Contents
Judgment of the General Court (Ninth Chamber)18 December 2024note(Civil service — Members of the temporary staff — Recruitment — Vacancy notice — Rejection of application — Action for annulment — Representation of an institution by one of its agents — Interest in bringing proceedings — Admissibility — Obligation to state reasons — Principle of good administration — Liability — Non-material damage)In Case T‑560/21,TB, represented by L. Levi and N. Flandin, lawyers,vEuropean Union Agency for Cybersecurity (ENISA), represented by C. Chalanouli, acting as Agent, and by B. Wägenbaur, lawyer,THE GENERAL COURT (Ninth Chamber),composed of L. Truchot, President, M. Sampol Pucurull and T. Perišin (Rapporteur), Judges,Registrar: P. Cullen, Administrator,having regard to the written part of the procedure,further to the hearing on 8 November 2023,gives the following
Judgment
1By her action based on Article 270 TFEU, the applicant, TB, seeks (i) the annulment, first, of the decision of the Selection Board of the European Union Agency for Cybersecurity (ENISA) of 10 November 2020 not to place her name on the list of successful candidates in respect of the post of Head of Unit ‘Executive Director Office’ and, second, in essence, of the decision of the Selection Board of ENISA of 12 January 2021 not to accept her application for the post of Head of Unit ‘Corporate Support Services’, and (ii) compensation for the non-material damage which she claims to have suffered.
Background to the dispute
2On 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, in order to fill the post of Head of Unit ‘Finance and Procurement’ for a period of three years until 31 October 2020.
3The applicant was placed on sick leave between 15 May and 17 November 2019. Upon returning to work, she was readmitted as Head of Unit ‘Policy Office’.
4At 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.
5On 26 February 2020, the Management Board of ENISA adopted Decision No MB/2020/5 on principles for ENISA’s internal reorganisation. 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’.
6On 5 August 2020, ENISA published on its website two notices concerning two open competitions with a view to filling the posts of Head of Unit ‘Executive Director Office’ (ENISA-TA70-AD-2020-04) and Head of Unit ‘Corporate Support Services’ (ENISA-TA71-AD-2020-05) (together, ‘the vacancy notices of 5 August 2020’), those units forming part of the six new units created following the reorganisation of ENISA. It was envisaged that the candidate selected for each of those two posts would be recruited as a member of the temporary staff at grade AD 9 for a period of five years, renewable for an indefinite period.
7On 1 September 2020, the Executive Director of ENISA 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 the tasks and functions existing within the current ENISA structures, on the one hand, and the tasks and functions of the new units, on the other, had made it possible to identify three head of unit posts which could be filled through internal mobility. The posts of Head of Unit ‘Executive Director Office’ and Head of Unit ‘Corporate Support Services’ were not among those identified as capable of being filled through internal mobility.
8On 6 September 2020, the applicant submitted her applications for the two competitions organised with a view to filling, first, the post of Head of Unit ‘Executive Director Office’ (‘the first competition at issue’) and, second, the post of Head of Unit ‘Corporate Support Services’ (‘the second competition at issue’).
9On 17 September 2020, each member of the two Selection Boards set up for the competitions at issue filled out and signed a declaration of conflict of interest.
10By letter of the Executive Director of ENISA, notified to the applicant on 10 November 2020, she was informed of the Selection Board’s decision not to place her name on the list of successful candidates in respect of the post of Head of Unit ‘Executive Director Office’ (‘the first contested decision’).
11On 10 December 2020, the name of the candidate selected in the context of the second competition at issue was announced orally by the Executive Director of ENISA to all staff members during a question-and-answer session on the reorganisation of ENISA. The appointment of the selected candidate was officially communicated to ENISA staff by email of 12 January 2021.
12By email of 3 January 2021, the applicant submitted a request for access to her personal data relating to the two competitions at issue.
13By email of 10 January 2021, the applicant submitted a request for access to information relating to the two competitions at issue, by which she sought to obtain details about her results and the other candidates’ results.
14By letter of 29 January 2021, received by the applicant on 3 February 2021, ENISA responded to her request for access to personal data, applying Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39). In particular, by that letter, ENISA communicated to the applicant, first, the assessment of her application for the first competition at issue, confirming that, following the interview and the written test, she had not reached the threshold required in order for her name to be placed on the reserve list for that competition and, second, the assessment of her application for the second competition at issue, stating that she had not reached the threshold required in order to pass the first stage of that competition.
15On 9 February 2021, the applicant, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), lodged a complaint against the first contested decision and the decision of the Selection Board of ENISA not to accept her application for the post of Head of Unit ‘Corporate Support Services’.
16By decision of 9 June 2021, ENISA rejected the applicant’s complaint (‘the decision rejecting the complaint’).
