ORDER OF THE GENERAL COURT (Ninth Chamber)
22 December 2023 (*)
(Civil service – Members of the temporary staff – Reorganisation of ENISA – Decision to renew a fixed-term contract – Assignment to non-managerial duties – Partial annulment – Non-severability – No challengeable act – Inadmissibility)
In Case T‑511/21,
TB, represented by L. Levi and N. Flandin, lawyers,
applicant,
v
European Union Agency for Cybersecurity (ENISA), represented by I. Taurina, G. Pappa and C. Chalanouli, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, M. Sampol Pucurull and T. Perišin (Rapporteur), Judges,
Registrar: V. Di Bucci,
makes the following
Order
1 By her action under Article 270 TFEU, the applicant, TB, seeks, in the first place, annulment of the decision of the European Union Agency for Cybersecurity (ENISA) renewing her employment contract in so far as it reassigned her to a non-managerial post (‘the contested decision’), as formalised by the amendment to the contract received on 13 October 2020 and the signature of that amendment on 26 October 2020. In the second place, the applicant seeks annulment, in so far as necessary, of the decision of ENISA of 12 May 2021 by which the Management Board of ENISA rejected her complaint of 12 January 2021 against the contested decision (‘the decision rejecting the complaint’). In the third place, the applicant seeks compensation for the material and non-material damage she claims to have suffered as a result of the adoption of those decisions.
Background to the dispute
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 (‘the CEOS’). 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. ENISA’s Executive Director offered the applicant two possibilities: either to conclude a one-year contract to fill a managerial post with no specific unit until the end of that contract, or to conclude a five-year contract to fill a non-managerial post, maintaining her grade and step.
7 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.
8 On 1 September 2020, ENISA’s Executive Director adopted Administrative Notice 2020-11 on the conclusion of the dialogues for internal mobility. 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.
9 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.
10 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 (‘the contract amendment’), 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’.
11 On 26 October 2020, the applicant signed the contract amendment, adding the words ‘without detrimental recognition and with all reservations’.
12 By email of 12 January 2021, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
13 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.
14 On 12 May 2021, ENISA adopted the decision rejecting the complaint.
15 On 7 October 2021, the applicant resigned from ENISA with effect from 15 November 2021.
Forms of order sought
16 The applicant claims that the Court should:
– annul the contested decision;
– annul, in so far as necessary, the decision rejecting the complaint;
– order ENISA to compensate her for the material and non-material damage allegedly suffered;
– order ENISA to pay the costs.
17 ENISA contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Subject matter of the dispute
18 According to settled case-law, an administrative complaint, such as that referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 19 October 2022, JS v SRB, T‑271/20, not published, EU:T:2022:652, paragraph 24 and the case-law cited).
19 In the present case, the Court observes that the decision rejecting the complaint merely confirms the contested decision, by setting out the reasons underpinning it, and does not have a different scope. The fact that the Management Board of ENISA was prompted, in response to the arguments raised by the applicant in her complaint, to clarify the reasoning for that decision cannot justify the rejection of the complaint being regarded as an autonomous act adversely affecting the applicant, since the statement of reasons for that rejection coincides, in substance, with the statement of reasons for the decision against which that complaint was directed (see, to that effect, judgment of 21 December 2021, KS v Frontex, T‑409/20, not published, EU:T:2021:914, paragraph 42).
20 Therefore, the claim for annulment must be regarded as being directed solely against the contested decision.
Admissibility
The claim for annulment
21 Without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court, ENISA argues that the action is inadmissible on the ground that, in essence, the contract amendment is not an act adversely affecting the applicant and the applicant has no interest in bringing proceedings.
22 In particular, ENISA argues that the action against the contract amendment does not procure any advantage to the applicant because, in the absence of such a decision, her employment contract would have expired.
23 Furthermore, ENISA submits that the applicant seeks the partial annulment of the contract amendment only in so far as it provides for her assignment to non-managerial duties. However, that element is not severable from the renewal of the contract for a period of five years.
24 ENISA also asserts that, in accordance with settled case-law, the applicant cannot claim a subjective right to have her employment contract renewed or, a fortiori, a right to insulate the content of the initial employment contract against changes in the event of renewal.
25 Lastly, ENISA maintains that even if the assignment of the applicant to non-managerial duties constituted a decision that could be severed from the renewal of her contract, such a decision would not be an act adversely affecting the applicant owing to the wide discretion enjoyed by the EU institutions, bodies, offices and agencies in organising their departments. It states, in that regard, that the decision was taken in the interests of the service and with due regard to the principle of equivalence of posts and that it had no effect on the applicant’s grade.
26 The applicant contends that she has an interest in bringing proceedings because her initial contract was not renewed in identical terms. She argues that since one of the essential elements of that contract was altered, namely the nature of the duties performed, she concluded a new contract.
