CELEX: 62018CJ0139
Appeal
Civil service
Member of the contract staff
European Centre for Disease Prevention and Control (ECDC)
Appraisal report
2011 Appraisal exercise
Application for annulment of the decision closing the appraisal report

By his appeal, CJ requests the Court to set aside the judgment of the General Court of the European Union of 13 December 2017,
CJ
v
ECDC
(T‑602/16, not published, ‘the judgment under appeal’, EU:T:2017:893), by which the General Court dismissed his action for annulment of the decision of the appeal assessor of the European Centre for Disease Prevention and Control (ECDC) of 21 September 2015, finalising the appellant’s appraisal report for 2011 (‘the decision at issue’).

Legal context
Article 29(1) of Regulation (EC) No 851/2004 of the European Parliament and of the Council of 21 April 2004 establishing a European centre for disease prevention and control (OJ 2004 L 142, p. 1) provides:
‘The staff of the [ECDC] shall be subject to the rules and the regulations applicable to officials and other staff of the [European Union].’
Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:
‘The ability, efficiency and conduct in the service of each official shall be the subject of a periodical report made at least once every two years as provided for by each institution in accordance with Article 110. Each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before lodging a complaint as referred to in Article 90(2).
...
The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant.’
Under Article 15(2) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), ‘the provisions of Article 43 of the Staff Regulations, concerning reports, shall apply by analogy.’
Under Article 87(1) of the CEOS:
‘The first paragraph of Article 43 of the Staff Regulations, concerning reports, shall apply by analogy to contract staff referred to in Article 3a engaged for a period of not less than one year.’
Article 1 of Implementing Rule No 20 on Appraisals, adopted by the Director of the ECDC on 17 April 2009 on the basis of Article 15(2) and Article 87(1) of the CEOS and of Article 43  of the Staff Regulations (‘the Implementing Rule’), provides:
‘1.      In accordance with Article 43 of the Staff Regulations ... and [Article]  15(2) and [Article]  87(1) of the [CEOS]:
An appraisal exercise shall be conducted at the beginning of each year. The reference period of the appraisal exercise runs from 1 January to 31 December of every year. All Temporary and Contract Agents who were in active service for a continuous period of at least one month in the year have to be appraised.
To this end an annual report known as the “appraisal report” shall be drawn up for every staff member ... covering the reporting period.
...
2.      The appraisal system shall be aimed in particular at evaluating the jobholder’s efficiency, competencies and conduct in the service.
...
4.      A report does not have to be drafted for jobholders who left ECDC in the same year or who are going to leave in following year, unless they expressly request one.’
Article 2 of the Implementing Rule provides that:
‘1.      The jobholder is the staff member who is subject of the appraisal.
2.      The reporting officer shall conduct the appraisal. After a dialogue has taken place in accordance with Article 8(4) the reporting officer shall draw up a draft report.
3.      The countersigning officer shall ensure that the appraisal standards defined by the [ECDC] are consistently applied. In cases of disagreement with the reporting officer, final responsibility for the report shall rest with the countersigning officer.
4.      The appeal assessor shall decide on the follow-up to the opinion delivered by the Joint Committee for Appraisals.
...’
Under Article 3 of that rule:
‘1.      As a general rule, the reporting officer shall be the job holder’s direct line manager (Head of Section or Head of Unit or Director), the countersigning officer shall be the Head of Unit and the appeal assessor shall be the Director of the Centre.
2.      In the case where the direct line manager is the Head of Unit or the Director, the countersigning officer will be the Head of Section for Human Resources.
3.      The Director may delegate the role of appeal assessor to a member of the management team (i.e. the Executive Committee).
If the Director is the reporting officer, the Chairman of the Management Board shall be the appeal assessor.
...’
Article 8 of the Implementing Rule, entitled ‘Appraisal procedure’, provides:
‘...
2.      Once they have been drawn up, the appraisal standards defined in the appraisals guide (calendar/definition of the criteria of appraisal) shall be notified to the staff members of ECDC and shall be applied by the reporting officers and countersigning officers.
3.      The jobholder shall, within five working days of receiving a request to that effect from the reporting officer, produce a self-assessment, which shall be included in the appraisal report.
