CELEX: 62014FO0105
Language: en
Date: 2015-04-22 00:00:00
Title: Order of the Civil Service Tribunal (Third Chamber) of 22 April 2015. # ED v European Union Agency for Network and Information Security (ENISA). # Civil service - Temporary staff member - Selection procedure - Decision rejecting an application, during the pre-selection stage, following examination by a selection board - No complaint lodged within the time-limit laid down in the Staff Regulations against the decision rejecting the application - Request for information - Reply from the authority authorised to conclude employment contracts not including a review of the decision rejecting the application - Complaint lodged against that reply - Failure to comply with the pre-litigation procedure - Manifest inadmissibility - Article 81 of the Rules of Procedure. # Case F-105/14.

Parties
               Grounds
               Operative part
               
            
            Parties
            In Case F‑105/14,
            ACTION brought under Article 270 TFEU,
            ED, a temporary staff member of the Office for Harmonisation in the Internal Market (Trade Marks and Designs), residing in Barcelona (Spain), represented by S.A. Pappas, lawyer,
            applicant,
            v
            European Union Agency for Network and Information Security (ENISA),  represented by A. Ryan, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,
            defendant,
            THE CIVIL SERVICE TRIBUNAL (Third Chamber)
            composed of S. Van Raepenbusch, President, H. Kreppel and J. Svenningsen (Rapporteur), Judges,
            Registrar: W. Hakenberg,
            makes the following
            Order 
            
            Grounds
            1. By application received at the Registry of the Civil Service Tribunal on 9 October 2014, the applicant brought the present action seeking, in essence, the annulment of a decision allegedly made by the European Union Agency for Network and Information Security (‘ENISA’ or ‘the Agency’) on 27 March 2014 not to retain her application for the second phase of a selection procedure designed to fill a Legal Officer post in function group AD (administrators) at grade AD 8.
            Legal context 
            2. Under the heading ‘Selection procedure’, the vacancy notice ENISA-TA-AD-2013-05 relevant to the present case (‘the vacancy notice’) was worded as follows:
            ‘Candidates will be appointed to a [post] according to the needs of the Agency on the basis of the reserve list of candidates proposed by the Selection [Board] and established following an open selection [procedure] involving interviews and tests.
            More specifically, the Selection [Board] [will decide] on those candidates who are [to be] admitted to the selection procedure in accordance with the requirements as specified in the vacancy notice. The applications of the candidates admitted to the selection procedure [will be] reviewed and the Selection [Board] [will decide] on those candidates who are [to be] invited to attend an interview. ...’
            3. In addition, it was explicitly stated in the vacancy notice, under the heading ‘Complaints’, that the three-month time-limit for lodging a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union, in the version then applicable (‘the Staff Regulations’), ‘start[ed] to run from the time the candidate [was] notified of the act adversely affecting him/her’.
            Facts giving rise to the dispute 
            4. The applicant is a temporary staff member of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and entered the service there in 2001.
            5. On 11 July 2013, ENISA published the vacancy notice on its website. The selection procedure comprised two phases. In the first phase, the Selection Board decided, on the basis of the criteria set out in the vacancy notice, which candidates should be invited to an interview with that Board. At the end of those interviews, which constituted the second phase of the selection procedure, the Selection Board was then to put forward the names of the candidates who were to be included in the reserve list which would later be used for recruitment purposes.
            6. On 26 August 2013, the applicant submitted her application, which was received by ENISA before the deadline stated in the vacancy notice.
            7. By an e-mail of 27 January 2014, ENISA informed the applicant of the Selection Board’s decision not to retain her application for the second phase of the selection procedure, as follows: ‘[A]fter [a] detailed evaluation, the Selection Board was unable to place [the applicant’s] name on the list of candidates to be invited for an interview on [that] occasion.’ It was also stated that ‘[t]he result of [that] selection procedure [would] in no way [affect the applicant’s] participation in any future selection procedures at ENISA ... for which [she satisfied] the eligibility conditions’ (‘the e-mail of 27 January 2014’).
            8. Having had a telephone conversation — the date of which is unknown — with a member of the ENISA department in charge of recruitment procedure regarding her exclusion from the selection procedure, the applicant wrote to that person by e-mail on 27 January 2014 (‘the request for information of 27 January 2014’) (the same day that she had received the e-mail mentioned in paragraph 7 above), as follows: ‘Further to our telephone conversation the other day, would you mind telling me why I was not selected in this selection procedure? It would help me for further applications.’