27 In the alternative, the applicant claims that even if the Court finds that her contract was renewed, she seeks annulment of that renewal only in so far as it provided for her assignment to a non-managerial post.
28 The applicant also asserts that, according to the case-law, an action against a measure of internal organisation is admissible where that measure affects the legal and material position of the staff member concerned.
29 Lastly, the applicant maintains that even if she does not have a subjective right to exercise managerial duties, she does have a legitimate interest in bringing proceedings before the Court because her career prospects were affected and she no longer qualified for a management allowance.
30 Under Article 129 of the Rules of Procedure, on a proposal from the Judge-Rapporteur, the Court may, of its own motion at any time after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.
31 In the present case, the Court, having heard the parties by way of a measure of organisation of procedure, considers that it has sufficient information from the documents in the file and has decided to give a ruling without taking further steps in the proceedings.
32 In the first place, as regards the conditions for partial annulment of an EU act, it is clear from settled case-law that such annulment is possible only in so far as the elements whose annulment is sought may be severed from the remainder of the act. The Court of Justice has repeatedly held that the requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance. Review of whether the contested provisions are severable requires consideration of their scope, in order to be able to assess whether their annulment would alter the spirit and substance of the decision challenged (see judgment of 16 July 2015, Commission v Council, C‑425/13, EU:C:2015:483, paragraph 94 and the case-law cited).
33 Accordingly, since the Court is hearing an application for partial annulment of a decision, it is necessary to ascertain whether such partial annulment is possible.
34 In the present case, by her claim for annulment, the applicant actually seeks annulment of Article 3 of the contract amendment, under which she was assigned to non-managerial duties with effect from 1 November 2020.
35 In that regard, first, it follows from Article 2 of the CEOS that temporary staff recruited by the EU institutions, bodies, offices and agencies under that provision are engaged either to fill temporary posts or to fill temporarily permanent posts.
36 In particular, the applicant was recruited by ENISA under Article 2(f) of the CEOS, which allows an agency as referred to in Article 1a(2) of the Staff Regulations to engage temporary staff to fill posts included in the list of posts appended to the section of its budget which the budgetary authorities have classified as temporary, except heads of agencies and deputy heads of agencies as referred to in the Union act establishing that agency.
37 Furthermore, it is apparent from the documents before the Court that ENISA engaged the applicant for a fixed period, in accordance with the first paragraph of Article 8 of the CEOS, in order to fill the post of Head of the Finance and Procurement Unit and thereafter the post of Head of the Policy Office Unit.
38 Lastly, the contract amendment extended the duration of the applicant’s employment contract for a further renewable period of five years. Under Article 3 of that amendment, the applicant was assigned to non-managerial duties without prejudice to the possibility for ENISA to offer her managerial duties following a selection procedure.
39 Thus, in the light of the temporary nature of the posts assigned to the applicant and the fact that her employment contract was for a fixed term, the view must be taken that the description of her successive posts within ENISA constitutes an essential element of that contract.
40 Secondly, the finding in paragraph 39 above is borne out by the specific circumstances in which ENISA and the applicant concluded the contract amendment.
41 It should be noted that the applicant’s initial contract was to end on 31 October 2020 and, as part of ENISA’s reorganisation, the post of Head of the Policy Office Unit which she held was abolished.
42 As is apparent from paragraph 10 above, on 13 October 2020, ENISA offered to extend the applicant’s contract for a period of five years with a view to her performing non-managerial duties, in accordance with Article 20(2)(a) of Decision No MB/2018/14, under which, where the post 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 filling a vacant head of unit post in the Agency, reassign him or her to a non-managerial post.
43 It should also be pointed out that, as of 31 October 2020, the examination of the applicant’s applications for the new posts of Head of the Executive Director Office Unit and Head of the Corporate Support Services Unit was still underway within ENISA.
44 Consequently, since the managerial duties assigned to the applicant were linked to a post which was abolished as part of ENISA’s reorganisation, and since ENISA had not yet taken a decision on the applicant’s applications for equivalent posts, it had no alternative but to extend the applicant’s employment contract by assigning her to non-managerial duties, or not to renew that contract.
45 Thus, it is apparent from the circumstances of the present case that the assignment of the applicant to a non-managerial post constituted an essential and, therefore, non-severable element of the contract amendment.
46 In the second place, it follows from the case-law that where partial annulment of the contested act is not possible, the action must be dismissed as inadmissible, since the Court cannot declare an act void in its entirety if only an application for partial annulment has been brought before it, without ruling ultra petita (see order of 24 October 2019, Liaño Reig v SRB, T‑557/17, not published, EU:T:2019:771, paragraph 26 and the case-law cited).
