4 March 2022 (*)

(Action for annulment and for damages – Civil service – Members of the temporary staff – Internal reorganisation of the services of eu‑LISA – Filling posts by reassignment– Interests of the service – Correspondence between the grade and the post – No act adversely affecting the applicant – Inadmissibility)

In Case T‑338/20,

KI,

applicant,

European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA),

defendant,

APPLICATION under Article 270 TFEU seeking, first, annulment of the decision of eu‑LISA of 15 July 2019 to reassign the applicant following the internal reorganisation of the services of that agency, and second, compensation for the damage allegedly suffered by the applicant as a result of that decision,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, R. Barents and J. Laitenberger (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

On 1 October 2012, the applicant, KI, was recruited on the basis of Article 2(a) of the Conditions of Employment of Other Servants of the European Union as a member of the temporary staff in grade AD 9, step 1, to the post of Application Administrator within the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu‑LISA), for a renewable term of five years.

On 1 December 2012, the title of the applicant’s post was changed to that of Application Manager.

On 3 March and 15 September 2015, two decisions were adopted concerning, respectively, the establishment of sectors within the organisational structure of eu‑LISA and of the role of Head of Sector, and the establishment of sectors within the Operations Department.

On 16 September 2015, pursuant to the decision of 15 September 2015, the applicant was reassigned to a post as Head of the Border Management Systems (‘BMS’) Sector, while retaining his initial role as Application Manager.

On 5 October 2015, the applicant’s contract was amended in order to reflect that reassignment, with retroactive effect from 16 September 2015.

On 1 October 2017, the applicant’s contract was renewed for an indefinite term.

On 4 October 2018, eu‑LISA adopted a new decision concerning the role of Head of Sector, repealing the previous one.

From the second half of 2018, eu‑LISA prepared a fully fledged reorganisation of its services, dictated by the fact that it had been entrusted with new tasks and leading to an overall transformation of its organisational structure and an increased number of staff.

After expressing his interest in a post as Head of Unit and following the selection process which took place between November 2018 and January 2019, the applicant was included on the reserve list of candidates suitable for that post or for another vacancy within the same function group and grade at eu‑LISA on 15 March 2019.

On 3 May 2019, a Task Force of which the applicant was a member was established and entrusted with ensuring, vis-à-vis the staff, transparency of the reorganisation to be carried out, and with participating in the preparation of the descriptions of the new duties and functions of the sectors.

On 24 May 2019, an appraisal meeting was held between the applicant and his line manager, during which it was proposed that the applicant be reassigned to the new post of Head of the Vendor & Contract Management (‘VCM’) Sector.

On 6 June 2019, a meeting between the applicant, the Head of the Operations Department, the Head of the Human Resources Unit and the Executive Director of eu‑LISA took place, during which the positions of Head of the VCM Sector, Senior Officer in the Product Management Sector and Senior Officer in the Programme and Project Management Sector were discussed with a view to the applicant’s reassignment, without the applicant, however, expressing a decisive preference for any of the posts mentioned.

On 11 June 2019, the applicant was placed on sick leave.

On 25 June 2019, the Executive Director of eu‑LISA adopted a decision to reorganise the general organisational structure of eu‑LISA and informed all the staff of the changes put in place as part of that reorganisation.

In the Operations Department, those changes led to the creation of five units and 15 sectors and the disappearance, as such, of the BMS sector.

By decision of 15 July 2019 of the Executive Director of eu‑LISA (‘the contested decision’), the applicant was reassigned to the post of Senior Information Technology Officer – Architecture in the Architecture Sector within the Planning and Standards Unit as from 1 September 2019. He was informed of this by email on 17 July 2019.

On 17 July 2019, the post of Head of the VCM Sector initially proposed to the applicant was filled by a former member of staff of eu‑LISA.

By email of 21 July 2019, the applicant informed his line manager that he favoured a post as Head of Sector.

By email of 27 August 2019, the applicant expressed his disagreement with the reassignment and requested that he be contacted again by 30 August 2019 at the latest so that a solution more suited to his grade could be found.