            9. Following up on the request for information of 27 January 2014, by e-mail of 27 March 2014 ENISA sent the applicant the evaluation of her application as carried out by the Selection Board. First, the evaluation stated that the applicant met the admission requirements set out in the vacancy notice relating to her nationality, knowledge of two languages, university education and a minimum of nine years’ professional experience. Next, the evaluation included a breakdown of the marks which the Selection Board had awarded the applicant during the first phase of the selection procedure for each of the ten ‘Essential Criteria’ and the five ‘Advantageous Criteria’ listed in the vacancy notice (‘the breakdown of the marks’). According to the breakdown of the marks, the Selection Board, after examining all the applications received, had awarded the applicant’s application 58 points out of a possible 100. However, that mark was below the 70-point threshold indicated in the evaluation of the applicant’s application which a candidate would need to reach in order to be able to participate in the second phase, namely the interview with the Selection Board.
            10. On 6 May 2014, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against ‘the decision [not to retain her] application in the selection [procedure] pertaining to the vacancy for legal officer ...’ with the Agency’s Executive Director in his capacity as the authority authorised to conclude employment contracts. Maintaining that she ‘[had not been] effectively made aware of the decision [not to retain] her [application until 27 March] 2014’, that is, until receiving the breakdown of the marks, the applicant submitted in that complaint that ENISA had adopted a decision adversely affecting her with regard to her application on 27 March 2014, rather than on 27 January 2014.
            11. The applicant explained in her complaint that, ‘[d]ismayingly, by the e-mail communicated ... on [27 January] 2014, she [had been] informed of the fact that her application [had not been retained] for the second phase of the [selection procedure]’. However, ‘[a]s the [correspondence in question had] failed to communicate the decision and any grounds upon which [her] application [had been rejected]’, it was not until 27 March 2014, when the breakdown of the marks had finally been notified to her, that the applicant ‘[had] effectively [been] informed of the decision not to [retain her] application and the [evaluation relating] thereto’.
            12. By a decision of 28 August 2014, the Head of ENISA’s Administration and Support Department, acting on behalf of the authority authorised to conclude employment contracts, rejected the complaint of 6 May 2014 as unfounded (‘the decision rejecting the complaint’). In that regard, without taking a position on the admissibility of the complaint, the authority authorised to conclude employment contracts stressed that the applicant ‘[had been] advised in January 2014 [of the fact] that she had not been invited for an interview’ and that she had received, ‘[i]n March 2014, ... a detailed [evaluation] form that [had been] prepared by the Selection [Board]’.
            Forms of order sought 
            13. Essentially, the applicant claims that the Tribunal should:
            – annul ENISA’s decision of 27 March 2014, upheld in the decision rejecting the complaint, not to retain her application in the selection procedure relating to the Legal Officer post at ENISA;
            – order ENISA to pay the costs.
            14. ENISA contends that the Tribunal should:
            – declare that there is no need to rule on the action;
            – in the alternative, dismiss the action as unfounded;
            – order the applicant to pay the costs.
            Law 
            The Tribunal’s decision to give a ruling by reasoned order 
            15. Under Article 81 of the Rules of Procedure, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may give a ruling by reasoned order without taking further steps in the proceedings.
            16. In particular, in accordance with settled case-law, the dismissal of an action by reasoned order made on the basis of Article 81 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing, if, upon reading the case-file, the Tribunal, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the manifest inadmissibility of the application or that it is manifestly lacking any foundation in law and further considers that the holding of a hearing would be unlikely to provide new evidence capable of affecting that belief (order in Mészáros  v Commission , F‑22/13, EU:F:2014:189, paragraph 39 and the case-law cited).
            17. In the present case, the Tribunal considers itself to be sufficiently informed by the documents before it to give a ruling, and thus decides that it is appropriate to apply Article 81 of its Rules of Procedure and to give a ruling by reasoned order without taking further steps in the proceedings.
            The applicant’s interest in bringing proceedings 
            Arguments of the parties
            18. ENISA contends that, since the selection procedure has been successfully closed and the position in question has been filled by another candidate, the present action for annulment has become devoid of purpose, given that the applicant has not asked the Tribunal to annul the decision to appoint the other candidate to the position concerned and that, in any event, she has in no way explained what advantage she could possibly obtain from continuing with her action.
