CELEX: 62014TJ0683
Appeal
Civil service
Officials
Appraisal report
2010-2011 Appraisal period
Distortion
Obligation to state reasons
Manifest error of assessment

By his appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, Mr Rhys Morgan, seeks to have set aside the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 8 July 2014 in
Morgan
v
OHIM
(F‑26/13, ECR-SC) (‘the judgment under appeal’), by which the Tribunal dismissed his action for annulment of his appraisal report covering the period from 1 October 2010 to 30 September 2011, and an order that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pay him at least EUR 500 by way of damages.
Background to the dispute
The background to the dispute was set out in paragraphs 5 to 37 of the judgment under appeal, as follows:
‘
1.

The tasks of the applicant and the appraisal system within OHIM
The applicant is an official in the Administrator function group (AD), at Grade AD 10. He took up his duties with OHIM in 1998. Until November 2009, he occupied the post of legal assistant with the Second Board of Appeal of OHIM. Since then, he has been employed as an intellectual property administrator in Service 2 of the “Operations” department and is in charge of decisions on Community trade mark applications. His line manager, head of Service 2 and his reporting officer, is Ms A. The Director of the “Operations” department and the applicant’s countersigning officer is Mr B.
In accordance with OHIM’s practice of management by objectives, in respect of each appraisal exercise, each member of staff is assigned five objectives. Objective 1, which concerns all OHIM staff, defines the expected contribution from each member of staff to the overall objective of OHIM; objective 2 concerns all the staff in a given OHIM department; objectives 3, 4 and 5 ... are individual and concern, inter alia, the performance expected from the member of staff in terms of quantity, quality, observance of time-limits and professional development.
The applicant is a member of the Opposition Divisions within the meaning of Article 132 of Regulation No 207/2009. Every member of an Opposition Division must draft a certain number of decisions as Rapporteur and must re-read and co-sign the decisions of his colleagues.
Objective 3 for an administrator in the “Operations” department is the adoption of decisions for a total of 115 points per year. That system of points is based on a classification of decisions according to their level of difficulty.
Within the “Operations” department, the output of the administrators adopting decisions is reviewed each month in relation to the quantitative objectives by means of statistics and reports.
…
3.

The appraisal period from 1 October 2010 to 30 September 2011
In respect of the appraisal period from 1 October 2010 to 30 September 2011, the applicant was assigned, in terms of the adoption of decisions, an amended annual quantitative objective of 105.4 points out of the 115 points normally required, in order to take account of the fact that, for two months of the appraisal period, he had to devote half of his working time to the “Quality” service of the “Operations” department in order to contribute to the updating of part of the OHIM Quality Management System Manual.
On 31 March 2011, the applicant was warned by his line managers that his output was considered to be unsatisfactory. Following a meeting, he received monthly production requests, indicating the number of points which he was expected to achieve each month, in respect of the period from 1 April 2011 to October 2011. Those requests stated that: “[t]he purpose of this production request is to set individual targets on a monthly basis. The request is a result of the fact that [the applicant’s] performance over the last [few] years has not been satisfactory.”
On 9 June 2011, the reporting officer sent the applicant an email containing the following sentence: “[Mr B.] told me to congratulate you for having changed the path towards the good direction (his words).”
On 2 September 2011, the reporting officer sent an email stating, inter alia: “You have been the top producer (honestly!) of the service the last 3-4 months.”
4.

The appraisal procedure
On 20 October 2011, the applicant was invited to the formal appraisal interview. During that interview, Ms A, his reporting officer, stated that she was satisfied with the applicant’s work and informed him that she would propose level 5 as a general assessment.
On 25 October 2011, pursuant to Article 17 and 17a of the Staff Regulations, the applicant informed OHIM of his intention to publish an article by sending an email to this effect to the President of OHIM and to Ms A attaching that article, entitled “Ensuring Greater Legal Certainty in OHIM Decision-Taking by Abandoning Legal Formalism.” That article was published in
The Journal of Intellectual Property Law & Practice
.
According to the application: “[t]he article is a critical analysis of OHIM’s legal practice in relation, in particular, to the taking of opposition decisions. OHIM’s legal practice in this regard was largely established while Mr [X] … was President of OHIM between 2000 and 2010. The article also critically examines the human resource policies executed during Mr [Y’s] tenure as President, some of which have since been ruled unlawful by the Civil Service Tribunal … Mr [B] was [h]ead of Human Resources at the time these policies were implemented, and is now [h]ead of [the] ‘Operations’ [department].”
On 15 November 2011, the applicant received an email from Ms A which contained the following sentence: “I would also like to talk with you about your article due to feedback from [Mr B].”
Following that email, the applicant met, on 17 November 2011, with Ms A, then with Mr B.
On 9 January 2012, the applicant received his appraisal report in respect of the period from 1 October 2010 to 30 September 2011 (“the contested appraisal report”).
5.

The contested appraisal report
The contested appraisal report starts with the “Objectives” section. Those objectives concern the quantity of decisions, the observance of time-limits, the quality of decisions (individual objectives), teamwork within OHIM (an objective common to all staff) and “quality, simplification and excellence” (an objective common to the staff in the “Operations” department). One column in the section is dedicated to the reporting officer’s comments on the objectives. The second section, entitled “Competencies”, covers the following competencies: “[a]nalysis, problem solving and judgment”, “[c]ommunication”, “[m]anagement and leadership”, “[p]rofessional knowledge and development”, “[q]uality and results orientation”, “[s]elf management” and “[w]orking with others and interpersonal relations”. In respect of each of those competencies, the appraisal report mentions the “[r]equired level”, which corresponds to the level which OHIM expects of the holder of the post and the “[l]evel” which is that actually attained by the holder according to the reporting officer’s appraisal. In that regard, the reporting officer has a choice of [the] five [following] levels: [K (Basic level), P (Proficient level), M (Master level), E (Expert level) and O (a learning phase for acquiring this competency)]. One column in the section is dedicated to the reporting officer’s comments on the objectives.