Forms of order sought
17The applicant claims that the Court should:– annul the first contested decision;– annul the decision of the Selection Board of ENISA not to accept her application for the post of Head of Unit ‘Corporate Support Services’;– annul, in so far as is necessary, the decision rejecting the complaint;– order ENISA to pay compensation for the non-material damage suffered by her;– order ENISA to pay the costs.
18ENISA contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
Law
The subject matter of the claims for annulment
Identification of the decision forming the subject matter of the second head of claim
19It follows from the case-law that the contested measure may be identified implicitly from the content of the application, in particular from the arguments put forward in support of the pleas in law raised before the Court, provided that that measure, together with the measure referred to in the form of order sought, forms part of one and the same dispute, and provided that the defendant was able to identify the contested measure and, therefore, has not been prejudiced in its rights of defence (see judgment of 22 December 2022, Parliament v Moi, C‑246/21 P, not published, EU:C:2022:1026, paragraph 59 and the case-law cited).
20In the present case, it must be observed that the applicant seeks the annulment of the decision identified in the schedule of annexes to the application as corresponding to Annex A.26 to the file. That annex includes the letter of 29 January 2021, referred to in paragraph 14 above, by which ENISA responded to her request for access to personal data concerning her.
21It should be noted that the letter of 29 January 2021 has neither the purpose nor the effect of informing the applicant that her application had not been accepted for the post of Head of Unit ‘Corporate Support Services’, but is intended solely to respond to her request for communication of her personal data, in accordance with the applicable rules.
22Nevertheless, as is apparent from paragraph 11 above, at the date of her request for communication of personal data, the applicant was already aware of the name of the candidate selected to fill the post of Head of Unit ‘Corporate Support Services’, which had been announced orally by the Executive Director of ENISA on 10 December 2020 during a question-and-answer session, then officially communicated to ENISA staff by email of 12 January 2021.
23Consequently, it is the official communication, by the email of 12 January 2021, of the name of the candidate selected to fill the post of Head of Unit ‘Corporate Support Services’ that gives tangible form to the decision of the Selection Board of ENISA not to accept the applicant’s application for that post. The official communication of that information necessarily implies the rejection of the applicant’s application in connection with the second competition at issue.
24Accordingly, since the email of 12 January 2021, together with the letter of 29 January 2021, forms part of one and the same dispute, and since ENISA was able to identify the relevant measure and, therefore, has not been prejudiced in its rights of defence, it must be held that the claim for annulment of the decision of the Selection Board of ENISA not to accept the applicant’s application for the post of Head of Unit ‘Corporate Support Services’ relates to the decision of 12 January 2021, which is contained in Annex A.25 to the file (‘the second contested decision’), and not to the letter of 29 January 2021.
The claim seeking annulment of the decision rejecting the complaint
25According 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).
26In the present case, it must be observed that the decision rejecting the complaint merely confirms the first and second contested decisions (‘the contested decisions’), and does not differ from them in scope. The fact that the Management Board of ENISA found it necessary, in response to the arguments put forward by the applicant in her complaint, to clarify the reasons for those decisions cannot justify the rejection of the complaint being regarded as an independent act adversely affecting the applicant, since the statement of reasons for that rejection is, in essence, the same as that relating to the decisions against which that complaint was directed. Consequently, the applicant’s action for annulment must be regarded as being directed against the contested decisions, the legality of which must, where appropriate, be examined by taking into account the statement of reasons contained in the decision rejecting the complaint.
27Accordingly, the claims for annulment must be regarded as being directed solely against the contested decisions.
Admissibility
The plea of inadmissibility relating to the representation of ENISA
28In response to a measure of organisation of procedure, the applicant submits that the requirement of representation by a lawyer who is independent and sufficiently distant from the legal person which he or she represents, as laid down by the case-law, has not been satisfied in the present case, on the ground that one of the agents representing ENISA in the present proceedings is the person selected for one of the posts at issue.
29ENISA disputes the applicant’s claims on account, inter alia, of that person’s status as a co-agent within a group of three agents, assisted by a lawyer. That said, in order to avoid any appearance of a lack of independence, ENISA revoked the power of attorney of two of the three agents initially appointed to represent it, while maintaining the power of attorney granted to the third agent, assisted by the same lawyer.
30In the first place, under Article 19 of the Statute of the Court of Justice of the European Union, applicable to the General Court pursuant to the first paragraph of Article 53 of that statute:‘The Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.…Other parties must be represented by a lawyer.…’
31In addition, Article 51(1) of the Rules of Procedure of the General Court provides that:‘A party must be represented by an agent or a lawyer in accordance with the provisions of Article 19 of the Statute [of the Court of Justice of the European Union].’