4.      Within 10 working days of the jobholder submitting a self-assessment, the reporting officer and the jobholder shall engage in a formal dialogue. The dialogue shall constitute one of the reporting officer’s basic management duties.
...
The dialogue shall  cover three aspects: in the light of the self-assessment referred to in paragraph 3, appraising the jobholder’s performance/efficiency during the reporting period, setting objectives for the year following the reporting period and drawing up a training map.
Taking the self-assessment into account, the reporting officer shall, jointly with the jobholder, consider the latter’s efficiency, the competencies he or she has demonstrated and his or her conduct in the service during the reporting period.
...
5.      Immediately after the formal dialogue has been held, the reporting officer shall draw up a draft appraisal report, which shall include appraisals of efficiency, competencies and conduct in the service [and] which is consistent with the indications given during the formal dialogue.
6.      The Director shall, in concertation with the countersigning officers, seek to ensure that, across ECDC and within each function group and grade, the merits of the jobholders concerned have been appraised consistently.
7.      After the concertation referred to in paragraph 6, the reporting officer and the countersigning officer shall finalise each appraisal report and transmit it to the jobholder.
...
8.      The jobholder shall have up to five working days to accept the report without adding any comments, accept it after adding some comments in the appropriate section, or refuse to accept the report, stating in the appropriate section the reasons for requesting that it be reconsidered.
If he or she accepts it, the appraisal report shall be closed. If the jobholder fails to react within the time limit set, he or she shall be deemed to have accepted the report.
9.      If the jobholder refuses to accept the appraisal report, the countersigning officer shall hold a dialogue with him or her within 10 working days. If the jobholder, reporting officer or countersigning officer so requests, the reporting officer shall also take part in the dialogue.
...
No later than five working days after this dialogue the countersigning officer shall either confirm or amend the report. He or she shall transmit the report to the jobholder.
The jobholder shall have up to 10 working days to accept the report without adding any comments, accept it after adding some comments in the appropriate section, or refuse to accept it, stating the reasons in the appropriate section. If he or she accepts it, the appraisal report shall be closed. ...
10.      The jobholder’s reasoned refusal to accept the report shall automatically mean referral of the matter to the “Joint Committee” referred to in Article 9.
...
12.      The time limits referred to in this Article shall be calculated only from the time when the relevant decision has been notified to the person concerned.  ...
13.      The jobholder shall be notified, by email or other means, that the decision rendering the report final has been adopted ...  Such notification shall constitute communication within the meaning of Article 11 and Article 92 of [the] CEOS and Article 25 of the Staff Regulations.’
Under Article 9 of the Implementing Rule, entitled ‘Joint Committee for Appraisals’:
‘...
4.      The Joint Committee may not take the place of the reporting officer or the countersigning officer as regards appraising the jobholder’s performance. It shall verify that reports have been drawn up fairly and objectively, i.e. where possible on a factual basis and in accordance with these general implementing provisions and the appraisals guide. It shall verify in particular that the procedure laid down in Article 8 has been followed. To this end it shall carry out the necessary consultations and shall have at its disposal any working documents which may assist it in carrying out its work.
...
5.       The Joint Committee shall, when appealed to under Article 8(10), deliver an opinion within 10 working days of the matter being referred to it.
...
7.      The opinion of the Joint Committee shall be transmitted to the jobholder, reporting officer, countersigning officer and appeal assessor. The Joint Committee opinion shall, where it has been adopted following a vote, state the majority and minority opinions expressed.
...
The appeal assessor shall confirm or amend the report within five working days. Where the appeal assessor departs from the recommendations contained in the Joint Evaluation Committee’s opinion, he or she shall indicate the reasons for that decision. ...
The report shall then be closed and communicated to the person concerned, the reporting officer, the countersigning officer and the Joint Committee.’
Article 10 of the Implementing Rule states:
‘A complaint may not be submitted under Article 90(2) of the Staff Regulations or a matter be referred to the Civil Service Tribunal [of the European Union] until a report has been closed.’

