ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

22 April 2015

ED

v

European Union Agency for Network and Information Security (ENISA)

‛Civil service — Temporary staff member — Selection procedure — Decision rejecting an application, during the pre-selection stage, following examination by a selection board — No complaint lodged within the time-limit laid down in the Staff Regulations against the decision rejecting the application — Request for information — Reply from the authority authorised to conclude employment contracts not including a review of the decision rejecting the application — Complaint lodged against that reply — Failure to comply with the pre-litigation procedure — Manifest inadmissibility — Article 81 of the Rules of Procedure’

Application

:

under Article 270 TFEU, in which ED seeks annulment of a decision allegedly made by the European Union Agency for Network and Information Security (‘ENISA’ or ‘the Agency’) on 27 March 2014 not to retain her application for the second phase of a selection procedure designed to fill a Legal Officer post in function group AD (administrators) at grade AD 8.

Held

:

The action is dismissed as manifestly inadmissible. ED is to bear her own costs and is ordered to pay the costs incurred by the European Union Agency for Network and Information Security.

Summary

1. Judicial proceedings — Decision taken by way of reasoned order — Conditions — Action manifestly inadmissible or manifestly lacking any foundation in law — Scope

   (Rules of Procedure of the Civil Service Tribunal, Art. 81)

2. Actions brought by officials — Interest in bringing proceedings — Decisions rejecting an application for a position and appointing another candidate to that position — Application for annulment only of the decision rejecting the candidate — Lawfulness

   (Staff Regulations, Arts 90 and 91)

3. Actions brought by officials — Time-limits — A matter of public policy — To be considered of the Court’s own motion

   (Staff Regulations, Arts 90 and 91)

4. Actions brought by officials — Act adversely affecting an official — Definition — Measures producing binding legal effects — Decision rejecting an application for a position — Included — Inadequate statement of reasons for the decision — No effect

   (Staff Regulations, Arts 90 and 91)

5. Actions brought by officials — Time-limits — Point from which time starts to run — Notification — Absence of or inadequate statement of reasons for a duly notified decision — No effect

   (Staff Regulations, Arts 90 and 91)

1.  Under Article 81 of the Rules of Procedure of the Civil Service Tribunal, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may give a ruling by reasoned order without taking further steps in the proceedings.

   In particular, the dismissal of an action by reasoned order made on the basis of Article 81 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing, if, upon reading the case-file, the Tribunal, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the manifest inadmissibility of the application or that it is manifestly lacking any foundation in law and further considers that the holding of a hearing would be unlikely to provide new evidence capable of affecting that belief.

   (see paras 15, 16)

   See:

   Order in Mészáros v Commission, F‑22/13, EU:F:2014:189, para. 39 and the case-law cited therein

2.  Concerning actions contesting recruitment procedures, an unsuccessful candidate, whether he is an official, a staff member or a candidate from outside the institution or agency concerned, is not bound to seek annulment of both the decision rejecting his application for a particular position and the decision to include another candidate in the reserve list or to appoint that other candidate to the desired position. Indeed, no obligation simultaneously to seek the annulment of both those decisions can be imposed on an unsuccessful candidate who, wishing to protect third parties’ rights to be heard, seeks, in accordance with the principle of proportionality, only the annulment of the decision rejecting his application.

   Moreover, the argument that, if the position in question has already been filled when the action is brought, an unsuccessful candidate’s application for annulment of the decision rejecting his application will be admissible only if he also seeks annulment of the decision to appoint another candidate to that position would have the effect of introducing a condition for the admissibility of actions concerning the legality of acts adversely affecting officials brought under Article 90(2) of the Staff Regulations which is not laid down in those regulations: there is no requirement under Article 91 of the Staff Regulations (which relates to actions brought by officials before the Courts of the European Union against acts adversely affecting them) or indeed in any other legislation, that, in order for his action to be admissible, a candidate who has been unsuccessful in a selection procedure must necessarily direct that action against both the decision rejecting his application and the corresponding decision to appoint another candidate.