32According to Article 1(2)(g) of the Rules of Procedure, the term ‘institutions’ means the institutions of the European Union referred to in Article 13(1) TEU and the bodies, offices or agencies established by the Treaties, or by an act adopted in implementation thereof, which may be parties before the General Court.
33Thus, it follows from those provisions that, when it is a party to a dispute before the Court, ENISA, which is an agency initially created by Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency (OJ 2004 L 77, p. 1), and now governed by Regulation (EU) 2019/881 of the European Parliament and of the Council of 17 April 2019 on ENISA and on information and communications technology cybersecurity certification and repealing Regulation (EU) No 526/2013 (Cybersecurity Act) (OJ 2019 L 151, p. 15), must be represented before the Court by an agent appointed for each case, assisted, as the case may be, by an adviser or by a lawyer.
34In the second place, it should be recalled that, according to the case-law, the objective of parties not covered by the first and second paragraphs of Article 19 of the Statute of the Court of Justice of the European Union being represented by a lawyer is, on the one hand, to prevent private parties from acting on their own behalf before the Courts without using an intermediary and, on the other, to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person which he or she represents (see judgment of 14 July 2022, Universität Bremen v REA, C‑110/21 P, EU:C:2022:555, paragraph 46 and the case-law cited).
35In that context, the Court of Justice has emphasised that the objective of that task of representation by a lawyer, as referred to in the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, which is carried out in the interests of the sound administration of justice, is above all to protect and defend the principal’s interests to the greatest possible extent, acting in full independence and in line with the law and professional rules and codes of conduct (see judgment of 14 July 2022, Universität Bremen v REA, C‑110/21 P, EU:C:2022:555, paragraph 47 and the case-law cited).
36The condition of the independence of a lawyer is determined not only negatively, that is to say, by the absence of an employment relationship between the lawyer and his or her client, but also positively, that is to say, by reference to ethical obligations (see judgment of 14 July 2022, Universität Bremen v REA, C‑110/21 P, EU:C:2022:555, paragraph 49 and the case-law cited).
37As regards the positive determination of the concept of ‘independence’, the Court of Justice has expressly pointed out that that concept must be understood as requiring not the absence of any connection whatsoever between the lawyer and his or her client, but only the absence of a connection which had a manifestly detrimental effect on the capacity of the lawyer to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent, in line with the law and professional rules and codes of conduct (see judgment of 14 July 2022, Universität Bremen v REA, C‑110/21 P, EU:C:2022:555, paragraph 52 and the case-law cited).
38In applying the condition of independence imposed by EU law on the representatives of non-privileged parties, the Courts of the European Union carry out a restricted review which limits findings of inadmissibility in respect of actions brought before them to situations in which it is quite obvious that the representative concerned is not in a position to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent, with the result that that representative must be removed in the interests of the client (see judgment of 14 July 2022, Universität Bremen v REA, C‑110/21 P, EU:C:2022:555, paragraph 53 and the case-law cited).
39In the third place, however, it should be noted that the case-law referred to in paragraphs 34 to 38 above was developed solely as regards the representation by a lawyer of non-privileged parties for the purposes of the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union.
40As is apparent from paragraphs 30 to 33 above, since ENISA must be represented before the Court by an agent, assisted, as the case may be, by a lawyer, it is a privileged party for the purposes of the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union.
41Consequently, the principles derived from the case-law referred to in paragraphs 34 to 38 above are not applicable to ENISA.
42In the fourth place, even if the principles derived from the case-law referred to in paragraphs 34 to 38 above could be applied to privileged parties for the purposes of the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, it is not apparent from the applicant’s written pleadings that she is calling into question the independence of the third agent or the independence of the lawyer representing ENISA in the present proceedings.
43Therefore, the plea of inadmissibility raised by the applicant must be rejected.
The plea of inadmissibility relating to the applicant’s interest in bringing proceedings
44ENISA contends that the applicant no longer has an interest in bringing proceedings since she resigned approximately 10 days after the present action was brought. Thus, it maintains that the applicant resigned voluntarily in order to take up another position, which demonstrates that she no longer wished to work for ENISA.
45According to ENISA, the applicant’s situation is not comparable to that of an incapacitated official who has not chosen to be in a medical situation preventing him or her from engaging in active service and who, if that situation is reversible, may resume the activities which he or she has left.
46Moreover, ENISA contends that, if the applicant were to succeed in the present case, she would not automatically resume her duties within ENISA, since her name would, depending on how the judgment was complied with, be placed on the reserve list, with no subjective right to be selected and be given a new contract.
47ENISA also disputes the applicant’s argument that she retains an interest in bringing proceedings in order to prevent the alleged illegality from recurring in the future in the context of a similar procedure. It argues, in that regard, that the applicant now works for another employer and that her interest in pursuing the present proceedings is purely legal.