            19. The applicant has raised the issue of her interest in bringing proceedings in the present case in her application, and submits that she has such an interest in so far as, by the present action, she seeks a declaration that her application for the Legal Officer post was wrongly rejected since — in her opinion — she should have been invited to an interview with the Selection Board.
            Findings of the Tribunal
            20. As a preliminary point, it should be borne in mind that, according to settled case-law, a claim for annulment is not admissible unless the applicant has an interest in seeing the contested measure annulled. Such an interest can be present only if the annulment of the measure is itself capable of having legal consequences for the person concerned or, to put it another way, if the action is liable, if successful, to procure an advantage for the party who has brought it (judgment in Labiri  v EESC , F‑124/10, EU:F:2013:21, paragraph 56, and order in Colart and Others  v Parliament , F‑87/13, EU:F:2014:53, paragraph 38 and the case-law cited).
            21. Concerning actions contesting recruitment procedures, it is true that, according to case-law, a decision to exclude an application from a selection procedure and a decision to appoint one of the candidates involved in that procedure are not just linked but are indissociable, so that a single, overall assessment must be made of the unsuccessful candidate’s interest in obtaining annulment of those two decisions, whether he is an official, a staff member or a candidate from outside the institution or agency concerned (judgment in Commission  v Strack , T‑526/08 P, EU:T:2010:506, paragraph 45).
            22. However, it cannot be inferred from that case-law that an unsuccessful candidate is bound to seek annulment of both the decision rejecting his application for a particular position and the decision to include another candidate in the reserve list or to appoint that other candidate to the desired position. Indeed, no obligation simultaneously to seek the annulment of both those decisions can be imposed on an unsuccessful candidate who, wishing to protect third parties’ rights to be heard, seeks, in accordance with the principle of proportionality, only the annulment of the decision rejecting his application (see, to that effect, judgment in Commission  v Moschonaki , T‑476/11 P, EU:T:2013:557, paragraphs 35 and 44).
            23. Moreover, ENISA’s argument that, if the position in question has already been filled when the action is brought, an unsuccessful candidate’s application for annulment of the decision rejecting his application will be admissible only if he also seeks annulment of the decision to appoint another candidate to that position would have the effect of introducing a condition for the admissibility of actions concerning the legality of acts adversely affecting officials brought under Article 90(2) of the Staff Regulations which is not laid down in those regulations: there is no requirement under Article 91 of the Staff Regulations (which relates to actions brought by officials before the Courts of the European Union against acts adversely affecting them) or indeed in any other legislation, that, in order for his action to be admissible, a candidate who has been unsuccessful in a selection procedure must necessarily direct that action against both the decision rejecting his application and the corresponding decision to appoint another candidate (judgment in Commission  v Moschonaki , EU:T:2013:557, paragraph 47).
            24. The arguments put forward by ENISA in support of a declaration that there is no need to adjudicate must therefore be dismissed as unfounded.
            Compliance with the obligation to lodge a prior complaint within the time-limit laid down in the Staff Regulations 
            Arguments of the parties
            25. The applicant has also raised the issue of the admissibility of her action in her application, and argues that she complied with the time-limits applicable to the pre-litigation procedure. In that regard, she submits that she was not able to infer from the e-mail of 27 January 2014 that the Selection Board had decided not to invite her to an interview. Indeed, she maintains that she was not ‘effectively made aware of the complete decision of [the Selection Board] [not to retain] her [application] [until receiving the breakdown of the marks]’. She argues that it follows from settled case-law, including the judgments in Lavagnoli  v Commission (T‑95/04, EU:T:2006:131, paragraphs 44 and 45) and Sapara  v Eurojust  (F‑61/06, EU:F:2008:98, paragraph 67), that a person may not be considered to have been duly notified of an act adversely affecting him until the moment he is in a position effectively to comprehend the meaning and scope of that act.
            26. In its defence, ENISA identifies the contested decision as being ‘the decision of ... 27 March 2014 not to retain the applicant’s application for the second phase of the selection procedure’ but does not dispute that it is an act adversely affecting a person within the meaning of Article 90(2) of the Staff Regulations; nor does it call in question the fact that it could have been the subject of the complaint finally lodged, in the present case, on 6 May 2014.