On 29 August 2019, the Executive Director of eu‑LISA adopted a decision confirming the decision of 25 June 2019 concerning the agency’s new general organisational structure, annexing to it the list of agency staff assignments per organisational entity.

The new organisational structure came into force on 1 September 2019.

On 25 September 2019, the Executive Director informed the applicant, in response to his email of 27 August 2019, that the decision to reassign him was being maintained.

On 17 October 2019, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the contested decision.

On 20 December 2019, the applicant submitted a request for recognition of an occupational disease, pursuant to Article 73 of the Staff Regulations, to the European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO). By note of 7 January 2020, the applicant was informed that it was necessary for the administration to carry out a thorough study of his request.

On 17 February 2020, the complaint was rejected by decision of the Executive Director of eu‑LISA.

Procedure and forms of order sought

By application lodged at the Court Registry on 27 May 2020, the applicant brought the present action.

By decision of 14 October 2021 of the General Court (Eighth Chamber), the Judge-Rapporteur was asked to examine the possibility of resolving the dispute by means of an amicable settlement, in accordance with Article 50a of the Statute of the Court of Justice of the European Union and Article 125a of the Rules of Procedure of the General Court. To that end, a letter was sent to the parties.

Following two informal meetings held by videoconference on 3 and 9 December 2021, respectively, the parties submitted, in essence, that the conditions for the success of such a procedure had ultimately not been met. On 15 December 2021, the General Court noted that the attempt to reach an amicable settlement had been unsuccessful.

The applicant claims that the General Court should:

–annul the contested decision;

–‘as far as necessary’, annul the decision of 17 February 2020 by which the Executive Director of eu‑LISA rejected his complaint;

–order eu‑LISA to compensate him in the amount of EUR 10 000 for the non-material damage allegedly suffered by him;

–order eu‑LISA to pay the costs.

eu‑LISA contends that the Court should:

–dismiss the action as inadmissible or, in the alternative, as unfounded;

–order the applicant to pay the costs.

Law

Without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure, eu‑LISA claims, primarily, that the action is inadmissible on the ground that the contested decision is not an act adversely affecting the applicant. In that regard, eu‑LISA states that the reassignment at issue complies with the principle of equivalence of posts and that it does not affect the applicant’s non-material interests, the right to have a post equivalent to his grade, his career prospects or his health.

The applicant challenges that argument. In that regard, he submits, in essence, that the contested decision affects his non-material interests and career prospects and that it is contrary to the interests of the service and to the principle of equivalence between the post and the grade, since eu‑LISA has not demonstrated that a post as Senior Officer such as the one to which he was reassigned would necessarily be advertised at grade AD 9. Accordingly, the applicant claims that the contested decision does indeed constitute an act adversely affecting him.

Under Article 129 of the Rules of Procedure, the General Court may at any time of its own motion, on a proposal from the Judge-Rapporteur and after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.

In the present case, since the Court considers that it has sufficient information from the documents in the file and the explanations provided by the parties during the written part of the procedure, it has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.

First of all, it must be noted that the present action, which originates in the relationship of employment between the applicant and eu‑LISA, must follow the specific procedure provided for in Articles 90 and 91 of the Staff Regulations and Article 270 TFEU. In the present case, since the applicant, prior to bringing the present action, lodged, with the Executive Director of eu‑LISA, in the latter’s capacity as authority empowered to conclude contracts of employment, a complaint against the contested decision, he thus placed himself within the framework of the remedies established by Articles 90 and 91 of the Staff Regulations and Article 270 TFEU (see, to that effect, order of 17 May 2006, Marcuccio v Commission, T‑241/03, EU:T:2006:129, paragraph 34 and the case-law cited).

Next, it must be borne in mind that, in order for any action for annulment brought by an official or other servant against the institution or agency by which he or she is or was employed to be admissible, it is a necessary condition that there be an act adversely affecting him or her within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations. Thus, it is for the Court to ascertain whether the reassignment decision at issue is an act adversely affecting the applicant and whether it is, consequently, open to challenge in the context of the present action for annulment.

