DG v European Union Agency for Network and Information Security (ENISA) (F-109/13)

Contents

Judgment of the european Union civil service Tribunal (Third Chamber)3 December 2014^note(Civil service — Temporary staff — Termination of contract — No statement of reasons — Failure to comply with the reports procedure — Manifest error of assessment)In Case F‑109/13,ACTION brought under Article 270 TFEU,DG, a former member of the temporary staff of the European Union Agency for Network and Information Security, residing in Heraklion (Greece), represented by L. Levi and A. Tymen, lawyers,vEuropean Union Agency for Network and Information Security (ENISA), represented initially by P. Empadinhas, acting as Agent, and by C. Meidanis, lawyer, and subsequently by P. Empadinhas and S. Purser, acting as Agents, and by C. Meidanis, lawyer,THE CIVIL SERVICE TRIBUNAL(Third Chamber),composed of E. Perillo, acting as President, R. Barents (Rapporteur) and K. Bradley, Judges,Registrar: X. Lopez Bancalari, Administrator,having regard to the written procedure and further to the hearing on 25 June 2014,gives the following

Judgment

1By application received by the Tribunal Registry on 4 November 2013, DG seeks, first, the annulment of the decision of the European Union Agency for Network and Information Security (ENISA) of 31 January 2013 terminating her employment contract and, secondly, her reinstatement, the payment of her financial benefits from the effective date of the termination of her contract until her reinstatement and compensation in respect of the non-material harm which she considers herself to have suffered.

Legal context

2The legal context of the present case is constituted by Article 30 of the Charter of Fundamental Rights of the European Union, Article 9 TFEU and Article 47(c)(i) of the Conditions of Employment of Other Servants of the European Union in the version prior to the entry into force of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (‘the CEOS’).

3Article 4 of Convention No 158 of the International Labour Organisation (‘the ILO Convention’) concerning termination of employment at the initiative of the employer, adopted on 22 June 1982, states:‘The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.’

4Article 24(a) of the European Social Charter, signed at Turin on 18 October 1961 and revised at Strasbourg on 3 May 1996, guarantees the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

Facts

5On 1 September 2005, the applicant was recruited by ENISA as a member of the temporary staff at Grade AD 9, for a three-year period as an expert in the field of awareness-raising and promotion of best practices concerning network and information security. From May 2008, she was employed on a contract for an indefinite period.

6From 2005 to 2010 she led the ‘Awareness-raising’ section. From 2011, she was in charge of the ‘European Cyber-Security Month’ project (‘the ECSM project’).

7On 27 November 2012, the Board of Directors of ENISA adopted the 2013 Annual Work Programme. Under that programme, following which the ‘Awareness-raising’ department was dismantled, raising public awareness concerning network and information security was to become a task performed ‘horizontally’.

8The Multi-annual Staff Policy Plan 2013-2015, adopted at the end of 2012, states as follows:‘It is … the view of [ENISA] that Article 3 of Regulation [No] 460/2004 listing the tasks of [ENISA], among which awareness-raising, provides for a general task of [ENISA] to which all the operational sections and organisational entities dealing with external communication should be contributing in their daily work and annual deliverables. The central idea behind this development is that all ENISA staff will not only carry out awareness-raising activities, but will also have the knowledge and experience to enable them to describe how such activities increase the impact of [ENISA].’

9On 5 December 2012, a meeting was held in the presence of the applicant, ENISA’s Executive Director and the head of the ‘Technical Competence’ department during which the Executive Director explained that the implementation of the Work Programme 2013 and the Multi-annual Staff Policy Plan 2013-2015 required ENISA to undertake new tasks in certain technical fields, but that no new posts were envisaged to support this additional workload on account of budgetary restrictions, that, consequently, new posts were to be created by the redeployment of staff in awareness-raising posts of lesser importance and that, rather than dismissing the persons currently in those posts, including the applicant herself, ENISA would try to redeploy them, provided they had the necessary qualifications.

10On 7 December 2012, the Executive Director sent a letter to the applicant, summarising and confirming what had been said at the meeting of 5 December 2012 and asking the applicant to inform ENISA as soon as possible and before 21 December 2012 of any acquired knowledge or professional experience which would make her suitable for appointment to one of the posts to be created.

11By email of 12 December 2012 to the Executive Director, the applicant confirmed that she had received a copy of the letter of 7 December 2012 on 11 December 2012 in the afternoon. Since she had an exceptional workload owing to a draft report which had to be finalised quickly, she asked in that email, on account of the importance of the subject-matter, to be granted an additional period of 1 day, and stated that she would submit her reply at the latest during the day on 21 December 2012.