Background to the dispute
CJ was recruited by the ECDC on 1 January 2010 as a member of the contract staff, for a period of five years, as a ‘legal assistant’ within the ‘Legal and Procurement’ section of the ‘Resource Management and Coordination’ unit of that centre.
On 16 January 2012, the ECDC launched the appraisal procedure for 2011.
On 24 February 2012, the appellant’s contract was terminated, with effect from 1 May 2012. His appraisal procedure was closed without an appraisal report.
On the recommendation of the European Ombudsman, before whom CJ had brought a complaint, the ECDC resumed the appraisal procedure. In the appraisal report drawn up by Ms A., on 12 August 2014, the appellant was given the lowest possible overall grading, namely ‘unacceptable in relation to the level required for agency staff’, that grading being the converse of ‘higher than the level required for the post occupied’, which he had been given in a report dated 15 April 2011, drawn up in respect of the previous reference year.
As CJ objected to that appraisal, the ECDC’s Joint Committee (‘the Joint Committee’) issued an opinion rejecting CJ’s objection  as inadmissible, and subsequently the appeal assessor, by decision of 26 November 2014, confirmed the appraisal report prepared by Ms A.
Following a complaint made by CJ against that decision, the ECDC withdrew it on 5 June 2015. The Joint Committee issued a new opinion on 11 September 2015, rejecting CJ’s objection to the appraisal report as unfounded. By the decision at issue, Mr C., Head of Unit, definitively confirmed CJ’s appraisal report.
Moreover, in a judgment of 29 April 2015,
CJ
v
ECDC
(F‑159/12 and F‑161/12, EU:F:2015:38),  the Civil Service Tribunal, before which CJ brought proceedings, annulled CJ’s dismissal, on the ground that his right to be heard had been infringed. On 2 December 2015, the ECDC adopted a fresh dismissal decision, which took effect retroactively from the date of CJ’s initial dismissal.  The General Court dismissed the action brought by CJ against his second dismissal by judgment of 13 December 2017, (
CJ
v
ECDC
,  T‑692/16, not published, EU:T:2017:894), which is the subject of an appeal before the Court of Justice in Case C‑170/18, pending at the date of delivery of the present judgment.

The action before the General Court and the judgment under appeal
By application lodged at the Registry of the Civil Service Tribunal on 23 June 2016, CJ sought the annulment of the decision at issue.
Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on  31 August 2016.
By the judgment under appeal, the General Court dismissed the action brought before it.

Forms of order sought by the parties before the Court of Justice
By his appeal, CJ claims that the Court should set aside the judgment under appeal, annul the decision at issue and order the ECDC to pay the costs relating to the proceedings at first instance and to the appeal.
The ECDC contends that the appeal should be dismissed and CJ ordered to pay the costs.

The appeal

Admissibility

Arguments of the parties
The ECDC requests the Court to reject as inadmissible the ‘preliminary observations’ set out in the appeal,  by which CJ, first, claims that the appointments of certain staff members  within the ECDC was unlawful and, more generally, that the system of recruitment of members of staff through service contracts used by that centre is unlawful and, secondly, reiterates his willingness, expressed before the General Court, to find an amicable solution to all the disputes between the parties.

Findings of the Court
The ECDC requests the Court to dismiss as inadmissible the ‘preliminary observations’ submitted by CJ in his application. It is apparent, however, from reading the appeal that the considerations set out under that heading include neither heads of claim nor pleas and seek only to explain the general context of the dispute from CJ’s point of view. In those circumstances, the Court cannot find those observations inadmissible, a finding which, moreover, would have no practical effect.
The pleas of partial inadmissibility raised by the ECDC must therefore be rejected.