In that regard, it should be noted that, according to settled case-law, an official or other servant is adversely affected by an act only where it is such as to have a direct effect on his or her position in law and thus goes beyond measures relating purely to the internal organisation of departments, which do not adversely affect the position of the official or other servant concerned under the Staff Regulations or which do not infringe the principle of correspondence between the grade of the official or other servant and the post to which he or she is assigned. Such an act falls within the discretionary power which each administration has to allocate duties among the members of its staff. Nevertheless, certain acts, even though they do not affect the material interests or the rank of an official or other servant, may be regarded as acts adversely affecting him or her if they adversely affect the non-material interests and the future prospects of the person concerned (see, to that effect, judgments of 16 April 2002, Fronia v Commission, T‑51/01, EU:T:2002:99, paragraph 32 and the case-law cited, and of 2 March 2004, Michael v Commission, T‑234/02, EU:T:2004:58, paragraph 22 and the case-law cited).

As regards the rule that the post should correspond to the grade, set out in particular in Article 7 of the Staff Regulations, it must be borne in mind that, in the event of a change in the duties assigned to an official or other servant, that rule calls for a comparison between the duties and the grade of the official or other servant following his or her reassignment, not a comparison between his or her present and previous duties. Accordingly, the rule that the post should correspond to the grade does not preclude a decision from entailing the assignment of new duties which, although they are different from those previously carried out and are perceived by the person concerned as bringing about a reduction of his or her responsibilities, are nonetheless consistent with a post corresponding to his or her grade. Thus, an effective diminution of the responsibilities of an official or other servant infringes the rule that the post to which an official or other servant is assigned should correspond to his or her grade only if, taken together, his or her new duties clearly fall short of those corresponding to his or her grade and post, taking account of their character, importance and scope (see, to that effect, judgment of 24 June 1993, Seghers v Council, T‑69/92, EU:T:1993:51, paragraph 30 and the case-law cited). Lastly, while the Staff Regulations aim to guarantee officials and other servants the grade obtained and also a post corresponding to that grade, they do not grant them any right to a specific post, but, on the contrary, leave to the appointing authority or the authority empowered to conclude contracts of employment the power to assign officials and other servants, in the interest of the service, to the various posts corresponding to their respective grades. Furthermore, while it cannot be denied that the administration has every interest in assigning its officials and other servants to posts which accord with their particular aptitudes and their personal preferences, the interested parties cannot be recognised as having a right to perform or to retain specific duties or to refuse any other duties relating to their type of post (see order of 26 March 2020, AF v FRA, T‑31/19, not published, EU:T:2020:133, paragraph 23 and the case-law cited).

Furthermore, only particular circumstances which provided the grounds for measures of internal organisation may render an action against those measures admissible. That may be the case where the decision in question is in the nature of a covert penalty, where it discloses an intention to discriminate against the official concerned or where it is vitiated by a misuse of powers (see, to that effect, judgments of 24 June 1993, Seghers v Council, T‑69/92, EU:T:1993:51, paragraph 38 and the case-law cited, and of 2 March 2004, Michael v Commission, T‑234/02, EU:T:2004:58, paragraph 23 and the case-law cited).

In the present case, it is apparent from the file that the applicant’s transfer followed a reorganisation of eu‑LISA’s services and not a vacancy. Consequently, the applicant’s transfer is not the result of a transfer decision, in the strict sense of the term, but of a reassignment decision. In that connection, it must be noted that, having regard to the broad discretion which is accorded to the institutions, bodies and agencies of the European Union in organising their departments according to the tasks entrusted to them and in assigning their staff accordingly, a reassignment decision, even if it causes inconvenience for the officials or other servants concerned, does not constitute an abnormal and unforeseeable event in their careers.

41Furthermore, it is common ground that the contested decision did not affect the applicant’s position under the Staff Regulations. As is evident from the material in the file, that decision did not entail any change in the grade or the substantive rights which the Staff Regulations confer on the applicant, a fact which, moreover, he does not dispute. In that regard, the contested decision states that it has ‘no impact on [the] contract of employment effective from 1 October 2012, namely on its duration, the place of employment, current function group, grade, step and seniority in that grade and step’.