12On 19 December 2012, the Executive Director issued a reprimand to the applicant, taking the view that she had deliberately lied in declaring, in her email of 12 December 2012, that she had received the letter of 7 December 2012 on 11 December 2012 in the afternoon, whereas she had received it on 7 December 2012, as evidenced by a cross-check on ENISA’s computer system.

13By letter of 20 December 2012, the applicant replied to the letter of 7 December 2012.

14By letter of 31 January 2013, the Executive Director informed the applicant that she had not demonstrated a usable skill or experience for the posts to be created, that is to say, the posts of experts in network and information security, and that, consequently, he had decided to terminate her contract (‘the contested decision’).

15By letter of 24 April 2013, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

16By letter of 22 August 2013, that complaint was rejected (‘the decision rejecting the complaint’).

Forms of order sought and procedure

17The applicant claims that the Tribunal should:— annul the contested decision;— annul the decision rejecting the complaint;— order her reinstatement and pay the financial benefits due to her from the effective date of the termination of her contract until her reinstatement, with the deduction of any income earned by her over that period, plus interest for late payment calculated at the rate set by the European Central Bank, increased by three points;— pay compensation to her in respect of the non-material harm suffered, assessed on equitable principles at EUR 10 000;— order ENISA to pay the costs.

18ENISA contends that the Tribunal should:— dismiss the application for annulment;— dismiss the applicant’s application for reinstatement and the application for payment of financial benefits in respect of the period between the date of termination of her contract and the date of her reinstatement;— dismiss the application for compensation for non- material harm;— order the applicant to pay the costs.

19By letter of 19 March 2014, the applicant lodged an offer of further evidence.

Law

The offer of further evidence of 19 March 2014

20By letter of 19 March 2014, the applicant made an offer of further evidence, which included a declaration of 3 March 2014 from the former head of ENISA’s Public Affairs Unit, a declaration of 14 March 2014 from the former deputy director of ENISA’s Technical Competence Unit, the 2005 vacancy notice for the applicant’s post and two emails of 29 October and 28 November 2013.

21According to Article 57 of the Rules of Procedure, the parties may offer further evidence in support of their arguments up until the end of the hearing, on condition that the delay in offering to produce it is duly justified.

22Since the applicant has not justified the delay in the production of those documents, the offer of further evidence of 19 March 2014 must be rejected.

The claim for annulment of the decision rejecting the complaint

23It is settled case-law that claims for annulment formally directed against the decision rejecting a complaint, where that decision has no independent content, have the effect of bringing before the Court the act against which the complaint was submitted (judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8). Since, in this case, the decision rejecting the complaint has no independent content, the action must be regarded as directed against the constested decision.

The claim seeking the applicant’s reinstatement and payment of her financial benefits

24It is settled case-law that the Courts of the Union have no jurisdiction to issue directions to the institutions (judgment in V v Parliament, F‑46/09, EU:F:2011:101, paragraph 63 and the case-law cited).

25In an action brought under Article 91 of the Staff Regulations, heads of claim requesting the Tribunal to address directions to the administration or to recognise the validity of certain pleas in law relied on in support of a claim for annulment are manifestly inadmissible, since it is not for the Union judicature to issue directions to the institutions of the Union or to make statements of law in the abstract. That applies to claims requesting the Civil Service Tribunal to establish the existence of certain facts and to instruct the administration to adopt the measures required to reinstate the person concerned in their rights (see, to that effect, order in Palou Martínez v Commission, F‑11/10, EU:F:2010:69, paragraphs 29 to 31).

26Consequently, the head of claim by which the applicant seeks her reinstatement and the payment of her financial benefits in respect of the period between the date of termination of her contract and the date of her reinstatement must be rejected as inadmissible.

The claim for annulment of the contested decision

27In support of her action, the applicant puts forward three pleas in law, alleging, first, misuse of powers, secondly, a failure to state reasons and a manifest error of assessment and, thirdly, infringement of the duty of care or of the obligation to actively search for a redeployment solution.

28Following questions put at the hearing on the relationship between the second and third pleas, the applicant stated that the plea alleging the infringement of the duty of care constitutes a plea lodged in the alternative to the second plea.