The following part of the appraisal report is headed “Conduct in the service — [Reporting Officer’s] comments”. The contested appraisal report also contains, inter alia, the sections “General assessment”, “Reporting officer’s assessment” and “Countersigning [o]fficer’s comments”.
In respect of the general assessment, the reporting officer has a choice of 7 levels. Levels 5 and 6 correspond to the following descriptions:
“[5]
The efficiency, the abilities and the aspects of conduct appraised are acceptable despite some weak points.
[6]
The efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied. Improvements are needed.”
Under the objective concerning the quantity of decisions, the comments of the reporting officer in the contested appraisal report are worded as follows:
“Volume: Adjusted target: 105.4 p[oints] (50% … work [in the ‘Quality’ service] for 2 [months]). [The applicant] did 87.6 p[oints] which corresponds to 83% of [the] target.
Timeliness: 95.62% on time, which is above [the] service/dep[artment] average (94%).
Quality: [the applicant] can improve the quality of his decisions vis-a-vis [OHIM] practice and should concentrate on this issue during the next appraisal period.”
In the “Competencies” section, it is stated in respect of the “[q]uality and results orientation” competency that:
“Following feedback from [the applicant’s] co-signers his first drafts were not always aligned with the [OHIM Quality Management System M]anual. His output has room for improvement. He did 87.6 points which is 17% below the expected target.”
The required level is “M”. The applicant obtained “K”.
In respect of the “[s]elf management” competency:
“[The applicant] needs to be more committed to the work and to his own development. He needs to find a good working method in order to have a higher output and must avoid working in spurts and achieve a more even pace.”
The required level is “P”. The applicant obtained “K”.
In respect of the “[w]orking with others and interpersonal relations” competency:
“… [The applicant] tends to leave a glut of work to the last week of the month which meant that a lot of strain was put on his co-signers who were asked to sign a very large amount of decisions at a time when they too had targets to consider.”
The required level is “M”. The applicant obtained “P”.
In the “Conduct in the service — [Reporting Officer’s] comments” section, the contested appraisal report contains the following comments:
“Being a native English speaker, [the applicant] was co-signing and proofreading the opposition decisions of his colleagues. This part of his work was much appreciated. In March 2011 [the applicant’s] underperformance was raised by his managers. It was only from that moment on that [the applicant] started to perform as expected.”
In the “General assessment” section, the reporting officer selected the option corresponding to level 6, which states as follows:
“The efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied. Improvements are needed.”
In the “Reporting officer’s assessment” section, the contested appraisal report contains the following assessment:
“[The applicant] undoubtedly put in a lot of effort in the last half of the year to reach his target. However, the positive aspect of this achievement must be weighed against the fact that [the applicant’s] very low performance earlier in the year meant that he had left himself a lot to catch up on. This low performance was noted by [his line managers] who warned [the applicant] that he was underperforming and special arrangements, reserved to underperforming examiners, were put in place in April. From then on [the applicant] performed according to expectations. Since the standard of the department establishes that [it may be considered that a [jobholder] ‘does not correspond to the level’ where he has met only 80% of his objectives] and since it is clear for the [reporting officer] that the global performance of [the applicant] during the appraisal period [cannot] be evaluated as satisfactory, the first level of unsatisfactory assessment [was] selected.”
6.

The conciliation meeting, the action before the Joint Evaluation and Promotion Committee and the complaint
Having received the contested appraisal report, the applicant requested a conciliation meeting with the reporting officer and the countersigning officer. The applicant was requested by his head of department and countersigning officer to provide a brief overview of the questions which he wished to address. As a result of that request, the applicant sent his reporting officer and countersigning officer the following email on 25 January 2012:
“In short, I had an appraisal meeting in October with my [l]ine [m]anager which started with the words ‘… I have nothing negative to say, it is all positive’. The interview was indeed positive. Three months later I received an [a]ppraisal [r]eport which marked my performance as needing improvement. A number of negative comments were contained in the [r]eport, including the allegation that the quality of my decisions did not meet expectations — an allegation I challenge. I would like to know how we got from the one situation (the interview) to the other (the [r]eport). My [l]ine [m]anager informs me that she initially wrote a more positive report in which I was adjudged to have met the level required, but that it was changed at the insistence of my [h]ead of [d]epartment. I would like the negative comments removed from my report since they are incorrect and for my performance to be marked as meeting requirements.”
The conciliation meeting took place on 25 January 2012.
On 13 February 2012, the applicant brought an action before the Joint Evaluation and Promotion Committee (“the JEPC”) concerning the general assessment contained in the contested appraisal report. On 20 February 2012, the reporting officer submitted observations. On 22 February 2012, the applicant sent his response to the reporting officer’s comments to the JEPC.
By letter of 29 March 2012, the JEPC requested additional information from the reporting officer, in particular “details regarding production (quantity and quality wise), especially how staff with comparable production [to the applicant] were assessed …”. The reporting officer replied on 16 April 2012. On 19 April 2012, the applicant replied to the reporting officer’s response.
On 15 May 2012, the JEPC issued its unanimous findings on the applicant’s action in the following terms:
“In accordance with the information given by the [r]eporting [o]fficer, the jobholder was expected to co-sign double the decisions he was expected to [draft]. Since the jobholder [drafted] 65 decisions, which corresponds to 83% of the decisions he was expected to [draft], he should have co-signed 156 decisions. Hence he fulfilled this target. Furthermore, the jobholder [stated] that all these decisions as well as numerous other decisions were [proofread] by him. Regarding timeliness, the jobholder performed slightly above the target. Considering all the facts, it must be held that the performance of the jobholder is — as far [as] it concerns the quantity of decisions taken — below the target, but not as low as to qualify his output as ‘[does] not correspond to the level required’. In accordance with the information given by the [r]eporting [o]fficer, such assessment is only given if the performance [is] 20% [or more] below target. In all other areas, the jobholder performed in accordance with the targets or above.