42Furthermore, the applicant’s claim that his responsibilities as Head of Sector formed an integral part of his post, in so far as they had been added to his contract of employment by amendment of 5 October 2015, is not capable of calling into question the finding in paragraph 41 above. First, the existence of such a term in the contract does not, in itself, preclude the exercise by eu‑LISA of its discretion to implement the measures entailed by the public interest obligations deriving from the particular responsibilities entrusted to it. That agency may, for instance, be compelled, in order to meet the requirements of the service, and in particular to enable it to adapt to new needs, to take unilateral decisions or measures liable to alter, inter alia, the implementing conditions of employment contracts (see, to that effect, judgment of 14 October 2004, Pflugradt v ECB, C‑409/02 P, EU:C:2004:625, paragraph 36). Second, it is apparent from the decision of the Executive Director of eu‑LISA of 4 October 2018 on the role of Head of Sector within the agency that heads of sector ‘are not compared to middle management’ and that their assignment to that type of post is ‘temporary in nature’, with the result that the applicant did not enjoy any acquired and definitive right to maintain such responsibilities. Furthermore, it is apparent also from Article 3(4) of the decision of the Executive Director of eu‑LISA of 4 October 2018 referred to above that assignment to a post as Head of Sector may be ‘revoked … at any time for reasons that should be justified’. In that regard, and contrary to what the applicant claims, it must be noted that the contested decision sets out the reasons why it was adopted, and that that decision is justified by ‘the implementation of the new organisational structure of eu‑LISA’.

43As regards the rule of correspondence between the grade and the post, it is apparent from the contested decision that the applicant was reassigned to a post as Senior Information Technology Officer, in the Architecture Sector of the Planning and Standards Unit of eu‑LISA, while keeping his AD 9 grade. Consequently, correspondence between the grade and the post was complied with, in so far as, as is apparent from the descriptive table of the types of posts set out in point A.1 of Annex I to the Staff Regulations, grade AD 9 corresponds, inter alia, to the post of Administrator. The duties of Senior Information Technology Officer, as a whole and as described in the annex to the contested decision, cannot be regarded as falling short of those corresponding to grade AD 9, and thus even less so as falling far short of that grade. In addition, the mere fact that the tasks entrusted to the applicant were changed is insufficient to support the conclusion that the reassignment at issue is such as to affect him adversely, since the changed tasks still correspond to his grade.

44As regards the argument, put forward by the applicant, that posts as Senior Officer, such as that to which he was reassigned, are generally assigned to staff in grade AD 7, it is sufficient to note, in order to reject that argument, that the same or similar functions may be performed by persons in different grades, as is apparent from Annex I to the Staff Regulations, which provides for that possibility for most of the functions listed therein. In that regard, it is apparent, for example, from the descriptive table of the types of posts set out in point A.1 of Annex I to the Staff Regulations, that a post as Administrator corresponds to grades AD 5 to AD 12. Furthermore, it is apparent from the decision of the Executive Director of eu‑LISA of 2 July 2019 describing the types of posts in that agency that a post as Senior Officer, such as the one occupied by the applicant, does not correspond only to grade AD 7 but to grades AD 7 and upwards.

45Furthermore, it is apparent from the first sentence of Article 3(2) of the decision of the Executive Director of eu‑LISA of 4 October 2018 on the role of Head of Sector within the agency that any official or other servant in the grade of Administrator, that is to say, in any grade starting from AD 5, is eligible for the post of Head of Sector. Moreover, the second sentence of Article 3(2) of that decision introduces the possibility of exceptions to that rule, so that, in theory, posts of Head of Sector could even be filled by officials or other servants in the AST function group.

46Thus, the fact that the duties of Senior Officer, similar to those conferred on the applicant, are generally carried out by officials or other servants in function group AD, starting from grade AD 7, that is to say, two grades below his own, does not make it possible to establish, as such, that his new duties fall short of those corresponding to grade AD 9, and even less so that they fall far short of that grade.