            Findings of the Tribunal
            – General considerations
            27. According to settled case-law, the admissibility of an action brought before the Tribunal under Article 270 TFEU and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner and upon the prescribed time-limits for that procedure being complied with (judgments in Huygens  v Commission , T‑281/01, EU:T:2004:207, paragraph 125, and Van Neyghem  v Committee of the Regions , T‑288/04, EU:T:2007:1, paragraph 53, and order in Lebedef v Commission , F‑60/13, EU:F:2014:6, paragraph 37).
            28. In that regard, it should be borne in mind that the time-limits for lodging complaints and bringing actions referred to in Articles 90 and 91 of the Staff Regulations are a matter of public policy and cannot be left to either the discretion of the parties or the discretion of the court, whose responsibility it is to ascertain, of its own motion, if they have been complied with. Those time-limits meet both the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, in particular, judgment in Müllers  v ESC , 79/70, EU:C:1971:79, paragraph 18; orders in Schmit  v Commission , F‑3/05, EU:F:2006:31, paragraph 24, and Lebedef  v Commission , EU:F:2014:6, paragraph 36).
            29. Thus, neither the fact that, in its decision ruling on an administrative complaint, an institution or agency — as in the present case — responded to the substantive arguments put forward without touching on the possibility that the complaint had been submitted out of time and was therefore inadmissible nor the fact that that institution or agency expressly informed the person concerned that he had the option of contesting that decision before the courts has any effect on the Tribunal’s assessment of whether the action subsequently brought against that decision is inadmissible: facts of that kind are not capable of establishing a derogation from the system of mandatory time-limits established by Articles 90 and 91 of the Staff Regulations, still less of exempting the Tribunal from its obligation to verify that the time-limits laid down in those regulations have been complied with (see judgments in Moussis  v Commission , 227/83, EU:C:1984:276, paragraph 13; Offermann  v Parliament , T‑129/89, EU:T:1991:55, paragraph 34; and Rasmussen  v Commission , T‑35/96, EU:T:1997:36, paragraph 30; orders in Braun-Neumann v Parliament , T‑306/08 P, EU:T:2009:6, paragraph 37, and Michel  v Commission , F‑44/13, EU:F:2014:40, paragraph 68).
            30. It should also be borne in mind that the possibility of submitting a request pursuant to Article 90(1) of the Staff Regulations cannot allow an official to circumvent the time-limits laid down in Articles 90 and 91 of the Staff Regulations for lodging a complaint and bringing an action by indirectly calling in question, in that request, an earlier decision which was not challenged within the proper time-limits (orders in Michel  v Commission , EU:F:2014:40, paragraph 46, and Turkington v Commission , F‑127/14, EU:F:2014:267, paragraph 18 and the case-law cited).
            – Compliance with pre-litigation requirements in the present case
            31. Regarding the e-mail of 27 January 2014, it must be found that it explicitly set out the position of the authority authorised to conclude employment contracts with regard to the rejection, during the first phase of the selection procedure, of the applicant’s application after ‘detailed evaluation’ of that application by the Selection Board. Accordingly, although it did not set out the ‘detailed evaluation’ referred to therein, that e-mail none the less clearly constituted an act adversely affecting the applicant since, in depriving her of the possibility of participating in the phase involving an interview with the Selection Board and, consequently, of any possibility of being appointed within the framework established by the vacancy notice, it produced binding legal effects liable directly and immediately to affect the applicant’s interests by bringing about a distinct change in her legal position (see judgments in Commission  v Fernández Gómez , C‑417/05 P, EU:C:2006:582, paragraph 42, and Hendrickx  v Cedefop , T‑87/99, EU:T:2000:191, paragraph 37).
            32. In those circumstances, in so far as the applicant was clearly informed by the e-mail of 27 January 2014 of the decision rejecting her application at the end of the first phase of the selection procedure (‘the decision of 27 January 2014’), it was open to the applicant to lodge a complaint against that decision under the second indent of the first subparagraph of Article 90(2) of the Staff Regulations within three months of the date of notification, a time-limit which expired on 27 April 2014 in the present case.
            33. It is true that, on the same day that she was made aware of the decision of 27 January 2014, the applicant asked ENISA for further information regarding the specific reason or reasons why her application had been rejected. However, the Tribunal considers that the request for information of 27 January 2014 cannot be regarded as being a complaint against the decision of 27 January 2014 by which the applicant was claiming that that decision was vitiated by an inadequate statement of reasons (see, to that effect, order in Hogan  v Parliament , T‑115/92, EU:T:1993:71, paragraph 37), as, in any event, the wording of the request for information of 27 January 2014, which refers only to the applicant’s wish to improve any applications she might make in the future, does not reveal any wish on her part to contest the decision of 27 January 2014 which had been notified to her that same day or even to request a review of that decision.