Even after being invited to do so, the [r]eporting [o]fficer (‘Ms [A]’) could not specify at all why the quality of decisions was below the target set. …
The general assessment has to take into consideration all competencies and objectives. Consequently, the JEPC finds the [action] well founded and recommends to raise the [general] assessment to ‘acceptable despite some weak points’.”
On 22 May 2012, the reporting officer and the countersigning officer sent the applicant a note informing him that they did not intend to raise his general assessment. The note also stated: “The reporting officer … has decided to follow the JEPC recommendations as regards the quality. Therefore all eventual criticism on the quality of [the applicant’s] work has been removed from the report … .”
On 21 August 2012, the applicant filed a complaint against the contested appraisal report. On 17 December 2012, the applicant received the decision of 12 December 2012 rejecting the complaint.’
Proceedings at first instance and judgment under appeal
By application lodged at the Registry of the Civil Service Tribunal on 27 March 2013, the appellant brought an action for annulment of his appraisal report covering the period from 1 October 2010 to 30 September 2011 (‘the contested appraisal report’), and an order that OHIM pay him at least EUR 500 by way of damages.
In support of his action, the appellant relied on nine pleas in law, alleging, first, infringement of the principle of sound administration, secondly, infringement of essential procedural requirements, thirdly, several manifest errors of assessment, fourthly, infringement of the general principles laid down in the Reporting Officer’s Practical Dossier in force at OHIM, fifthly, infringement of the duty to have regard for the welfare of officials, sixthly, infringement of the principle of protection of legitimate expectations, seventhly, infringement of the principle of equal treatment, eighthly, infringement of the obligation to state reasons, and ninthly, misuse of powers.
The Tribunal first observed, in paragraph 41 of the judgment under appeal, that, by the first three pleas in law, the appellant, first, disputed the content of the contested appraisal report (see paragraphs 6 to 8 below) and, secondly, criticised breaches of procedure which he alleged vitiated the appraisal procedure (see paragraph 9 below). After rejecting those pleas in law, the Tribunal then rejected all the other pleas in law (see paragraphs 10 to 13 below).
The content of the contested appraisal report
The appellant argued before the Tribunal that there was a considerable discrepancy between the appraisal interview and the content of the contested appraisal report. Furthermore, he submitted that by achieving 83% of his productivity objectives, exceeding what was expected of him in terms of co-signing and proofreading, performing better than average on timeliness and being at least within the average so far as concerns the quality of decisions drafted by him, he was eligible to receive at least level 5 as a general assessment, according to the objectives and criteria established at the beginning of the appraisal period. He claimed that, in order to justify its lower general assessment, OHIM retrospectively introduced new appraisal criteria, such as the requirement that decisions had to be notified within the same month and distributed more or less equally over the appraisal period.
In paragraphs 52 and 53 of the judgment under appeal, the Tribunal rejected the argument relating to a discrepancy between the appraisal report and the point of view expressed by the reporting officer at the appraisal interview of 20 October 2011 for, in essence, two reasons. First, the appellant had acknowledged that, at that interview, the subject of his unsatisfactory productivity during the first half of the appraisal period had been discussed. Secondly, and in any event, even if there were a discrepancy between the point of view expressed by the reporting officer and the contested appraisal report, that fact was not such as to affect the lawfulness of the contested appraisal report in so far as the appellant did not deny that he was able to comment on the point of view expressed by the reporting officer in the contested appraisal report and in so far as, at the time of the appraisal interview, the contested appraisal report had not yet been drawn up.
The Tribunal rejected the appellant’s other arguments on the basis, in particular, of the following considerations:
‘55
The applicant’s argument that the reporting officer and the countersigning officer did not make an overall assessment of his output with regard to the whole of the appraisal period must be rejected. By also taking account, in the applicant’s general assessment, of the output held to be unsatisfactory in the first half of the appraisal period, the reporting officer acted in accordance with Article 1 of the GIP, according to which the appraisal report concerns the whole year.
The same is true of the applicant’s argument that the contested appraisal report is contradictory and that, since he had improved his low output after receiving a warning, it was appropriate to take this into account in his favour, rather than to assess him negatively on the ground that he improved his performance only after having been requested to do so by his line managers. That argument is tantamount to denying the relevance for the applicant’s general assessment of two important facts, namely, first, that during the first half of the appraisal period his productivity did not correspond to the objectives set and was therefore not acceptable and, secondly, that he improved his output only after a warning from his line managers and the putting in place of monitoring measures by those managers half way through the appraisal period. In that regard, it must be observed that the fact that the applicant increased his productivity considerably in the second half of the appraisal period showed that he was perfectly capable of achieving the objectives set. Therefore, the applicant cannot criticise OHIM for not having interpreted the change in his output in his favour.
In this connection, it must also be observed that it is obvious from the “Reporting officer’s assessment” section that the general assessment of the applicant is the result of weighing his output deemed unsatisfactory in the first half of the appraisal period against his output deemed markedly better in the second half of that period. According to case-law, the improvement of the conduct in the service of the official under appraisal is indeed an objective which the appraisal report aims to meet (see [judgments of 9 November 2006 in] Commission v De Bry,
C‑344/05 P
, [ECR,]
EU:C:2006:710
, paragraph
; [of 11 December 2012 in] Ntouvas v ECDC,
F‑107/11
, [ECR-SC,]
EU:F:2012:182
, paragraph
). It follows that OHIM did not commit any manifest error of assessment by concluding from that weighing up that, over the whole appraisal period, the applicant’s efficiency and abilities and the aspects of his conduct appraised were not at an acceptable level and that, therefore, he merited only level 6 as a general assessment.