Substance

Arguments of the parties
In the first place, CJ submits that the General Court misinterpreted Article 3(1) of the Implementing Rule, read in conjunction with Article 3(3) of that rule, in so far as it held, in paragraphs 28 and 29 of the judgment under appeal, that the appeal assessor did not necessarily have to be the Chairman of the ECDC Management Board (‘the Management Board’) when the reporting officer became the Director of the centre after the end of the assessment period, as was the case here.
In the second place, the appellant submits that the appeal assessor must occupy a higher rank than the reporting officer, so that the appeal is considered with the necessary impartiality. The very essence of the term ‘appeal’ implies that  the appeal must be decided on by an entity ranking higher than the reporting officer.
In the third place, the General Court erred in the legal classification of the facts, when it accepted, in paragraph 33 of the judgment under appeal, that it was unlikely, in any event, that the Chairman of the Management Board, even if he had been the appeal assessor, would have decided in favour of the appellant. Such reasoning would render the procedural safeguard of intervention by the appeal assessor pointless.
In the fourth place, the General Court misinterpreted or distorted the wording of the action for annulment before it, in finding, in  paragraph 33, that the appellant had not called into question the appeal assessor’s neutrality towards him. On that point, the appellant submits that he had argued, on the contrary, that the appeal assessor did not have the necessary independence vis-à-vis the reporting officer, since the reporting officer was the appeal assessor’s immediate superior and the person responsible for his own annual appraisal.
The ECDC considers that the Implementing Rule is not intended to govern an ‘exceptional’ situation, such as that at issue, in which the appraisal report was drafted more than two years after the dismissal of  the staff member  and at a time when most of those involved in the evaluation procedure had also left the ECDC. It points out that Ms A. was Director of the ECDC only from 1 May 2015 and had therefore  not yet been entrusted with that role on 12 August 2014 when she conducted the appellant’s appraisal. Ms A. drew up the contested appraisal report in her capacity as the appellant’s line manager for most of 2011. Since the reporting officer  for the appellant was not the Director of the ECDC, the second subparagraph of Article 3(3) of the Implementing Rule was not applicable in the present case.
The ECDC points out that Ms A.  acted as Director of the ECDC when the Joint Committee conducted a fresh review of the appeal lodged by the appellant against his appraisal in September 2015. It is for that reason that the role of appeal assessor  was delegated to a member of the management team, in accordance with Article 3(3) of the Implementing Rule. It cannot be inferred simply from the fact that the reporting officer was the appeal assessor’s line manager that the appeal assessor lacked neutrality with regard to CJ, as alleged. Although CJ submits that the Chairman of the Management Board should have been the appeal assessor, he has not provided any evidence to show that that person would have made a different assessment from those made by the reporting officer and the countersigning officer. Referring to the judgment of 9 October 2013,
Wahlström
v
Frontex
(F‑116/12, EU:F:2013:143, paragraph 40), the ECDC adds that, for a procedural irregularity to result in the annulment of a measure, it is necessary that, had it not been for that irregularity, the outcome might have been different. In the circumstances of the present case, it is unlikely, as the General Court found in paragraph 33 of the judgment under appeal, that the involvement of another appeal assessor would have led to a different decision.