            34. Therefore, it is established that the applicant did not lodge a direct complaint against the decision of 27 January 2014 within the time-limit laid down in the Staff Regulations which, for that decision, expired on 27 April 2014; in addition, it must be found that, in the present case, she is not seeking the annulment of that decision in either the form of order sought or in the main text of her application.
            35. Instead, using ENISA’s communication on 27 March 2014 of the evaluation of her application to participate in the selection procedure at issue — made in response to the request for information of 27 January 2014 — as a pretext, on 6 May 2014 the applicant lodged her complaint against a decision rejecting her application which — according to her — had not taken place until 27 March 2014, the date on which she had effectively been made aware, in detail, of the evaluation (particularly the breakdown of the marks) which had been carried out by the Selection Board.
            36. In that regard, it must be pointed out that — contrary to the applicant’s assertions — the authority authorised to conclude employment contracts had adopted such a decision on 27 January 2014 and had explicitly informed her of that decision by e-mail sent that same day, and it is not disputed that the applicant became aware of that e-mail on that date. In those circumstances, if she were to seek to contest that decision of 27 January 2014, the complaint would have to be regarded as lodged out of time, as it was lodged outside of the three-month time-limit laid down in the second indent of the first subparagraph of Article 90(2) of the Staff Regulations.
            37. In addition, that complaint, considered as a complaint lodged against the evaluation of the applicant’s application as communicated on 27 March 2014, must be regarded as having been directed against an act which merely confirms the decision of 27 January 2014. According to case-law, an act which contains no new elements as compared with a previous act and which has not been preceded by a review of the situation of the person to whom it is addressed merely confirms that previous act; accordingly, the adoption of that act cannot have the effect of resetting the time-limit for lodging a complaint or bringing an action (see judgments in Grasselli  v Commission , 23/80, EU:C:1980:284, paragraph 18, and Commission  v Fernández Gómez , EU:C:2006:582, paragraph 46; order in Krahl  v Commission , T‑358/03, EU:T:2005:301, paragraph 47; judgment in Grünheid  v Commission , F‑101/05, EU:F:2006:58, paragraph 34).
            38. It is clear from the communication of 27 March 2014 that it merely revealed the contents of the evaluation which had already been carried out by the Selection Board and on the basis of which the decision of 27 January 2014 — also communicated to the applicant — had been adopted. Moreover, there is nothing to suggest that the confirmation of the rejection of the applicant’s application contained in the communication of 27 March 2014 can be regarded as having been adopted by the authority authorised to conclude employment contracts following examination of a new element of fact or law which arose or was invoked by the applicant after the decision of 27 January 2014. In those circumstances, the communication of the breakdown of the marks, in view of its content and the circumstances in which that breakdown was communicated to the applicant, does not constitute an act adversely affecting the applicant which is separate from the decision of 27 January 2014. Accordingly, it cannot be held that the complaint, which, according to the applicant, concerned the decision of 27 January 2014 as supplemented by the breakdown of the marks drawn up and sent on 27 March 2014, was lodged in compliance with the requirements laid down in the Staff Regulations concerning the pre-litigation phase.
            39. Furthermore, regarding the applicant’s argument that the decision of 27 January 2014 did not become an act adversely affecting her until the moment that the authority authorised to conclude employment contracts provided her with the further information she had requested (here, 27 Ma rch 2014), the Tribunal observes, first, that the decision of 27 January 2014 stated, by way of a brief statement of reasons, that it had been adopted ‘after [a] detailed evaluation’ of her application. In any event, even if it is assumed that that decision may have been vitiated by an inadequate statement of reasons and even though the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him (judgments in Michel  v Parliament , 195/80, EU:C:1981:284, paragraph 22, and Tzirani  v Commission , F‑46/11, EU:F:2013:115, paragraph 140), the fact remains that that inadequate statement of reasons would in no way alter the fact that the decision of 27 January 2014, which the applicant became aware of that same day, was an act which adversely affected her.