The applicant’s argument that OHIM, by finding that he produced far too many decisions at the end of the month, unlawfully introduced a new appraisal criterion must also be rejected. As the applicant himself conceded, it is apparent from Article 132(2) of Regulation No 207/2009 that each opposition decision must be signed by three members of the Opposition Division. That obligation, of which the applicant — who had considerable experience within OHIM — was aware, implies that, in order not to overburden the other signatories, the drafter as well as the co-signer must produce decisions at regular intervals. It follows that, far from being a new criterion introduced retrospectively, the requirement to produce decisions at regular intervals is essential to teamwork within the Opposition Divisions.
The applicant’s argument that the reporting officer ignored his activity as a co-signer cannot be upheld. It is clear from the “Conduct in the service” section that that part of the applicant’s work was much appreciated and that, consequently, the reporting officer took account of that positive aspect in his general assessment and in the weighing up of his conduct in the service over both halves of the appraisal period. So far as concerns the applicant’s observations on the timeliness of his decisions, it is sufficient to note that, in the contested appraisal report, the reporting officer mentioned that the applicant observed the time-limits in 95.62% of cases, which was above the departmental average of 94%. Therefore, in so far as the applicant submits that that circumstance was not taken into account in the general assessment, that claim is not borne out by the facts.
In any event, the fact that the applicant exceeded the objective relating to timeliness cannot change the fact that, in the first half of the appraisal period, his productivity did not meet the objectives set. An official or staff member cannot derive an argument from his own actions in order to exempt himself from his professional obligations (see [judgment of 12 June 2013 in] Bogusz v Frontex,
F‑5/12
, [ECR-SC,]
EU:F:2013:75
, paragraph
). Consequently, exceeding his objectives as regards timeliness in the second half of the appraisal period did not relieve the applicant from having to observe that objective in the first half of the appraisal period.
The applicant’s argument that OHIM was wrong not to have referred in the contested appraisal report to his article published subsequently in T
he Journal of Intellectual Property Law & Practice
, which had already been made available to OHIM, must also be rejected. As OHIM correctly pointed out, the writing of articles and academic papers is not a priority activity in relation to the applicant’s main tasks. Therefore, even if the contested appraisal report had referred to that article, that fact could not have changed the general assessment according to which, over the whole appraisal period, the applicant’s efficiency and abilities and the aspects of his conduct appraised did not correspond to the level which OHIM was entitled to expect of him. The applicant cannot therefore complain on the ground that the contested appraisal report suggested he should be more committed to his work.
The applicant challenges the fact that OHIM awarded him level “K”, that is to say, the lowest level, in respect of the competencies “[q]uality and results orientation” and “[s]elf management”. That argument must be rejected.
It is not disputed that one of the key elements of level “K” is that the jobholder “might require help to perform”, whereas the condition for obtaining level “P” is that “the jobholder can usually perform the competency independently” and for level “M” that “the jobholder can perform the actions associated with this skill without assistance”. It is common ground that the applicant, having obtained only 87.6 points in respect of his production of decisions, was 17% below the objective fixed, which is why his line managers had to intervene part way through the appraisal period and to monitor him for six months to ensure that he significantly improve his productivity. It follows that, in the applicant’s case, the conditions for obtaining levels “P” (“…independently”) or “M” (“…without assistance”) were not satisfied and therefore, in attributing to him the level “K” in respect of the competencies “[q]uality and results orientation” and “[s]elf management”, OHIM did not commit any manifest error of assessment.
The applicant’s argument that he always demonstrated commitment to his work and personal development and that he systematically achieved the objectives that had been assigned to him between March and October 2011 must be rejected. In fact, in the first half of the appraisal period, the applicant did not achieve the objectives assigned to him and, therefore[,] he did not demonstrate adequate commitment to his work in that period. As was observed in paragraph 56 above, the applicant’s reasoning is tantamount to denying the relevance, for the purposes of his general assessment, of the facts that, in the first half of the appraisal period, his productivity in no way met the objectives fixed and that he increased his output only after the warning from his line managers and while he was being monitored.
Concerning the alleged contradiction between the levels awarded in respect of the various competencies, as it was observed at paragraph 63 above, the award of the level “K” implies that the jobholder might require help to perform his tasks. It is not disputed that, in the appraisal period, the applicant required the help of his line managers, who had to intervene and put in place monitoring measures to ensure he performed his duties properly.
The applicant also claims that, in awarding level 6 as a general assessment, OHIM infringed its own internal rules since, as a rule, that level may be awarded only to persons who have achieved less than 80% of the objective set, whereas he had achieved 83% of his objective.
That argument cannot be upheld either. By relying on that argument, the applicant fails to have regard to the fact that his low output in the first half of the appraisal period was only one of the factors which led the reporting officer to award him level 6, as Ms A explained in the note of 22 May 2012 which she and the countersigning officer sent to the applicant after the JEPC delivered its opinion.
As regards the applicant’s argument that, taking account of his output, timeliness and the quality of his work, he was entitled to be awarded level 5 as a general assessment, it must be observed that the award of level 6 expresses the judgment of the reporting officer that “the efficiency, the abilities and the aspects of conduct appraised …[of the jobholder] do not correspond to the level required” and that “[i]mprovements are needed”. By contrast, level 5 implies that “[t]he efficiency, the abilities and the aspects of conduct appraised are acceptable despite some weak points”.
The applicant does not contest OHIM’s finding that, in the first half of the appraisal period, his efficiency and abilities and the aspects of his conduct appraised were not acceptable in so far as he had clearly not achieved the objectives set, with the result that, over the whole appraisal period, he did not meet the quantitative objective of 105.4 points. The applicant does not dispute either that it was not until he had received a warning from his line managers and monitoring measures had been put in place that he improved his output. Therefore, the applicant may not claim that his failure to perform adequately in the first half of the appraisal period can be described as “acceptable despite some weak points”. In those circumstances, having regard, on one hand, to OHIM’s broad discretion in appraising its staff and, on the other hand, to the applicant’s high grade and his proven professional experience, OHIM did not commit any manifest error of assessment in awarding him level 6 as a general assessment.’
