Judgment;Abstract — ECLI:EU:T:2024:914
Date: 2024-12-18
Language of the case: English
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Action for damages - unfounded;Staff cases - successful

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. 68 Third, 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’. 69 Lastly, 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’. 70 ENISA disputes the merits of the applicant’s claims. 71 In 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. 72 According 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). 73 It 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). 74 The 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). 75 Moreover, 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). 76 In 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). 77 Lastly, 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). 78 Thus, 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). 79 The 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). 80 It 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 81 In 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. 82 Next, 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. 83 In 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. 84 Consequently, 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. 85 In 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). 86 Thus, 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). 87 However, 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. 88 In 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). 89 In 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). 90 It 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.’ 91 It 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. 92 It 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. 93 Nevertheless, 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. 94 In 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). 95 However, 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. 96 As 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). 97 Accordingly, it must be concluded that the first contested decision is vitiated by a failure to state reasons. – The second contested decision 98 In 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. 99 Next, 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. 100 In 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. 101 It 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’. 102 In 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. 103 Consequently, 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. 104 In 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). 105 Moreover, 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). 106 In 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. 107 It 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. 108 As 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. 109 In 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. 110 Therefore, it must be held that the second contested decision is vitiated by a failure to state reasons. 111 In 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. 112 It 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). 113 In 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. 114 Accordingly, 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 115 In 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 5 000. 116 ENISA does not put forward any arguments relating to the applicant’s claim for damages. 117 In 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). 118 Moreover, 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). 119 In 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. 120 Accordingly, 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 121 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since ENISA has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant. 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. Truchot Sampol Pucurull Perišin Delivered in open court in Luxembourg on 18 December 2024. V. Di Bucci S. Papasavvas Registrar President * Language of the case: English.