            40. Secondly, it is clear from the case-file that the e-mail of 27 January 2014, which the applicant became aware of that same day, easily enabled the applicant to have effective knowledge of the content of the decision of 27 January 2014 in accordance with the judgment in Lavagnoli  v Commission  (EU:T:2006:131, paragraphs 44 and 45) cited by the applicant. Moreover, the content of the request for information of 27 January 2014 confirms the fact that the applicant had fully understood that the authority competent to conclude employment contracts had decided to reject her application.
            41. Thirdly, if the Tribunal were bound to accept the applicant’s reasoning, any decision of the administration, whether explicit or implied, containing either an inadequate statement of reasons or no statement of reasons (and thus necessitating a substantive examination) would be liable at any moment to become the subject of a request for an additional statement of reasons enabling officials or staff members to set themselves a new time-limit for lodging a complaint by claiming that they have three months from the receipt of that additional statement of reasons to lodge that complaint, even though the fact that a decision as referred to in Article 90(1) of the Staff Regulations contains an inadequate statement of reasons may — indeed must — be raised specifically in a complaint and thus be duly rectified, where necessary, by the administration in the decision ruling on that complaint (judgments in Longinidis  v Cedefop , T‑283/08 P, EU:T:2011:338, paragraph 72, and Mocová v Commission , T‑347/12 P, EU:T:2014:268, paragraph 35).
            42. As regards the applicant’s reference to the judgment in Sapara  v Eurojust  (EU:F:2008:98, paragraph 67), the Tribunal must point out that, notwithstanding the findings that may have been reached in an isolated case (see judgment in H  v Commission , T‑196/95, EU:T:1997:79, paragraph 35), an inadequate statement of reasons for a decision, given that it can be remedied by the administration at any time prior to its decision ruling on the complaint (see, to that effect, judgments in Casini  v Commission , T‑132/03, EU:T:2005:324, paragraph 32, and Mocová  v Commission , EU:T:2014:268, paragraph 41), has no effect on the calculation of the time-limit for lodging a complaint against that decision, even if it contains no statement of reasons, provided that it is — as in the present case — duly notified or otherwise effectively brought to the attention of the person concerned.
            43. It follows from the foregoing that, in so far as the action is directed only against the breakdown of the marks, as supplemented by the decision rejecting the complaint, it must be rejected as being manifestly inadmissible, it being clear that, in any event and although she had obtained the further information which she had requested one month before the expiry of the three-month time-limit laid down in the Staff Regulations for bringing an action against the decision rejecting her application, the applicant did not lodge a complaint against the decision of 27 January 2014 within that time-limit; nor has she sought the annulment of that decision in her application, but has instead sought the annulment of a decision made on 27 March 2014 which in fact is merely an act confirming the previous decision.
            44. For the sake of completeness, the Tribunal notes that, in her action, the applicant also seeks the annulment of the decision rejecting the complaint. However, assuming that that decision could be regarded as containing a review of the applicant’s situation by the authority authorised to conclude employment contracts in the light of elements of fact or law relied on by her in her complaint together with a more detailed statement of reasons than the one included in the decision of 27 January 2014, it would then be necessary to hold that the decision rejecting the complaint in fact constitutes a decision rejecting a request for review under the second sentence of Article 90(1) of the Staff Regulations which, on that basis, should have been the subject of a prior complaint before the applicant brought the present action. Accordingly, when viewed in that light, the claim for annulment of the decision rejecting the complaint must also be dismissed as being manifestly inadmissible owing to a failure to comply with the pre-litigation procedure.
            45. In the light of the foregoing, the action must be dismissed as being manifestly inadmissible.
            Costs 
            46. Under Article 101 of the Rules of Procedure, without prejudice 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, the Tribunal may decide, if equity so requires, 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.
            47. It is apparent from the grounds set out in the present order that the applicant’s action has been unsuccessful. In addition, in its pleadings, ENISA has expressly asked the Tribunal to order the applicant to pay the costs. As the circumstances of the present case do not justify the application of Article 102(1) of the Rules of Procedure, the applicant must be ordered to bear her own costs and to pay the costs incurred by ENISA.
            
            Operative part
            On those grounds,
            THE CIVIL SERVICE TRIBUNAL (Third Chamber)
            hereby orders:
            1. The action is dismissed as manifestly inadmissible. 
            2. ED shall bear her own costs and pay the costs incurred by the European Union Agency for Network and Information Security. 
            Luxembourg, 22 April 2015.