The breaches of procedure alleged before the Tribunal
The Tribunal dismissed the appellant’s claims relating to six breaches of procedure, on the following grounds:
‘72
First, the applicant submits that his right to be heard was infringed since the general assessment in the contested appraisal report bears no relation to what was said at the appraisal interview.
In the present case, contrary to the applicant’s claims, the appraisal interview also concerned his unsatisfactory performance in the first half of the appraisal period. Although, admittedly, at that interview, the reporting officer informed him of her intention at that stage to award level 5 as a general assessment, the fact remains that, under Article 12(5) of the GIP, the appraisal interview ends with the communication by the reporting officer to the person under appraisal of a mere proposal in respect of the general assessment. Since the general assessment is not definitive at that time, the applicant therefore may not complain that the reporting officer changed her assessment in relation to her proposal made at the [appraisal] interview. Consequently, the first alleged breach of procedure must be rejected.
Secondly, the applicant submits that the retrospective introduction of a new criterion concerning the monthly distribution of the production of decisions is unlawful.
So far as this second alleged breach of procedure is concerned, it is sufficient to refer to the grounds set out in paragraph 58 above in order to reject it.
Thirdly, the applicant submits that the reporting officer and the countersigning officer did not provide the JEPC with the comparative information on productivity requested or with any evidence proving the poor quality of the applicant’s work.
That third breach of procedure relied on by the applicant is ineffective. It is not disputed that the JEPC recommended that the reporting officer award the applicant level 5, which corresponds to the claims of the applicant referred to in paragraph 50 above. Therefore, even had the reporting officer failed to answer the JEPC’s requests for further information — which OHIM denies — that fact does not affect the contested appraisal report, since the reporting officer decided not to follow the JEPC’s recommendation.
Fourthly, the applicant submits that the reporting officer included comments in the contested appraisal report based on feedback from the applicant’s co-signers, even though only one of those co-signers was consulted.
So far as concerns that fourth alleged breach of procedure, it is sufficient to observe that it is not disputed by the applicant that 29 out of the 65 decisions which he drafted were forwarded to his co-signers in the last days of the months concerned.
Fifthly, the applicant submits that the reporting officer and countersigning officer substantially ignored the recommendations of the JEPC without providing any appropriate justification in this regard.
In respect of this fifth alleged breach of procedure, under Article 15(8) of the GIP, a reporting officer who decides not to follow the recommendations of the JEPC is required to justify his decision in writing. The reporting officer satisfied this obligation by sending the applicant a note on 22 May 2012, co-signed by the countersigning officer, setting out the reasons why she had not followed the JEPC’s recommendations, with the exception of that concerning the quality of the applicant’s work.
Sixthly, the applicant submits that the reporting officer and the countersigning officer decided to answer the JEPC jointly, in breach of Article 15 of the GIP. According to the applicant, it is possible that the countersigning officer opted for such an approach in order to ensure that it did not occur to the reporting officer to state that the applicant’s performance merited a higher level, as she had previously indicated to him.
That sixth alleged procedural flaw must be rejected. It is obvious from Article 15(8) of the GIP that the decision not to follow the JEPC’s recommendations must be taken by the reporting officer. The note of 22 May 2012 addressed to the applicant was signed by the reporting officer and co-signed by the countersigning officer. It is sufficient to note that the applicant has not adduced any evidence in support of his claim that the countersigning officer imposed his view on the reporting officer.’
The sixth, seventh, eighth and ninth pleas in law relied upon before the Tribunal
In paragraph 96 of the judgment under appeal, the Tribunal rejected the sixth plea relied on before it, alleging infringement of the principle of protection of legitimate expectations, on the following ground:
‘[T]he applicant has not identified the alleged precise assurances provided by OHIM which led to a legitimate expectation on his part that he would obtain level 5 as a general assessment. On the contrary, as observed at paragraph 73 above, the reporting officer’s intention, expressed at the appraisal interview of 20 October 2011, to award him level 5 as a general assessment was only a projected assessment communicated by way of an indication. Therefore, the applicant cannot legitimately claim that the reporting officer’s intention to award him level 5 as a general assessment constituted a precise, unconditional and consistent notification that he would be assessed at this level.’
In paragraph 100 of the judgment under appeal, the Tribunal rejected the seventh plea relied on before it, alleging infringement of the principle of equal treatment, in the following terms:
‘So far as concerns the applicant’s argument that he received a general assessment normally reserved to officials whose productivity is 20% lower than the objectives set, even though his productivity was not more than 17% lower than the objectives set, it can be rejected by reference to the grounds set out in paragraph 67 above. As regards the argument concerning the retrospective introduction of the criterion that decisions should be produced at regular intervals, it can be rejected by reference to the grounds set out at paragraph 58 above. Accordingly, the seventh plea must be rejected.’
In paragraphs 103 and 104 of the judgment under appeal, the Tribunal rejected the eighth plea relied on before it, alleging infringement of the obligations to state reasons, on the following grounds:
‘103
As regards the alleged failure to state reasons in the reporting officer’s decision, communicated by note of 22 May 2012, not to follow all the JEPC’s recommendations, it must be observed that the reasons why the reporting officer wished to confirm the contested appraisal report and to depart from the JEPC’s recommendations, with the exception of that concerning the quality of the applicant’s work, are clearly shown in that note.
The applicant’s argument that, in the note of 22 May 2012, the reporting officer described the fact that he reacted positively to the warning given by his line managers in the mid-term review as “a serious failure in the conduct in the service” is based on a clear misreading of that note. It is clear from the criticised passage of the note at issue that, by writing that “this was considered a serious failure in the conduct in the service”, the reporting officer was referring to the fact that the applicant increased his productivity only after receiving a serious warning from his line managers and after monitoring measures had been put in place.’
As regards the ninth plea relied upon before it, alleging misuse of powers, the Tribunal, in paragraphs 108 to 112 of the judgment under appeal, rejected the appellant’s arguments on, in particular, the following grounds:
‘110
So far as concerns the alleged discrepancy between the appraisal meeting and the contested appraisal report, it is sufficient to refer to paragraphs 52 and 53 above.