The first plea, alleging a misuse of powers

–Arguments of the parties

29The applicant claims that she was the victim of a ‘constructive dismissal’, which is vitiated by a misuse of powers. First, ENISA did not follow the applicable procedure for the career development report. Had she been informed of the assessment of her performance, her objectives and recommended training, she could have trained in relevant fields for the future of ENISA. Secondly, ENISA did not describe the actual and current changes in her duties in her job description. Furthermore, without any prior consultation, she received a new job description in August 2012 referring to the field of awareness-raising, whereas this was the only field in which she no longer carried out duties. Thirdly, she was not officially informed until December 2012 that the reorganisation of the policy on awareness-raising might affect her post, nor did ENISA explain why the management of the ECSM project required the presence of an engineer. Fourthly, the disciplinary procedure took place within the critical period and was therefore probably carried out in order to undermine her position. Lastly, the applicant points out that there were some rumours circulating within ENISA regarding the imminent termination of her employment. According to the applicant, all those factors indicated that ENISA, in a process beginning in 2011, succeeded in giving the impression in 2013 that there was no option other than to terminate her contract, whereas in fact that was not the case.

30ENISA contends that the first plea should be rejected.

–Findings of the Tribunal

31It is settled case-law that there is no misuse of powers unless there is objective, relevant and consistent evidence which makes it possible to establish that the contested act pursued an aim other than that ascribed to it by the applicable provisions of the Staff Regulations (judgment in Skareby v Commission, F‑46/06, EU:F:2008:26, paragraph 156).

32In this connection, it is not enough for the applicant to rely on certain facts in support of her claims; she must also adduce evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability, failing which the material accuracy of ENISA’s claims cannot be called into question (see judgment in Skareby v Commission, EU:F:2008:26, paragraph 157).

33So far as concerns the argument relating to the lack of a career development report in respect of 2011, it must be observed that that argument fails to have regard to the fact that the 2013 Work Programme was adopted by the Board of Directors only on 27 November 2012 and that it was only following the adoption of that programme that the awareness-raising activities were classified as a general task of ENISA to which all operational sections and all organisational entities responsible for external communication should henceforth contribute in their daily work and by means of their annual results. Therefore the applicant cannot claim that if her career development report in respect of 2011 had been drawn up in conformity with the rules in force, she would have been able to anticipate the possible consequences with regard to her future duties within ENISA.

34Furthermore, there is nothing in the file to show that, in accordance with Article 5(12) of the Decision of the Executive Director of ENISA of 10 September 2008 on general provisions for implementing Article 43 of the Staff Regulations and Article 15 of the Conditions of Employment of Other Servants, the applicant referred the matter to the countersigning officer where the reporting officer failed to comply with the time-limits for drawing up the career development report. In any event, in an email of 28 February 2012, the applicant stated that she had familiarised herself with the draft 2013 Work Programme and expressed the wish to establish a training schedule in order to enhance her knowledge with a view to the forthcoming changes.

35The argument relating to the actual and current changes concerning her duties in her job description must be rejected. The contested decision was adopted notwithstanding the applicant’s activities in the field of awareness-raising and the ECSM project, and is based on the consideration that she did not have the academic training or experience necessary to be redeployed to other posts. In any event, the applicant did not express any objections concerning the reference, in her new job description, to the field of awareness-raising.

36The third argument has no factual basis. It was only after the adoption of the 2013 Work Programme, on 27 November 2012, that ENISA had to address changes in its human resources policy resulting from that programme. It is common ground that the applicant was informed, on 5 December 2012, by the Executive Director, of the consequences for her individual situation. On any view, the applicant has not shown how prior notification of those consequences could have improved her chances of being redeployed within ENISA.

37So far as concerns the fourth argument, it is sufficient to note that this is a mere contention, and the applicant has not provided any evidence capable of proving that the disciplinary procedure and the alleged rumours influenced or could have influenced the final outcome or the content of the contested decision.

38It follows that the first plea must be rejected.

The second plea, alleging a manifest error of assessment and infringement of the obligation to state reasons

–Arguments of the parties

39The applicant submits that, in the absence of a genuine restriction on staff numbers and of the possibility of a new allocation of resources, as is apparent from the European Commission document entitled ‘Changes related to Staff Regulation review – cutting staff by 5%’, ENISA’s ‘preventative’ approach of terminating the employment of members of staff is not legitimate. She adds that, according to the document ‘Commission – Agencies financial statement’, ENISA requested six new posts, one of which broadly fell under the ECSM project for which the applicant was responsible. According to the applicant, the scope and the content of the ECSM project could not warrant the termination of her employment given that ENISA continued to carry out both awareness-raising activities and activities relating to the ECSM project. In this connection, the applicant observes that she participated in a range of activities concerning the management of the ECSM project and that, from 2011, she did not perform any further activities in the awareness-raising field. Moreover, that project had been entrusted to her for the previous two years and was supposed to last for a period covering at least the following two years, as is apparent from the 2013 and 2014 Work Programmes.