Findings of the Court
The appellant maintains that the interpretation of Article 3(1) and (3) of the Implementing Rule, adopted by the General Court in paragraphs 28 and 29 of the judgment under appeal, is incorrect.
According to Article 3(1) of the Implementing Rule, the role of reporting officer, as a general rule, falls to the direct line manager of the staff member assessed, whereas the role of the appeal assessor is a matter for the Director of the ECDC. Under the first subparagraph of Article 3(3) of the Implementing Rule, the Director may delegate the role of appeal assessor to a member of the management team. The second subparagraph of Article 3(3) of the Implementing Rule states that ‘if the Director is the reporting officer, the Chairman of the Management Board shall be the appeal assessor’.
It is apparent from the indications given in the judgment under appeal that, in the present case, the ECDC applied the abovementioned provisions as follows. CJ’s appraisal was conducted on 12 August 2014 by Ms A., then Head of the Unit in which CJ had worked until the beginning of 2012. In those circumstances, the appeal assessor should have been, pursuant to Article 3(1) of the Implementing Rule, the Director of the ECDC. However, from 1 May 2015, Ms A. was acting as Director of the ECDC. Consequently, when, after the withdrawal of the appeal assessor’s decision of  26 November 2014, the Joint Committee gave its second opinion on 11 September 2015, the Director of the ECDC could not be the appeal assessor for CJ without depriving the appeal procedure of any effectiveness. According to the explanations provided by the ECDC, its Director then made use of the discretion conferred on her by the first subparagraph of Article 3(3) of the Implementing Rule to delegate the role of appeal assessor to a member of the management team  and designated Mr C., Head of Unit, as the appeal assessor for CJ. Consequently, CJ’s appraisal report was closed by an appeal assessor who, on the date on which that decision was taken, was hierarchically subordinate to the reporting officer.
In the judgment under appeal, the General Court expressly ruled that that situation did not contradict either Article 3(1) or Article 3(3) of the Implementing Rule. The appellant submits, however, that, under those provisions, responsibility for the role of appeal assessor, in so far as he was concerned, could not lie with a subordinate of the reporting officer and therefore could be performed in the present case only by the Chairman of the Management Board.
According to the Court’s settled case-law,  in interpreting provisions of EU law, it is necessary to consider not only their wording but also the context in which they occur and the objectives pursued by the rules of which they form part (see, inter alia, judgment of 17 April 2018,
Egenberger
, C‑414/16, EU:C:2018:257, paragraph 44 and the case-law cited).
In the first place, the General Court interpreted the provisions of Article 3 of the Implementing Rule in a way which is not supported by a literal and systemic interpretation of those provisions.
First, the General Court held that the second subparagraph of Article 3(3) of the Implementing Rule, which confers competence on the Chairman of the Management Board, was not applicable in the present case, on the basis of two factors. First, paragraph 29 of the judgment under appeal referred to the extraordinarily long period that elapsed between the start and the end of the appraisal procedure and the changes in the meantime to the ECDC’s staff. However, the General Court does not explain why those circumstances would render the second subparagraph of Article 3(3) of the Implementing Rule inapplicable in the present case. Secondly, according to paragraph 32 of the judgment under appeal, the situation at issue does not correspond to the situation referred to in that provision, since the reporting officer was not the Director of the ECDC when she compiled the appraisal report in August 2014. Nevertheless, whether the appeal assessor had competence must be determined at the date on which he gave his decision, that is, in September 2015, and not at the time when the appraisal was carried out. In September 2015, the reporting officer for CJ held the post of Director of the ECDC, so that the appeal assessor was her  hierarchical subordinate at that date.
Secondly, the General Court rejected, in paragraph 31 of the judgment under appeal, the appellant’s argument that the appeal assessor could not be hierarchically subordinate to the reporting officer. In that regard, it should be noted that Article 3 of the Implementing Rule is intended to make clear, as expressly stated in its title, the ‘rank of the reporting officer, the countersigning officer and the appeal assessor’. Article 3(1) provides that the appeal assessor is to occupy a position above the reporting officer in the ECDC’s management structure. The reporting officer is, ‘as a general rule’, the direct line manager of the staff member assessed, whereas it is for the Director of the ECDC to exercise the role of appeal assessor. The second subparagraph of Article 3(3) of the Implementing Rule, which provides that the Chairman of the Management Board is to be the appeal assessor if the Director of the ECDC is the reporting officer, is the logical consequence of the same general rule.
Thirdly, the General Court held, in paragraph 30 of the judgment under appeal, that the role of appeal assessor had been duly delegated by the Director of the ECDC to a member of the management team, in accordance with the first subparagraph of Article 3(3) of the Implementing Rule. Whilst it is true that that provision does not itself limit the discretion of the Director of the ECDC to delegate the role of appeal assessor, it must be read in the light of the other provisions of Article 3 of the Implementing Rule.
First, there is nothing in the applicable provisions which allows the first subparagraph of Article 3(3) of the Implementing Rule to be understood as derogating from the general rule on the respective hierarchical positions of the reporting officer and the appeal assessor, as set out in Article 3(1) of the Implementing Rule. In particular, whilst Article 3(2) of that rule provides that where the reporting officer is the Director of the ECDC, the countersigning officer is to be the ECDC’s Head of Section for Human Resources, that is a subordinate of the Director, that article does not, however, concern the respective hierarchical positions of the reporting officer and the appeal assessor. Secondly, the second subparagraph of Article 3(3) of Implementing Rule removes from the Director his power to delegate the role of appeal assessor to one of his subordinates, a member of the ECDC’s management team, where he is himself the reporting officer. In those circumstances, as stated above, the role of appeal assessor is to be automatically assigned to the Chairman of the Management Board.
Thus, the literal and systemic interpretation of Article 3(1) and (3) of the Implementing Rule precludes that provision being read as allowing the appeal assessment to be entrusted to a hierarchical subordinate of the reporting officer.
In the second place, any other reading of that provision would also run counter to the objectives pursued by the internal procedure for appeals against the appraisal report, laid down by the Implementing Rule. That administrative remedy can contribute to the objectivity of the appraisal and prevent recourse being had to legal proceedings only  if it offers the staff member who challenges his appraisal report the assurance that a genuine review will be carried out. That presupposes that the appeal assessor is able to assess freely the merits of the staff member’s complaint and, where appropriate, uphold it by calling into question the reporting officer’s appraisal. As the appellant submits, it is doubtful whether that would be the case where an appeal assessor who is hierarchically subordinate to the reporting officer and who is, therefore, himself assessed by the reporting officer conducts the appeal.
Contrary to what was held by the General Court, such a situation  is contrary to the letter and the spirit of Article 3 of the Implementing Rule. Therefore, the General Court erred in law in that regard.
The Director of the ECDC was not therefore empowered, in the present case, to delegate, pursuant to the first subparagraph of Article 3(3) of the Implementing Rule, the role of appeal assessor to one of her subordinates. Since that role could not fall to a subordinate of the Director of the ECDC, it could be performed only by  the Chairman of the Management Board, as laid down by the second subparagraph of Article 3(3) of the Implementing Rule. In holding that that provision did not apply in the present case, the General Court  made a second error of law.
Consequently, the first ground of appeal must be upheld.
The judgment under appeal must therefore be set aside, without it being necessary to examine the other three grounds of appeal.