The claim that the countersigning officer was displeased by the applicant’s article, even if it were proved, is not, given the complete absence of other evidence which is sufficiently specific, objective and consistent, such as to warrant the claim that the countersigning officer punished the applicant by means of the contested appraisal report for publishing that article. Lastly, the fact that the reporting officer and the countersigning officer did not adopt a position on the applicant’s claims in the action before the JEPC in no way proves that those claims are well founded.’
After rejecting the claims for annulment, the Tribunal, in paragraphs 116 to 118 of the judgment under appeal, also rejected the claim for damages, in so far as it was closely linked with the application for annulment.
Procedure before the Court and forms of order sought
By pleading lodged at the Registry of the General Court on 16 September 2014, the appellant brought the present appeal. On 15 December 2014, OHIM lodged a response. Since the appellant did not apply to lodge a reply, in accordance with Article 143(1) of the Rules of Procedure of the General Court of 2 May 1991, the written procedure was closed.
Acting on a report from the Judge-Rapporteur, the General Court (Appeal Chamber) noted that no application for a hearing to be arranged had been submitted by the parties within the period of one month from notification of the closure of the written procedure and decided to give a ruling without an oral procedure, pursuant to Article 146 of the Rules of Procedure of 2 May 1991.
The appellant claims that the Court should:
—
set aside the judgment under appeal;
—
annul the contested appraisal report;
—
order OHIM to pay him appropriate damages, the amount of which, of at least EUR 500, is left to the Court’s discretion, in order to compensate him for the non-material harm caused by the contested appraisal report;
—
order OHIM to pay the costs incurred at first instance and in connection with the present appeal.
OHIM contends that the Court should:
—
dismiss the appeal in its entirety,
—
reject the claim for damages;
—
order the appellant to pay the costs.
Appeal
In his appeal, the appellant has retained all the pleas in law put forward at first instance. He submits that the Tribunal, by failing to uphold those pleas, erred in law or infringed the obligation to state reasons. The appellant puts forward five grounds of appeal in this connection.
The first ground alleges an error of law inasmuch as the Tribunal failed to recognise that a general assessment must be based on the official’s performance during the appraisal period as a whole. In the second ground, the appellant claims that the Tribunal erred in law or failed to comply with its obligation to state reasons by not recognising the seriousness of the infringements of essential procedural requirements committed by OHIM. The third ground alleges an error of law relating to the principle of the protection of legitimate expectations. The fourth ground alleges a failure to state adequate reasons for the rejection of the plea alleging the infringement of the principle of equal treatment. In the fifth ground, the appellant relies on a failure to state adequate reasons and distortion of the evidence linked to the plea in law alleging misuse of powers (see paragraph 27 below).
The admissibility of the appeal
OHIM contends that the appeal as a whole is inadmissible, as are the grounds of appeal and factual arguments put forward by the appellant. OHIM argues that the appellant has merely reproduced the pleas and arguments already put forward at first instance, including those based on the facts, which is tantamount to requesting a straightforward re-examination of the application submitted before the Tribunal. It submits that the Court does not have jurisdiction to undertake such a re-examination.
First, the objection of inadmissibility brought against the appeal as a whole cannot be upheld.
Admittedly, according to case-law, it follows from Article 11(1) of Annex I to the Statute of the Court of Justice and Article 138(1)(c) of the Rules of Procedure of 2 May 1991 that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Tribunal. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Tribunal, which the General Court does not have jurisdiction to undertake (judgment of 19 September 2008 in Chassagne v Commission,
T‑253/06 P
, ECR-SC,
EU:T:2008:386
, paragraph
).
However, provided that the appellant challenges the interpretation or application of EU law by the Tribunal, the points of law examined at first instance may be discussed again in the course of the appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Tribunal, an appeal would be deprived of part of its purpose (judgment inChassagne v Commission, paragraph
above,
EU:T:2008:386
, paragraph
; see also, by analogy, order of 11 November 2003 in Martinez v Parliament,
C‑488/01 P
, ECR,
EU:C:2003:608
, paragraph
).
In the present case, it is apparent from the grounds of appeal (see paragraphs 19 and 20 above) and the arguments put forward by the appellant before the Court that he has not confined himself to repeating the complaints made in the application at first instance, but states precisely, by identifying the relevant paragraphs of the judgment under appeal, the aspects he is criticising and clearly sets out the legal arguments on which he is relying in support of his application to have that judgment set aside.
In support of the first three grounds of appeal, the appellant clearly sets out the reasons for which he considers that the Tribunal erred in law. In the first ground of appeal, the appellant alleges that the Tribunal accepted, in paragraphs 55 to 57, 60 and 69 of the judgment under appeal, OHIM’s point of view according to which an appraisal could be based only on the performance of the official during half of the appraisal period whereas, in his view, the whole of that appraisal period should be taken into consideration. Likewise, in the second ground of appeal, the appellant asserts that the Tribunal erred in law, in particular in paragraphs 73, 75, 77, 79 and 83 of the judgment under appeal, by failing to recognise the seriousness of the six infringements of essential procedural requirements alleged. In the third ground of appeal, the appellant claims that the Tribunal erred in law by applying the principle of the protection of legitimate expectations in a formalistic manner. Contrary to what OHIM contends, the appellant puts forward specific legal arguments in support of those three grounds of appeal in order to dispute the corresponding grounds of the judgment under appeal.