40The applicant also submits that one of the persons to whom the ECSM project was entrusted is a seconded national expert, which is contrary to Article 6 of the Commission decision of 12 November 2008, laying down rules on the secondment to the Commission of national experts and national experts in professional training.

41Lastly, referring to Article 4 of the ILO Convention, Article 24(a) of the European Social Charter and Article 30 of the Charter, the applicant concludes that the termination of her employment is not based on legitimate grounds, in so far as those grounds were justified, on one hand, by budgetary constraints which are not accurate and, on the other hand, by the alleged removal of tasks for which in fact she was not responsible in the first place, whereas the ECSM project is still valid and is due to last for at least two more years.

42ENISA contends that the second plea should be rejected.

–Findings of the Tribunal

43The Tribunal notes that it is apparent from the contested decision that the termination of the applicant’s contract is based on the consideration that she does not have the training or the experience required to be redeployed to another existing or future post. It is therefore necessary to examine whether, by basing the contested decision on such a consideration, ENISA committed a manifest error of assessment.

44An 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, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings upheld by the administration in its decision implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid (judgments in AJ v Commission, F‑80/10, EU:F:2011:172, paragraphs 34 and 35; Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 51, and order in Mészáros v Commission, F‑22/13, EU:F:2014:189, paragraph 52).

45In that regard, the applicant’s argument that her activities within ENISA had not been linked to the awareness-raising field since 2011, given that she had been placed in charge of the ECSM project, must be rejected at the outset.

46It is evident from her final job description, dated August 2012, that the applicant was primarily responsible for awareness-raising activities. As it has already been noted in paragraph 35 above, the applicant did not dispute this description. It is also apparent from the description of the ECSM project that, until 2013, the main objective of that project was awareness-raising.

47Secondly, it is common ground that, under ENISA’s new guidance and in particular its 2014 Annual Work Programme, awareness-raising, which formerly was performed by a group of employees, became a task performed on a horizontal basis by all ENISA employees, and the role of those employees in the ECSM project developed into one of advising and providing technical assistance to the Member States. That development led to all the new posts within ENISA becoming highly technical, so that their holders required specific university qualifications in computer science.

48Lastly, it is not disputed that the applicant was very committed to the field of awareness-raising.

49It follows that the decision to terminate the applicant’s contract on the ground that she had demonstrated neither qualifications nor professional experience which might be used in the performance of tasks requiring highly technical qualifications cannot be regarded as vitiated by a manifest error of assessment.

50The applicant’s argument relating to the presence of a seconded national expert must be rejected, since she does not claim that the contested decision was adopted in order to permit the secondment of a national expert and to recruit that expert in her place.

51As regards the references to Article 4 of the ILO Convention, to Article 24(a) of the European Social Charter and to Article 30 of the Charter, it must be observed that, in its judgment in ETF v Schuerings, T‑107/11 P, EU:T:2013:624, the General Court of the European Union held:100 Article 30 of the [C]harter … does not lay down any specific obligations. It cannot be inferred from it that, in a case such as the present, the [agency] necessarily has a prior obligation to examine the possibility of redeploying the member of staff such as that identified by the Tribunal …. Nor does that provision preclude, having regard to all the facts of the case, the termination decision from being regarded as justified. In this connection, the special operational constraints of agencies, the existence of measures to support the member of staff whose employment is at risk of termination or consideration of the possibility of his transfer to another agency or institution may, in particular, be regarded as relevant circumstances.101 As regards, for the sake of completeness also, the legal instruments in the field of employment law relied on by [the applicant], it must be noted that Article 4 of the [ILO] Convention states that [“t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service[”], and that Article 24(a) of the European Social Charter ... guarantees [“]the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service[”]. Without it being necessary to rule on the issue of whether those legal instruments apply to the employment relationship, governed by the CEOS, between a member of the temporary staff and a European Union agency, it must be held that it cannot be inferred either from the wording of the abovementioned texts that there is an obligation such as that imposed on an entity faced with the transfer of one of its activities to another entity ....’

52In the light of that case-law, it follows that the second plea must be rejected.