48The applicant disputes the merits of ENISA’s claims.
49In that regard, it must be recalled that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. The proof of such an interest, which is evaluated at the date on which the action is brought and which is an essential and fundamental prerequisite for any legal proceedings, must be adduced by the applicant (see judgment of 27 March 2019, Canadian Solar Emea and Others v Council, C‑236/17 P, EU:C:2019:258, paragraph 91 and the case-law cited).
50The interest in bringing proceedings must be vested and current. It may not concern a future and hypothetical situation. That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate. The Court hearing the case may raise of its own motion and at any stage of the proceedings the objection that a party has no interest in maintaining his or her application, by reason of the occurrence of a fact subsequent to the date on which the document instituting the proceedings was lodged (see judgment of 27 March 2019, Canadian Solar Emea and Others v Council, C‑236/17 P, EU:C:2019:258, paragraph 92 and the case-law cited).
51If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the General Court on the merits cannot bring that applicant any benefit (judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 43).
52It is clear from the case-law that an official who, by resigning, has shown his or her desire to cease to belong to the institution within which the posts filled by the contested measure were vacant has, in principle, lost his or her personal interest in the annulment of that measure (see, to that effect, judgment of 29 October 1975, Marenco and Others v Commission, 81/74 to 88/74, EU:C:1975:139, paragraphs 6 and 7).
53It is true that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by him or her has ceased to have effect in the course of proceedings. The person concerned by that act may retain an interest in having it annulled in order to be restored to his or her original position or in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated. Even where, because of the circumstances, it proves impossible to fulfil the obligation, owed by the institution the act of which has been annulled, to take the necessary measures to comply with the judgment annulling the act, the application for annulment may retain an interest as the basis for possible proceedings for damages (see judgment of 30 June 2022, Camerin v Commission, C‑63/21 P, not published, EU:C:2022:516, paragraph 48 and the case-law cited).
54However, it is for the applicant to prove that he or she has an interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings. In particular, in order for an action seeking annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner his or her interest in the annulment of that act (see judgment of 30 June 2022, Camerin v Commission, C‑63/21 P, not published, EU:C:2022:516, paragraph 50 and the case-law cited).
55In the present case, it must be noted that the applicant resigned from ENISA on 7 October 2021, that is to say approximately one month after the present action was brought, the application having been lodged on 2 September 2021. Through her resignation, the applicant thus showed her desire to cease working for ENISA.
56However, it must be noted that the applicant has put forward, in addition to her claims for annulment, a claim seeking compensation for the non-material damage suffered by her on account of the unlawful acts allegedly committed by ENISA. She submits that she retains an interest in bringing proceedings in order to seek, in the event that the contested decisions are annulled, compensation for the non-material damage allegedly resulting from those decisions.
57Consequently, it must be concluded that, although the applicant resigned after the present action was brought, she has justified an interest in obtaining the annulment of the contested decisions, in accordance with the case-law cited in paragraph 53 above. Accordingly, the plea of inadmissibility alleging that the applicant has no interest in bringing proceedings must be rejected as unfounded.
Substance
The claims for annulment
58In support of her action, the applicant puts forward three pleas in law. The first plea alleges that the contested decisions are unlawful, in so far as they result from the implicit decision not to identify the posts of Head of Unit ‘Policy Office’ and Head of Unit ‘Finance and Procurement’ as capable of being filled through internal mobility and from the vacancy notices of 5 August 2020, that decision and those notices also being, according to the applicant, unlawful. The second plea alleges breach of the principle of good administration, in so far as that principle includes the obligation to state reasons for acts adopted by the European Union. The third plea is put forward solely against the first contested decision and alleges breach of the principle of impartiality of the selection board, infringement of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and infringement of Article 14 of Decision No MB/2013/6 of the Management Board of ENISA on internal rules of procedure for the Management Board of ENISA and for the Executive Board of ENISA.
59The Court must first examine the second plea alleging breach of the principle of good administration, in so far as that principle includes the obligation to state reasons for the contested decisions.
60By her second plea, the applicant submits that ENISA failed to comply with the obligation to state reasons and the principle of good administration, which includes the right to be put in a position where one receives sufficient information to challenge a legal act.
61As regards the first contested decision, first, the applicant points out that that decision stated only that the Selection Board had been unable to place her name on the list of successful candidates in respect of the first competition at issue.
62The applicant states that it was only after her requests of 3 and 10 January 2021 that she finally received, on 3 February 2021, the assessment of her interview and her written test, consisting of an evaluation form and a table containing comments and marks.