Lastly, the fourth ground of appeal alleges a failure to state adequate reasons in so far as, according to the appellant, the Tribunal did not examine his arguments relating to the infringement of the principle of equal treatment. As regards the fifth ground of appeal, it alleges a failure to state adequate reasons and a distortion of the clear sense of the evidence, in so far as the Tribunal did not examine the evidence put forward to establish the existence of a misuse of powers. It must be recalled in this connection that, according to case-law, a plea alleging that the court at first instance has refused to respond to a head of claim or a plea put forward before it is, in essence, tantamount to alleging an infringement by the Tribunal of the obligation to state adequate reasons, as provided for in Article 36 of the Statute of the Court of Justice, applicable to the Tribunal pursuant to Article 7(1) of Annex I to that Statute (judgment of 8 October 2014 in Bermejo Garde v EESC,
T‑529/12 P
, ECR-SC,
EU:T:2014:861
, paragraph
).
Those arguments submitted by the appellant therefore show that he is not merely requesting a re-examination of the complaints set out in the application at first instance.
Consequently, the objection of inadmissibility raised by OHIM must be rejected in so far as it concerns the appeal as a whole.
Secondly, as regards the objection of inadmissibility alleging that the appellant has repeated, in support of his appeal, certain factual pleas and arguments relied upon at first instance (see paragraph 21 above), it must be recalled that, pursuant to Article 257 TFEU and Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal to the General Court is limited to points of law. It is settled case-law that the court at first instance has exclusive jurisdiction to establish the facts, except where a substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts, save where the evidence adduced before it has been distorted, provided such distortion is obvious from the documents on the file, without there being any need to carry out a new assessment of the facts and the evidence or, indeed, to have recourse to new evidence (order of 19 December 2013 in da Silva Tenreiro v Commission,
T‑634/11 P
, ECR-SC,
EU:T:2013:720
, paragraph
).
Consequently, the admissibility of the factual pleas and arguments must be examined, where necessary, in the course of the individual examination of those pleas and arguments.
Substance
The first ground of appeal, alleging infringement of the obligation to base the general assessment on the official’s performance during the appraisal period as a whole
The appellant submits, first of all, that he has never disputed that his performance during the first half of the appraisal period was unsatisfactory in terms of the quantity of decisions produced. In the same way, he submits, OHIM has not at any point contested that, during the second half of the appraisal period, the appellant’s production was, month after month, one of the highest in the service. However, the appellant submits that the general assessment he was awarded was based almost exclusively on his unsatisfactory performance during the first half of the appraisal period.
Against that background, the appellant asserts that the Tribunal erred in law, in confirming that the general assessment of an official could be based exclusively on his performance during half of the appraisal period, whereas the appellant submitted that such an assessment should be based on the overall performance of the person concerned during the appraisal period as a whole.
The appellant alleges in this connection that it is evident from paragraphs 55 to 57, 60 and 69 of the judgment under appeal that the Tribunal accepted that OHIM’s discretion in the matter of the assessment of its staff was broad enough to permit it to base the general assessment of an official exclusively on the official’s performance in the first half of the appraisal period. The appellant therefore criticises the Tribunal for not acknowledging that the general assessment should also take into account his outstanding performance in the second half of the period. He submits that the reasoning of the Tribunal in this respect is illogical, incoherent and contradictory.
OHIM disputes those arguments.
It must be noted that the appellant’s arguments are founded on the incorrect premise that the Tribunal accepted that the general assessment of an official could be carried out on the exclusive basis of his performance during the first half of the appraisal period, thus ignoring his performance during the second half of that period instead of taking into consideration the whole of the appraisal period.
Those arguments are based on a misreading of the judgment under appeal, from which it is clear that the Tribunal held that the general assessment of an official must be based on the appraisal period as a whole.
In this connection it must first be observed that, in paragraph 55 of the judgment under appeal, the Tribunal rejected the appellant’s argument that the reporting officer and the countersigning officer failed to make an overall assessment of his output with regard to the whole of the appraisal period, after pointing out that, under Article 1 of Decision ADM-04-18-Rev, adopted by OHIM on 27 July 2005 and fixing the general provisions implementing Article 43 of the Staff Regulations (‘the GIP’), as applicable during the period under consideration, the appraisal report concerned the whole year. Accordingly, by finding that the reporting officer could, in the appellant’s general assessment, ‘also’ take account of the output held to be unsatisfactory in the first half of the appraisal period, the Tribunal did not follow an illogical, incoherent or contradictory line of reasoning. By recognising that the appellant’s unsatisfactory performance during the first half of the appraisal period could also be taken into consideration, the Tribunal merely drew the appropriate inferences from the obligation to base the appraisal report on that period as a whole. By that statement, the Tribunal did not play down the need for the reporting officer to also take into due account the second half of the appraisal period.
Secondly, the Tribunal confirmed the need to take account of the whole of the appraisal period, in paragraph 57 of the judgment under appeal, by drawing attention to the fact that the general assessment of the appellant was the result of weighing his output deemed unsatisfactory in the first half of the appraisal period against his output deemed markedly better in the second half of that period.
Thirdly, contrary to the interpretation adopted by the appellant, the reference, in paragraphs 56 and 69 of the judgment under appeal, to the warning and to the measures for his assistance adopted half way through the appraisal period cannot be construed to the effect that it calls into question the obligation on the reporting officer and countersigning officer to take into due account the appellant’s performance during the whole of the appraisal period, including during the second half of that period. It was indeed in connection with the weighing up of the appellant’s productivity during both halves of the appraisal period that the Tribunal held that the warning in question constituted an important fact, which could be taken into account by OHIM under its broad discretion in appraising its staff. Such a consideration falls within the scope of the assessment of the facts by the Tribunal and is not therefore reviewable by the General Court, pursuant to the case-law cited in paragraph 30 above. The same is true of the finding, in paragraph 60 of the judgment under appeal, that, essentially, the good results of the appellant in the second half of the period did not relieve him from having to observe the quantitative objective which he had been set in the first half of that period.
In the light of all the foregoing considerations, it must be stated that the judgment under appeal does not show that the Tribunal relied on the idea that the reporting officer’s discretion was broad enough to enable her to base the appellant’s general assessment exclusively on his performance during the first half of the appraisal period, without weighing that performance against the positive results obtained during the second half of that period.
