, a decision adversely affecting him can be taken only after the person concerned has been given the opportunity to put forward his view concerning the draft decision, in the context of an oral and/or written exchange of views initiated by the appointing authority, proof of which must be adduced by the latter (see, to that effect, judgment of 5 October 2016, ECDC v CJ, T‑395/15 P, not published, EU:T:2016:598, paragraph 57 and the case-law cited).
113 It is not disputed in the present case that the contested decision, adopted on the basis of Article 12(2)(c) of the CEOS, is an individual measure which would affect its addressee adversely. The applicant therefore had the right to be heard before the adoption of that decision, even if that provision does not specifically provide for such a right.
114 First, it is apparent from the email of 3 October 2016 (see paragraph 15 above) that, following the confirmation by the applicant of the existence of the OLAF investigation and of a disciplinary penalty which it had imposed on him following this, ENISA informed him, on the one hand, of the need to receive more details relating to those events for the purpose of making an informed decision in that regard, and, on the other hand, of the suspension of the recruitment procedure. That position was, moreover, also reiterated by ENISA in its emails of 14, 16 and 17 October 2016. Therefore, the applicant was duly informed of the intention of ENISA to postpone the decision relating to his recruitment to a later date.
115 Secondly, it is apparent from the case file that the applicant was informed, first, by the request of 4 November 2016 (see paragraph 19 above), that, in the absence of immediate and full disclosure of all events involving or having involved OLAF and of all subsequent decisions of the EIT in the context of the procedure leading to his disciplinary penalty, the Executive Director was strongly considering not considering his candidature any further. Subsequently, in his email of 8 November 2016 (see paragraph 20 above), the applicant had the opportunity to set out his position regarding the potential impact of the OLAF investigation and of the disciplinary penalty on the recruitment procedure for the post of Head of Unit. Finally, during the conference call organised on 11 November 2016 with the Executive Director, the Director of Human Resources and the Administrative Director (see paragraph 21 above), the applicant was given the opportunity to effectively make known his views as to the elements in respect of which the administration had raised questions.
116 It follows that, contrary to the claims of the applicant, ENISA provided him the opportunity to effectively make known his point of view concerning both the circumstances which had led the appointing authority of the EIT to impose the disciplinary penalty on him, and on the actions which the appointing authority of ENISA intended to take as a result of that penalty, if it were established.
117 It follows from the foregoing that the third plea in law and, consequently, the claim for annulment in its entirety, must be rejected.
B. The claim for damages
118 The applicant seeks compensation for the non-material and material damage he claims to have suffered as a result of the adoption of the contested decision.
119 In the first place, as regards the material damage allegedly suffered, the applicant claims financial loss corresponding, principally, to the loss of income suffered as compared with the situation in which he would have been if he had been appointed to the post of Head of Unit as well as to costs incurred by the contested decision and by the decision rejecting the complaint. In the alternative, in the event that the termination of his contract of employment is considered lawful, the applicant considers that the material damage amounts to the equivalent of three months’ notice, in accordance with Article 47 of the CEOS, namely three months’ salary at step 2 of grade AD 8, and the costs incurred as a result of the contested decision and the decision rejecting the complaint.
120 In the second place, as regards the non-material damage allegedly suffered, the applicant claims that this corresponds to the serious harm to his reputation and image deriving from the contested decision and the conditions in which it was adopted. In that regard, the applicant argues that ENISA unduly delayed the engagement procedure, exerting pressure on him, causing him serious health problems and irreparable harm to his career. The applicant assesses that damage, provisionally, ex aequo et bono, at EUR 60 000.
121 ENISA challenges that claim for compensation.
122 It must be recalled that, according to settled case-law regarding civil service matters, the European Union can be held liable for damages only if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered. Those three conditions are cumulative which means that if one of them is not satisfied the European Union cannot be held non-contractually liable (see judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraph 78 and the case-law cited).
123 Where the damage on which an applicant relies arises from the adoption of a decision whose annulment is sought, as in the present case, the rejection of the claim for annulment entails, as a matter of principle, the rejection of the claim for damages, as those claims are closely linked (see judgment of 15 September 2017, Commission v FE, T‑734/15 P, EU:T:2017:612, paragraph 120 and the case-law cited).
124 Applying the above considerations and in the absence of any valid reason advanced by the applicant, to derogate from the principle set out in paragraph 123 above, the claim for damages must also be rejected.
125 Moreover, as regards the applicant’s claim in the alternative referred to in paragraph 119 above, it must be held that it is based on the erroneous premiss that a contract has been concluded.
126 It follows from all the above considerations that the action must be dismissed in its entirety.
IV. Costs
127 Under 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.
128 Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by ENISA.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders TN to pay the costs.
Berardis | Papasavvas | Spineanu-Matei |
Delivered in open court in Luxembourg on 6 February 2019.
Table of contents
I. Background to the dispute
II. Procedure and forms of order sought
III. Law
A. The claim for annulment
1. The scope of the claim for annulment
2. The claim for annulment
(a) The first plea in law, alleging infringement of the contractual obligations of ENISA in relation to the applicant and infringement of the obligation to state reasons
(b) The second plea, alleging the unlawful processing of the personal data of the applicant, infringement of Article 12 of the CEOS, manifest error of assessment, infringement of the duty of care and of the right to good administration
(1) The first part, alleging unlawful processing of the applicant’s personal data by ENISA
(2) The second and third parts, alleging manifest error of assessment as regards the application of Article 12 of the CEOS
(c) The third plea, alleging infringement of the right to be heard and of the right to good administration
B. The claim for damages
IV. Costs