63Second, the applicant submits that the assessment which she received does not enable her to understand the correspondence between the comments and the marks in the table, since some very positive comments correspond to a mark of 7.5/10, whereas other comments which are also very positive and contain no criticism correspond to a mark of 6.5/10.
64Third, the applicant argues, inter alia, that no additional information accompanies the written test in respect of which she obtained a mark of 23.5/40.
65As regards the second contested decision, first, the applicant submits that she learned that her application for the second competition at issue had been rejected when the Executive Director of ENISA announced, by email of 12 January 2021 addressed to ENISA staff, the name of the candidate selected for the post of Head of Unit ‘Corporate Support Services’.
66The applicant states that it was only after she had requested it that she finally received, on 3 February 2021, the assessment of her application for the second competition at issue.
67Second, the applicant maintains that the summary statement of reasons relating to her assessment does not meet the requirements of the case-law and does not enable her to understand the reasons why she was not even shortlisted for the competition, despite her previous professional experience acquired within ENISA over a period of three years as head of the ‘Finance and Procurement’ and ‘Policy Office’ units.
68Third, the applicant argues that there are discrepancies between the evaluation form relating to the post of Head of Unit ‘Executive Director Office’ and that relating to the post of Head of Unit ‘Corporate Support Services’.
69Lastly, as regards the contested decisions, the applicant submits that she should have received information about the other candidates, in accordance with point 5 of the vacancy notices of 5 August 2020, according to which ‘all enquiries or requests for information in relation to the competition, including details about candidates’ results[,] should be addressed to the following email address’.
70ENISA disputes the merits of the applicant’s claims.
71In that regard, it should be noted that, according to the second sentence of the second paragraph of Article 25 of the Staff Regulations, any decision adversely affecting an official is to state the grounds on which it is based. That obligation corresponds to the one laid down, more generally, in the second paragraph of Article 296 TFEU and in Article 41 of the Charter, concerning the principle of good administration, in particular paragraph 2(c) of that article.
72According to settled case-law, the obligation to state the reasons for a decision of the EU institutions adversely affecting an individual is intended to enable the EU Courts to review the legality of that decision and to provide the person concerned with sufficient information to know whether that decision is well founded or whether it is vitiated by a defect enabling its legality to be challenged (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 51 and the case-law cited).
73It follows that the statement of reasons must, in principle, be communicated to the person concerned at the same time as the act adversely affecting him or her and that a failure to state reasons cannot be remedied by the fact that the person concerned learns of the reasons for the decision during the proceedings before the EU Courts (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 51 and the case-law cited).
74The obligation of the administration to state the reasons for its decisions does not constitute, in general terms, a mere expression of transparency of the administration’s action, but must also enable the individual to decide, in full knowledge of the facts, whether there is any point in bringing proceedings before a court. There is therefore a close relationship between, on the one hand, the obligation to state reasons and, on the other, the fundamental right to effective judicial protection and the right to an effective remedy guaranteed by Article 47 of the Charter (see judgment of 22 September 2021, JR v Commission, T‑435/20, EU:T:2021:608, paragraph 47 and the case-law cited).
75Moreover, the statement of reasons required under Article 296 TFEU for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 29 and the case-law cited).
76In that regard, the Court of Justice has held that the absence of a statement of reasons could be found even where the decision in question contained certain elements of reasoning. Thus, a contradictory or unintelligible statement of reasons amounts to a failure to state reasons. The same applies where the statement of reasons in the decision in question is so incomplete that it does not in any way enable the addressee, in the context of its adoption, to understand its author’s reasoning. That is why the existence of the beginnings of a statement of reasons is subject to a detailed assessment by the EU Courts when they must decide whether a supplementary statement of reasons is admissible in the course of the proceedings (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 55 and the case-law cited).
77Lastly, according to the case-law, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations. That secrecy was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the EU administration itself or the candidates concerned or third parties. Observance of this secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates (see judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 24 and the case-law cited).
78Thus, the obligation to state the reasons on which decisions of a selection board in a competition are based must take account of the nature of the proceedings concerned (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 25).
79The task of a selection board involves as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a reserve list (see judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 26 and the case-law cited).
80It is in the light of those principles that it must be assessed whether ENISA complied with the principle of good administration in so far as that principle includes the obligation to state reasons for the contested decisions.
–The first contested decision
81In the first place, it is apparent from point 4 of the vacancy notice for the first competition at issue, contained in Annex A.26 to the file, that, in order to fill the post of Head of Unit ‘Executive Director Office’, the Selection Board had, first, to assess whether the candidates possessed the ‘qualifications and experience required’ to be deemed eligible for the competition in question.
82Next, it is apparent from point 5 of that notice that, second, the candidates deemed eligible were invited to undergo a ‘selection procedure’ consisting of two tests: an interview and a written test.