47It follows that the contested decision does not affect the material interests and rank of the applicant, within the meaning of the case-law cited in paragraph 37 above, and that it amounts to a measure relating purely to the internal organisation of a service.

48However, it is also necessary to ascertain whether or not that decision adversely affects the applicant’s non-material interests or future prospects.

49In that regard, the applicant claims, in essence, in an abstract manner, that the responsibilities of Head of Sector constitute an indispensable step for the purpose of attaining managerial positions, so that, following the reassignment at issue, his career development prospects were significantly harmed. The applicant also submits, without explaining the link with the reassignment measure at issue, that he bought a house and organised his family according to his employment situation and career prospects.

50In the present case, in the absence of a change in his type of post and an effect on his material interests and rank, the view must be taken that the non-material interest that the applicant might have in preferring the performance of certain tasks to that of others was not adversely affected.

51Furthermore, it must be borne in mind that a member of the temporary staff has no subjective right to be assigned to a particular post, but only a right to a post corresponding to his or her grade. Thus, the contested decision did not infringe a right which the applicant could regard as acquired. Consequently, in order for harm to the career to be established, it is for the applicant to demonstrate that the contested decision necessarily leads to a deterioration of his or her career prospects (see, to that effect, order of 19 April 2012, Kimman v Commission, F‑16/12 R, EU:F:2012:52, paragraphs 33 and 34).

52Moreover, there is nothing which makes it possible to establish that the applicant’s career prospects were changed or affected by the mere fact that he was called on to carry out new tasks. The tasks assigned to an official or other servant necessarily vary in the course of his or her career, without such variation being liable to be regarded as a deterioration of the career prospects of that person. Furthermore, the mere fact that the applicant’s new assignment is, according to him, a ‘lower-level’ one is not sufficient to establish that his career prospects have deteriorated. Moreover, eu‑LISA rightly states in that regard that the reassignment at issue is without prejudice to the applicant’s future performance, internal reclassification or another reassignment, including to another post as Head of Sector.

53It follows that the view must be taken that the applicant has not established that the reassignment at issue adversely affected his non-material interests or his future prospects.

54Lastly, and although the applicant claims, in general terms, that the reassignment measure at issue should be understood as a ‘downgrading’, it must, however, be considered that he has not shown that the contested decision was adopted on the ground of particular circumstances, within the meaning of the case-law cited in paragraph 39 above. The applicant has not adduced the slightest evidence that that decision constituted a covert penalty, that it is vitiated by a misuse of powers or that it is discriminatory.

55Therefore, it must be considered that the contested decision constitutes a mere management decision which does not immediately and directly affect the applicant’s interests by bringing about a distinct change in his legal position.

56That analysis is not called into question by the applicant’s argument that the contested decision is an act adversely affecting him in so far as it is based on the decision of 25 June 2019 of the Executive Director of eu‑LISA reorganising that agency’s organisational structure.

57In that regard, the applicant refers to the judgment of 25 July 2006, Fries Guggenheim v Cedefop (T‑373/04, EU:T:2006:224). Relying on that judgment, the applicant submits that, in the context of a reorganisation such as that carried out at eu‑LISA, that agency should have provided for an objective, fair and transparent selection procedure, allowing the merits of the candidates to be examined and compared in order to ensure that the best candidates were selected for the posts available in the new organisational structure. In the absence of such a procedure, the applicant submits that the contested decision adversely affects him.