   (see paras 22, 23)

   See:

   Judgment in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paras 35, 44 and 47

3.  The time-limits for lodging complaints and bringing actions referred to in Articles 90 and 91 of the Staff Regulations are a matter of public policy and cannot be left to either the discretion of the parties or the discretion of the court, whose responsibility it is to ascertain, of its own motion, if they have been complied with. Those time-limits meet both the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice.

   Thus, neither the fact that, in its decision ruling on an administrative complaint, an institution or agency responded to the substantive arguments put forward without touching on the possibility that the complaint had been submitted out of time and was therefore inadmissible nor the fact that that institution or agency expressly informed the person concerned that he had the option of contesting that decision before the courts has any effect on the Civil Service Tribunal’s assessment of whether the action subsequently brought against that decision is inadmissible: facts of that kind are not capable of establishing a derogation from the system of mandatory time-limits established by Articles 90 and 91 of the Staff Regulations, still less of exempting the Tribunal from its obligation to verify that the time-limits laid down in those regulations have been complied with.

   (see paras 28, 29)

   See:

   Judgments in Müllers v ESC, 79/70, EU:C:1971:79, para. 18, and Moussis v Commission, 227/83, EU:C:1984:276, para. 13

   Judgments in Offermann v Parliament, T‑129/89, EU:T:1991:55, para. 34; Rasmussen v Commission, T‑35/96, EU:T:1997:36, para. 30, and order in Braun-Neumann v Parliament, T‑306/08 P, EU:T:2009:6, para. 37

   Orders in Schmit v Commission, F‑3/05, EU:F:2006:31, para. 24; Lebedef v Commission, F‑60/13, EU:F:2014:6, para. 36, and Michel v Commission, F‑44/13, EU:F:2014:40, para. 68

4.  A decision rejecting a person’s application clearly constitutes an act adversely affecting him since, in depriving him of the possibility of participating in the next phase of the recruitment procedure and, consequently, of any possibility of being appointed within the framework established by the vacancy notice, it produces binding legal effects liable directly and immediately to affect the interests of the person concerned by bringing about a distinct change in his legal position.

   Even if it is assumed that that decision may have been vitiated by an inadequate statement of reasons and even though the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him, the fact remains that that inadequate statement of reasons would in no way alter the fact that the decision was an act which adversely affected him.

   (see paras 31, 39)

   See:

   Judgments in Michel v Parliament, 195/80, EU:C:1981:284, para. 22, and Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, para. 42

   Judgment in Hendrickx v Cedefop, T‑87/99, EU:T:2000:191, para. 37

   Judgment in Tzirani v Commission, F‑46/11, EU:F:2013:115, para. 140

5.  An inadequate statement of reasons for a decision, which can be remedied by the administration at any time prior to its decision ruling on the complaint, has no effect on the calculation of the time-limit for lodging a complaint against that decision, provided that it is duly notified or otherwise effectively brought to the attention of the person concerned.

   It cannot be accepted that any decision of the administration, whether explicit or implied, containing either an inadequate statement of reasons or no statement of reasons (and thus necessitating a substantive examination) would be liable at any moment to become the subject of a request for an additional statement of reasons enabling officials or staff members to set themselves a new time-limit for lodging a complaint by claiming that they have three months from the receipt of that additional statement of reasons to lodge that complaint, even though the fact that a decision as referred to in Article 90(1) of the Staff Regulations contains an inadequate statement of reasons may — indeed must — be raised specifically in a complaint and thus be duly rectified, where necessary, by the administration in the decision ruling on that complaint.

   (see paras 41, 42)

   See:

   Judgments in H v Commission, T‑196/95, EU:T:1997:79, para. 35, and Casini v Commission, T‑132/03, EU:T:2005:324, para. 32

   Judgments in Longinidis v Cedefop, T‑283/08 P, EU:T:2011:338, para. 72, and Mocová v Commission, T‑347/12 P, EU:T:2014:268, paras 35 and 41

   Judgment in Sapara v Eurojust, F‑61/06, EU:F:2008:98, para. 67