83In the present case, it is apparent from paragraph 10 above that, on 10 November 2020, the Executive Director of ENISA informed the applicant of the Selection Board’s decision not to place her name on the list of successful candidates in that competition. As is apparent from paragraphs 12 to 14 above, following the applicant’s requests for access to her personal data, ENISA communicated to her, on 29 January 2021, the assessment of her application in relation to the first competition at issue, confirming that, following the interview and the written test, she had not reached the threshold required in order for her name to be placed on the reserve list for that competition.
84Consequently, it must be held that the first contested decision comes under the second stage of the proceedings of the Selection Board, as referred to in paragraph 79 above.
85In the second place, it follows from the case-law that the second stage of the selection board’s proceedings involves tasks that are primarily comparative in character and is accordingly covered by the secrecy inherent in those proceedings (see judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 28 and the case-law cited).
86Thus, since the requirement to state reasons must be reconciled, in a competition or, more generally, in a selection procedure, with observance of the secrecy of the selection board’s proceedings, the communication of the candidate’s marks, in so far as they reflect the comparative assessments made by the selection board, constitutes, in principle, an adequate statement of reasons (see judgment of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraph 52 and the case-law cited).
87However, it is clear from paragraph 73 above that the statement of reasons must, in principle, be communicated to the person concerned at the same time as the act adversely affecting him or her.
88In particular, in the field of competitions enabling access to posts for officials or temporary staff of the European Union, at the end of the second stage of the selection board’s proceedings, the candidate who has taken the tests relating to that second stage must, in principle, be informed of the marks obtained in those tests at the same time as the decision not to place his or her name on the list of successful candidates in that competition (see, to that effect, judgment of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraphs 50 to 60).
89In that particular matter, and subject to exceptional circumstances such as those that characterise the organisation of competitions with a large number of candidates, the case-law does not make compliance with the obligation to state reasons conditional on the submission of any request, whether it be a prior complaint within the meaning of Article 90(2) of the Staff Regulations or a request for review (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraphs 31 and 41).
90It must be observed that the first contested decision is worded as follows:‘With reference to your application for the above mentioned selection procedure, and to the interview and written test to which you were invited, this letter is to inform you that after detailed assessment, the Selection Board was unable to place your name on the list of successful candidates on this occasion.The decision taken [does not] affect your participation in any future selection procedures at ENISA and for which you satisfy the eligibility conditions. I remind you that you have to submit a new application for each selection procedure in which you are interested.I would like to take this opportunity to thank you for the interest you have shown in the activities of ENISA and wish you every success in your future career.’
91It follows that the first contested decision, by which the applicant learned of the rejection of her application for the post of Head of Unit ‘Executive Director Office’, contains, as its sole piece of information, a reference to the fact that she was unsuccessful in the selection procedure. In so doing, it merely informs the applicant of the rejection of her application without notifying her of the marks awarded by the Selection Board in the two selection procedure tests.
92It is true that, as is apparent from paragraph 14 above, on 29 January 2021, ENISA communicated to the applicant the marks and assessment relating to her application in respect of the first competition at issue, confirming that, following the interview and the written test, she had not reached the threshold required in order for her name to be placed on the reserve list for that competition.
93Nevertheless, as is apparent from paragraphs 12 to 14 above, it was only following the applicant’s requests for access to her personal data that ENISA finally communicated to her the assessment of her application in relation to the first competition at issue, referring to the marks which she had obtained in the two selection procedure tests.
94In the third place, admittedly, in order to take account of the practical difficulties which arise in a competition involving a large number of candidates, the selection board may initially inform the candidates only of the criteria and the result of the selection, even if it may subsequently provide individual explanations to those candidates who expressly so request (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 31 and the case-law cited).
95However, in the present case, the exceptional circumstances required by the case-law cited in paragraph 94 above have not been established. ENISA has not even argued, let alone demonstrated, that the selection procedure relating to the first competition at issue was a competition involving a large number of candidates, and therefore that it was unable, from a practical point of view, to provide each candidate with an adequate statement of reasons in good time and that it was entitled to confine itself to subsequently providing individual explanations to the candidates who expressly so requested.
96As ENISA stated at the hearing, of the 111 applications submitted in the first competition at issue, only 14 candidates, including the applicant, were invited to the second stage of that competition, consisting of an interview and a written test. In those circumstances, addressing a detailed reply to the applicant would not therefore have resulted in an excessive workload for ENISA, especially since it concerned a decision the indirect consequence of which was not to allow a member of staff to continue her professional activity with the agency for which she had worked for more than three years (see, to that effect, judgment of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraph 58).
97Accordingly, it must be concluded that the first contested decision is vitiated by a failure to state reasons.