The plea lodged in the alternative, alleging an infringement of the duty of care or of the obligation to actively search for a redeployment solution

–Arguments of the parties

53Referring to the case-law of the ILO’s Administrative Tribunal and of the Civil Service Tribunal and to Article 9 TFEU, the applicant submits that, under the duty of care, ENISA should have searched effectively and on a case-by-case basis for a post such as to correspond to her profile, also taking account of her experience within ENISA, her university references and the appraisal of her performance as excellent. The applicant argues that ENISA did not comply with that obligation. First, ENISA did not explain why her various qualifications and acquired experience would not enable her to perform the tasks of an expert in the field of network and information security. She adds that the other members of the ‘Awareness-raising’ team were redeployed despite having completed their university studies in a different area. Secondly ENISA failed to inform the applicant of the vacant posts and so assist in her redeployment to another post. Thirdly, under the case-law of the ILO’s Administrative Tribunal, ENISA was required to offer the applicant a redeployment solution, even if it was at a lower grade than her previous post. Fourthly, the applicant identified various other fields in which ENISA operated in which her experience could be used, without the Executive Director following this up. The applicant concludes that, under the case-law cited, it is for the employer to prove that the profile of a member of staff does not meet the requirements of any job description.

54ENISA contends that the plea raised in the alternative should be rejected.

–Findings of the Tribunal

55Article 47(c)(i) of the CEOS provides that, apart from cessation on death, the employment of temporary staff, where the contract is for an indefinite period, is to cease at the end of the period of notice stipulated in the contract; the length of the period of notice may not be less than one month for each completed year of service, subject to a minimum of three months and a maximum of 10 months.

56It is consistent case-law that, with regard to the termination of a contract for an indefinite period held by a member of the temporary staff, the competent authority has, pursuant to Article 47(c)(i) of the CEOS and subject to the period of notice contained in the contract, a broad discretion and the judicial review exercised by the European Union judicature must therefore be limited to whether there has been a manifest error or a misuse of powers (judgment in ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 162 and the case-law cited).

57It must also be pointed out that, in its judgment in ETF v Schuerings (EU:T:2013:624, paragraph 81), the General Court of the European Union ruled that the duty of care cannot warrant an interpretation of Article 47(c)(i) of the CEOS under which the competent authority must examine, prior to terminating the employment of a member of the temporary staff employed on the basis of a contract for an indefinite period, whether that member of staff could be redeployed to another existing post or a post about to be created. That Court confirmed the case-law at paragraph 57 of the judgment in Commission v Macchia (T‑368/12 P, EU:T:2014:266).

58It follows that in the light of that case-law, the applicant cannot claim that ENISA should have effectively searched for a post which would correspond to her profile.

59As regards the case-law of the ILO Administrative Tribunal, it is sufficient to observe that that case-law does not warrant the Civil Service Tribunal departing from the General Court’s judgment in ETF v Schuerings (EU:T:2013:624), in which the judgment at first instance was set aside on appeal.

60So far as concerns Article 9 TFEU, that provision does not lay down any specific obligations. It cannot be inferred from it that, in a case such as that presently before the Tribunal, there is necessarily a prior obligation on ENISA to examine the possibility of redeploying the member of staff.

61It follows that the applicant cannot claim that the contested decision is unlawful on the ground that ENISA, before the adoption of that decision, did not examine whether her profile corresponded to another existing or future post within ENISA.

62Consequently, the plea raised in the alternative must be rejected.

63Since all the pleas have been rejected, the claim for annulment must be rejected.

The claim for compensation

Arguments of the parties

64The applicant submits that the infringement of the rights described above has caused her non-material harm. Not only was her employment terminated, but she was also required actively to search for a redeployment solution, to no avail, given the lack of any intention on ENISA’s part to give her a chance. She evaluates her non-material harm, on equitable principles, at EUR 10 000.

65ENISA contends that the claim for compensation should be rejected.

Findings of the Tribunal

66According to consistent case-law in the civil service field, where a claim for compensation is closely connected with a claim for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the claim for compensation (judgments in Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43; Fries Guggenheim v Cedefop, F‑47/09, EU:F:2010:36, paragraph 119, and Časta v Commission, F‑40/09, EU:F:2010:74, paragraph 94).

67In the present case, the claim for annulment has been rejected.

68Consequently, the claim for compensation must also be rejected.

69It follows from all the foregoing that the action must be dismissed in its entirety.

Costs

70Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.

71It follows from the grounds set out in the present judgment that the applicant has been unsuccessful in her action. Furthermore, in its pleadings, ENISA has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the case do not warrant the application of the provisions of Article 102(1) of the Rules of Procedure, the applicant must bear her own costs and is ordered to pay the costs incurred by ENISA.

Operative part

On those grounds,THE CIVIL SERVICE TRIBUNAL(Third Chamber)hereby:

1.Dismisses the action.

2.Declares that DG is to bear her own costs and orders her to pay the costs incurred by the European Union Agency for Network and Information Security.

Delivered in open court in Luxembourg on 3 December 2014.