58However, the subject matter of the dispute in the present case and of that in the case which gave rise to the judgment of 25 July 2006, Fries Guggenheim v Cedefop (T‑373/04, EU:T:2006:224) are different. In the present case, the applicant is challenging the decision reassigning him to the post of Senior Information Technology Officer – Architecture, following the disappearance, in the context of the reorganisation of eu‑LISA, of the post of Head of the BMS Sector, to which he had been assigned until then. In the case that gave rise to the judgment of 25 July 2006, Fries Guggenheim v Cedefop (T‑373/04, EU:T:2006:224), the applicant had contested the decisions of the director of Cedefop, first, providing the grade of certain posts – Heads of Area – at career level A 5/A 4 in the version of the Staff Regulations applicable at the time (grades AD 11/AD 12 in the version of the Staff Regulations currently applicable) and second, filling the posts in question. It must be noted that the decision contested in the present dispute cannot be equated with the decisions contested in the case which gave rise to the judgment of 25 July 2006, Fries Guggenheim v Cedefop (T‑373/04, EU:T:2006:224). It was in relation to the filling of the newly created positions of Head of Area, constituting a decentralisation of the power of the director and, as such, coming under middle management, that the Court held that the reassignment of several members of staff for the purpose of creating an administrative degree with significant responsibilities was not the most appropriate or usual instrument for carrying out a general reorganisation of the service (judgment of 25 July 2006, Fries Guggenheim v Cedefop, T‑373/04, EU:T:2006:224, paragraph 78). In addition, while it is true that that judgment laid down a requirement relating to the establishment of specific procedures such as those which apply to transfer or promotion decisions in respect of decisions filling the posts of Head of Area, it does not follow from that judgment that, in the context of a reorganisation, even a far-reaching one, any reassignment, such as a reassignment to a non-managerial post such as that at issue in the present case, must first be the subject of a selection procedure. In the present case, the subject matter of the dispute is confined to the reassignment of the applicant to an Administrator’s function in his career and grade.

59In the circumstances of the present case, reliance on the judgment of 25 July 2006, Fries Guggenheim v Cedefop (T‑373/04, EU:T:2006:224), does not support a conclusion that the contested decision is an act adversely affecting the applicant in so far as it is based on the decision of 25 June 2019 of the Executive Director of eu-LISA reorganising that agency’s organisational structure.

60Moreover, even supposing that the applicant’s arguments are to be understood as seeking to assert, in essence, that the contested decision is an act adversely affecting him in so far as it is based on the decision of 25 June 2019 of the Executive Director of eu‑LISA reorganising that agency’s organisational structure, which is itself alleged to be unlawful, it is sufficient to note, in order to reject them, that such arguments would amount to pleading the illegality of an act of general application, pursuant to Article 277 TFEU. It is apparent in that regard from settled case-law that the inadmissibility of the main action leads to the inadmissibility of the plea of illegality based on Article 277 TFEU (see judgment of 5 March 2020, Credito Fondiario v SRB, C‑69/19 P, EU:C:2020:178, paragraph 64 and the case-law cited). Consequently, if the present action is declared inadmissible on account of there being no act adversely affecting the applicant, any plea of illegality directed against the decision on the basis of which the contested decision was allegedly adopted must also, in any event, be declared inadmissible. In any event, any illegality which might vitiate the decision taken on 25 June 2019 by the Executive Director of eu‑LISA is not such as to confer on the contested decision the character of an act adversely affecting the applicant.

61It follows that the claims for annulment must be rejected as inadmissible.

62Lastly, it must be added that, in accordance with settled case-law, claims for damages, submitted together with inadmissible claims for annulment, are themselves inadmissible where they are closely linked to those claims for annulment (see, to that effect, order of 25 March 2020, Lucaccioni v Commission, T‑507/19, not published, EU:T:2020:118, paragraphs 51 and 52 and the case-law cited). The applicant has submitted that his claim for damages should be upheld on the sole ground that the reassignment at issue is detrimental to his career, his career prospects and his dignity and health. The applicant’s claims for annulment and for damages are therefore closely linked. Since the Court has held that the applicant’s claim for annulment must be rejected as inadmissible, his claims for damages must, consequently, also be rejected as inadmissible.

63In the light of all of the foregoing considerations, the action must be dismissed in its entirety as inadmissible.

Costs

64Under 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.

65Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by eu‑LISA.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

2.KI shall pay the costs.

Luxembourg, 4 March 2022.

Registrar

President

—

Language of the case: English.