–The second contested decision
98In the first place, it is apparent from point 4 of the vacancy notice for the second competition at issue, contained in Annex A.26 to the file, that, in order to fill the post of Head of Unit ‘Corporate Support Services’, the Selection Board had, first, to assess whether the candidates possessed the ‘qualifications and experience required’ to be deemed eligible for the competition in question.
99Next, it is apparent from point 5 of that notice that, second, the candidates deemed eligible were invited to undergo a ‘selection procedure’ consisting of two tests: an interview and a written test.
100In the present case, as is apparent from paragraphs 12 and 14 above, in the second competition at issue, the applicant did not reach the threshold required in order to be assessed with respect to ‘qualifications and experience required’ and thus to be invited to undergo the interview and, subsequently, the written test.
101It is true that it is clear from point 4 of that vacancy notice that the process of selecting applications was conducted in two stages. In particular, in the context of the assessment of the ‘qualifications and experience required’, first, the Selection Board had to examine whether the candidates fulfilled the ‘eligibility criteria’. Second, in respect of the candidates who fulfilled the ‘eligibility criteria’, the Selection Board had to examine whether they fulfilled the ‘selection criteria’, which consisted of five ‘high scoring criteria’ and three ‘low scoring criteria’.
102In that regard, it must be observed that, although the method of assessment relating to those sets of criteria was distinct, in that the ‘selection criteria’ were accompanied by a numerical rating, unlike the ‘eligibility criteria’, the fact remains that the ‘selection criteria’, which were intended to assess whether the candidate held certain diplomas, the duration of professional experience in certain areas and whether the candidate possessed certain skills, corresponded to objective factors and were not subject to value judgments on the part of the Selection Board. Furthermore, the vacancy notice makes a clear distinction between the assessment of the ‘qualifications and experience required’, which is referred to in point 4 of that notice and consists of the ‘eligibility criteria’ and the ‘selection criteria’, on the one hand, and the ‘selection procedure’ proper, which is referred to in point 5 of that notice and includes the interview and the written test, on the other.
103Consequently, it must be held that the second contested decision comes under the first stage of the proceedings of the Selection Board, as referred to in paragraph 79 above.
104In this respect, that first stage, particularly where the competition is based on formal qualifications, consists in comparing the diplomas or other certificates of qualification provided by the candidates with the qualifications required by the notice of competition. Since that comparison is made on the basis of objective factors which, moreover, are known to each candidate in his or her own case, observance of the secrecy surrounding the proceedings of the selection board does not preclude communication of those objective factors and in particular of the criteria for assessment upon which the selection made at the stage of the preliminary proceedings in the competition was based, a selection which enables those whose applications have been rejected even before any individual test to ascertain the possible reasons for their elimination (see, to that effect, judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 27 and the case-law cited).
105Moreover, even where the selection board is obliged to provide, initially, only summary reasons, as is the case in a competition with a large number of candidates, those reasons must include the results of the competition concerned, and candidates cannot be expected to request communication of those results (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraphs 35 and 36).
106In the second place, as regards the statement of reasons for the second contested decision, it must be recalled that, as is apparent from paragraph 11 above, the applicant was informed of the result of her application only implicitly when, on 10 December 2020, the name of the candidate selected in the context of the second competition at issue was announced orally by the Executive Director of ENISA to all staff members during a question-and-answer session and then officially communicated to ENISA staff by email of 12 January 2021.
107It is also apparent from paragraphs 12 and 14 above that it was only after having sent the two requests of 3 and 10 January 2021 that the applicant received, on 3 February 2021, the assessment of her application for the second competition at issue, indicating that she had not reached the threshold required in order to be admitted to the next stage of that competition.
108As was noted in paragraph 23 above, it is the official communication, by the email of 12 January 2021, of the information relating to the name of the candidate selected to fill the post of Head of Unit ‘Corporate Support Services’ that gives tangible form to the decision of the Selection Board of ENISA not to accept the applicant’s application for that post. The official communication of that information necessarily implies the rejection of the applicant’s application in connection with the second competition at issue.
109In the present case, it must be stated that the applicant learned in an entirely incidental fashion that she had not been admitted to the interview and the written test, whereas it follows from paragraph 105 above that a candidate in a competition who is the subject of a decision not to admit him or her at the end of the first stage as defined in paragraph 104 above must, at the very least, be informed of the result of that recruitment procedure, even in the case of a competition with a large number of candidates. The result of the recruitment procedure in which an official or other staff member has participated constitutes the minimum information that must in any event be provided to candidates, since they cannot reasonably be expected to request communication of that result where its very existence is not known to them.
110Therefore, it must be held that the second contested decision is vitiated by a failure to state reasons.