47 Accordingly, in so far as the contested decision is not severable from the contract amendment itself and its partial annulment is not possible, the action must be dismissed as inadmissible, since the Court cannot declare the contract amendment void in its entirety when only an application for partial annulment has been brought before it, without ruling ultra petita.
48 In any event, the Court notes that the claim for annulment of the contract amendment in its entirety is inadmissible, since that amendment cannot be regarded as an act adversely affecting the applicant.
49 It should be borne in mind that, in order for any action for annulment brought by an official or other servant against the institution or agency by which he or she is or was employed to be admissible, it is a necessary condition that there be an act adversely affecting him or her within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations (order of 4 March 2022, KI v eu-LISA, T‑338/20, not published, EU:T:2022:130, paragraph 36; see also judgment of 12 October 2022, Paesen v EEAS, T‑88/21, EU:T:2022:631, paragraph 39 and the case-law cited).
50 Thus, according to settled case-law, an official or other servant is adversely affected by an act only where it is such as to have a direct effect on his or her position in law and thus goes beyond measures relating purely to the internal organisation of departments, which do not adversely affect the position of the official or other servant concerned under the Staff Regulations or which do not infringe the principle of correspondence between the grade of the official or other servant and the post to which he or she is assigned. Such an act falls within the discretionary power which each administration has to allocate duties among the members of its staff. Nevertheless, certain acts, even though they do not affect the material interests or the rank of an official or other servant, may be regarded as acts adversely affecting him or her if they adversely affect the non-material interests and the future prospects of the person concerned (see order of 4 March 2022, KI v eu-LISA, T‑338/20, not published, EU:T:2022:130, paragraph 37 and the case-law cited).
51 Moreover, the Court has consistently held that a member of the temporary staff with a fixed-term contract does not, in principle, have any right to the renewal of his or her contract, such renewal being merely a possibility, subject to the condition that it is in the interests of the service (see judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 48 and the case-law cited).
52 Unlike officials, whose security of tenure is guaranteed by the Staff Regulations, members of the temporary staff are covered by a different set of rules on which the contract of employment concluded with the EU institution, body, office or agency concerned is based. Thus, the duration of the employment relationship between an EU institution, body, office or agency and a member of the temporary staff engaged for a fixed term is, specifically, governed by the terms laid down in the contract concluded between the parties. Furthermore, it is also settled case-law that the administration has a broad discretion in matters of contract renewal (see judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 49 and the case-law cited).
53 In the present case, it should be noted that the applicant does not rely on any provision such as to preclude the application of the case-law cited in paragraph 51 above, according to which a member of the temporary staff recruited under a fixed-term contract has no right to have his or her contract renewed.
54 Furthermore, it is apparent from the documents before the Court that the contract amendment did not alter either the grade or the step at which the applicant had been classified when she was first recruited by ENISA.
55 In addition, while it is true that the contract amendment had to alter the applicant’s remuneration, since she was no longer entitled to the management allowance as from 1 January 2022, it is clear from her claims that she seeks payment of that allowance from that date, even though she resigned from ENISA on 15 November 2021. Thus, any reduction in her remuneration as from 1 January 2022 owing to non-payment of the management allowance is not a direct and certain result of the contract amendment, but of her resignation in the intervening period.
56 Finally, it has not been established that the contract amendment adversely affected the applicant’s non-material interests or future prospects. In that regard, Article 3 of the contract amendment expressly stated that it did not prevent ENISA from offering the applicant a new managerial post in the context of a new recruitment procedure.
57 In those circumstances, the Court finds that the action against the contract amendment would not procure any advantage to the applicant and that, in consequence, that decision cannot be regarded as an act adversely affecting her.
58 In the light of the foregoing considerations, the applicant’s claim for annulment of the contested decision must be dismissed as inadmissible.
The claim for damages
59 In support of her claim for damages, the applicant argues that ENISA should be ordered to pay her, as compensation for material damage, the management allowance as from 1 January 2022 and, as compensation for non-material damage, the sum of EUR 2 000.
60 In that regard, it must be borne in mind that a claim for compensation for material or non-material damage must be dismissed where it is closely linked to a claim for annulment which has itself been dismissed as inadmissible or unfounded (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 202 and the case-law cited).
61 In the present case, the Court finds that the claim for damages is closely linked to the claim for annulment. First, the applicant seeks compensation for material and non-material damage which she claims to have suffered as a result of the unlawful aspects of the contested decision. Secondly, she explains the nature of that damage, but does not rely, in support of her claim for damages, on heads of unlawfulness which differ from those which she set out in support of her claim for annulment.
62 Thus, since the claim for annulment has been dismissed as inadmissible, the claim for damages must also be dismissed.
63 Having regard to the foregoing considerations, the action must be dismissed as inadmissible in its entirety.
Costs
64 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.
65 Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by ENISA.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. TB shall pay the costs.
Luxembourg, 22 December 2023.