The action before the General Court
In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, after quashing a decision of the General Court, refer the case back to the General Court for judgment or, where the state of the proceedings so permits, itself give final judgment in the matter.
In the present case, the Court may give final judgment in the case, as the state of the proceedings so permits.
The error of law committed by the General Court in the interpretation of Article 3 of the Implementing Rule also vitiates the decision at issue and was raised before the General Court.
It is true that the ECDC denies that that irregularity is such as to justify annulment of the decision at issue. It argues, referring to the judgments of 29 October 1980,
van Landewyck and Others
v
Commission
(209/78 to 215/78 and 218/78, not published, EU:C:1980:248, paragraph 47), and of 23 April 1986,
Bernardi
v
Parliament
(150/84, EU:C:1986:167, paragraph 28), that a procedural irregularity will lead the annulment of a decision only if it is shown that had it not been for the irregularity the contested decision might have been substantively different.
However, the error of law in question goes to the very competence of the author of the decision at issue and does not therefore constitute a mere procedural irregularity.  It therefore in itself entails the annulment of the decision at issue.

Costs
Under Article 184(2) of the Court’s Rules of Procedure, where an appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since CJ has applied for the ECDC to pay the costs and the ECDC has been unsuccessful, the ECDC must be ordered to bear its own costs and to pay those incurred by CJ relating both to the proceedings at first instance and the appeal.
On those grounds, the Court (First Chamber) hereby:
1.
Sets aside the judgment of the General Court of the European Union of 13 December 2017,
CJ
v
ECDC
(T
‑
602/16, not published, EU:T:2017:893);
2.
Annuls the decision of the appeal assessor of the European Centre for Disease Prevention and Control (ECDC) of 21 September 2015 closing CJ’s appraisal report for 2011;
3.
Orders the European Centre for Disease Prevention and Control to bear its own costs and to pay the costs incurred by CJ relating both to the proceedings at first instance and the appeal.
Bonichot
Toader
Rosas
Bay Larsen

Safjan
Delivered in open court in Luxembourg on 3 April 2019.
A. Calot Escobar

J.-C. Bonichot
Registrar

President of the First Chamber
*
Language of the case: English.