111In view of the foregoing considerations and in the light of the case-law cited in paragraphs 73, 88 and 89 above, it must be concluded that ENISA failed to comply with its obligation to state reasons for the contested decisions and, consequently, infringed the applicant’s right to good administration, laid down in Article 41 of the Charter.
112It should be recalled that, when deciding on the consequences arising from the annulment of a measure relating to the selection procedures for EU staff, the EU Courts must seek to reconcile the interests of candidates disadvantaged by an irregularity which occurred during that procedure with the interests of other candidates, as a result of which they must take into account not only the need to restore the injured candidates’ rights, but also the legitimate expectations of the candidates already selected. In order to do so, the EU Courts must take into consideration the nature and effects of the irregularity in question and the various possible measures to reconcile the need to restore the rights of the injured applicant with the situation of third parties and the interests of the service. In that assessment, factors such as the number of persons affected by the irregularity of the selection procedure and the number of successful candidates may also be relevant (see judgment of 8 May 2019, Joint undertaking Fusion for Energy v Galocha, C‑243/18 P, EU:C:2019:378, paragraphs 46 and 47 and the case-law cited).
113In the present case, first, it must be observed that the defects vitiating the contested decisions are characterised by an infringement of the obligation to state reasons, which is an essential procedural requirement and failure to comply with which may be raised by the Court of its own motion. Second, it is not apparent from the file that those defects affected only the contested decisions; therefore, it cannot be ruled out that the other candidates who were not admitted at the end of the second stage of the first competition at issue and those who were not admitted at the end of the first stage of the second competition at issue were faced with the same illegality. Third, any annulment of the contested decisions would not necessarily entail the appointment of the applicant to one or other of the head of unit posts for which she had applied. Fourth and lastly, even if ENISA, in the context of measures intended to restore the applicant’s rights, were to envisage appointing her to one or other of the head of unit posts at issue in the present case, such an appointment would be capable of calling into question, as the case may be, only the appointment of a single person. Thus, in the light of those factors, the Court is not confronted with an exceptional situation in which the remedy of annulment should be regarded as excessive with respect to the rights of third parties.
114Accordingly, the second plea in law put forward by the applicant must be upheld, without it being necessary to examine the other arguments relied on in support of that plea, and the contested decisions must be annulled, without there being any need to examine the other pleas in law put forward by the applicant.
Claim for damages
115In support of the claim for damages, the applicant submits that she suffered non-material damage resulting from the unlawful acts committed by ENISA, which caused her significant stress and strong feelings of injustice and disrespect which affected her health as well as her dignity. She maintains that the non-material damage suffered by her cannot be compensated for by the mere annulment of the contested decisions. She claims that, accordingly, ENISA should be ordered to pay her damages assessed ex aequo et bono at EUR 5000.
116ENISA does not put forward any arguments relating to the applicant’s claim for damages.
117In that regard, it should be borne in mind that, in accordance with settled case-law, the European Union can be held liable to pay compensation if three conditions are satisfied, namely the illegality of the allegedly wrongful act committed by the EU institutions, bodies, offices or agencies, the actual and certain nature of the damage alleged and the existence of a causal link between the act alleged and that damage (see judgment of 13 January 2021, Helbert v EUIPO, T‑548/18, EU:T:2021:4, paragraph 116 and the case-law cited).
118Moreover, it follows from the settled case-law of the Court of Justice that non-material harm or material harm may, in certain situations, be regarded as being remedied appropriately and sufficiently by the annulment of the unlawful act which caused it (see judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 197 and the case-law cited).
119In the present case, it must be held that, having regard to the nature of the unlawful acts committed by ENISA and the nature of the damage alleged, the annulment of the contested measures is, in the circumstances of the present case, capable of ensuring that the non-material damage alleged is remedied appropriately and sufficiently.
120Accordingly, the applicant’s claim for damages must be dismissed as unfounded in so far as it relates to the non-material harm resulting from the unlawfulness of the contested decisions.
Costs
121Under 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. Since ENISA has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant.
Operative part
On those grounds,THE GENERAL COURT (Ninth Chamber)hereby:
1.Annuls the decision of the Selection Board of the European Union Agency for Cybersecurity (ENISA) not to place TB’s name on the list of successful candidates in respect of the post of Head of Unit ‘Executive Director Office’ (ENISA-TA70-AD-2020-04);
2.Annuls the decision of the Selection Board of ENISA not to accept TB’s application for the post of Head of Unit ‘Corporate Support Services’ (ENISA-TA71-AD-2020-05);
3.Dismisses the remainder of the claims set out in the application;
4.Orders ENISA to pay the costs.
Delivered in open court in Luxembourg on 18 December 2024.
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