On the contrary, it was by reviewing the weighing up, carried out by the reporting officer, of the appellant’s performance during the appraisal period as a whole that the Tribunal essentially concluded, in paragraphs 57 and 69,
in fine
, of the judgment under appeal, that OHIM had not committed any manifest error of assessment in awarding the appellant level 6 as a general assessment.
For all those reasons, the first ground of appeal must be rejected.
The second ground of appeal, alleging an error of law or a failure to state adequate reasons as regards the assessment of the infringement of essential procedural requirements claimed by the appellant
The appellant claims that the Tribunal erred in law, or failed to fulfil its obligation to state adequate reasons, by failing to have regard to the seriousness of the infringement of essential procedural requirements he had raised. That ground of appeal is divided into five limbs relating to, first, the discrepancy between the appraisal interview and the appraisal report of 9 January 2012, secondly, the retrospective introduction of a new criterion into the appraisal procedure, thirdly, the reporting officer’s failure to communicate the information required by the Joint Evaluation and Promotion Committee (‘the JEPC’), fourthly, the reporting officer’s failure to consult the appropriate co-signers and, fifthly, the lack of an adequate statement of reasons for the decision of the reporting officer and the countersigning officer not to follow the JEPC’s recommendations.
– The first limb, relating to the discrepancy between the appraisal interview and the appraisal report
The appellant observes that it is not disputed that there was a discrepancy between the positive view expressed by the reporting officer at the appraisal interview of 20 October 2011 and the negative nature of the appraisal report sent to him on 9 January 2012. He submits that one of the purposes of that interview is to give the official concerned the opportunity to comment on any negative aspect that the reporting officer wishes to include in the appraisal report. In the present case, the appellant submits, he was denied that opportunity because the negative aspects were not discussed at the interview.
OHIM disputes those arguments.
Pursuant to the relevant regulations, the appraisal interview must form the basis for the drafting by the reporting officer of the appraisal report, as is apparent from Article 12 of the GIP. That fact is indeed expressly mentioned in Annex 4 to the Reporting Officer’s Practical Dossier on Appraisals 2011, communicated, under Article 9 of the GIP, to OHIM reporting officers with a view to providing them with advice and guidelines for the drafting of appraisal reports, in order to ensure that appraisal criteria are harmonised with respect to all members of staff. Moreover, as stated in Annex 4 to the Practical Dossier, the essential purpose of the appraisal interview is, in particular, to discuss each aspect of the appraisal. Lastly, the fifth paragraph of Article 12 of the GIP provides that the appraisal interview concludes with the reporting officer informing the person under appraisal of the outline of the report and of his general assessment proposal.
In that context, first, it must be observed that the Tribunal correctly held, in paragraph 73 of the judgment under appeal, that, according to paragraph 5 of Article 12 of the GIP, the reporting officer was to communicate to the person under appraisal a mere proposal in respect of the general assessment which, not being definitive, could therefore be changed subsequently in accordance with the appraisal procedure established under the GIP.
Under that procedure, the definitive appraisal report, which alone is communicated to the person under appraisal, is drawn up not by the reporting officer but by the countersigning officer. Under Article 12 of the GIP, the draft appraisal report drawn up by the reporting officer at the end of the appraisal interview is sent to the countersigning officer, who is responsible for ensuring, under Article 2(c) and Article 13 of the GIP, that the appraisal criteria are applied properly and consistently in all the reports which he countersigns. In the event of a disagreement with the reporting officer, the countersigning officer summons him, and if necessary the person under appraisal, to a consultation meeting in order to try to reach an agreement. If an agreement is reached between the reporting officer and countersigning officer, the appraisal report thus amended is countersigned by the countersigning officer and forwarded by the reporting officer to the person under appraisal. If the consultation meeting fails to result in an agreement, the countersigning officer adopts the final decision.
In the present case, it is not disputed that the reporting officer had informed the appellant, at the end of the appraisal interview, that she would propose to award him level 5 as a general assessment. However, the countersigning officer did not approve that proposal. Since an agreement was reached between the reporting officer and the countersigning officer on an amendment to the draft appraisal report at the consultation meeting requested by the countersigning officer, the appellant was sent the definitive appraisal report, thus amended. Inasmuch as the procedure followed was in accordance with the GIP summarised in paragraph 49 above, the Tribunal was fully entitled to conclude, in paragraph 73 of the judgment under appeal, that the appellant could not complain that the reporting officer had changed her assessment in relation to her proposal to award him general assessment level 5, made at the appraisal interview.
Secondly, it must be added that, accordingly, at the appraisal interview, the appellant was not denied the opportunity to comment on all the negative aspects which the reporting officer wished to include in the appraisal report, in particular so far as concerns his unsatisfactory productivity during the first half of the appraisal period. The appellant does not dispute this fact. As he himself admitted, in the self-appraisal drafted, in accordance with the Practical Dossier, to form a basis for the discussion and which is attached as an annex to the final report, in the first half of that period, his productivity in terms of the number of decisions adopted was some way behind his target schedule. Furthermore, it was only on account of the countersigning officer’s disagreement that the draft report compiled by the reporting officer was amended after the appraisal interview, a consensus having been found between the reporting officer and the countersigning officer during the consultation meeting (see paragraph 50 above). In those circumstances, the appellant was able to comment properly on the appraisal report, which had been communicated to him on 9 January 2012, at the conciliation meeting on 25 January 2012 with the reporting officer and the countersigning officer (see paragraphs 31 and 32 of the judgment under appeal, cited in paragraph 2 above).
For all those reasons, the first limb of the second ground of appeal, alleging that the Tribunal erred in law by holding that the discrepancy between the appraisal interview and the appraisal report of 9 January 2012 did not constitute a breach of procedure affecting the lawfulness of the contested appraisal report, must be rejected.
– The second limb, relating to the retrospective introduction of a new criterion into the appraisal procedure
The appellant claims that the Tribunal erred in law by considering justified, in paragraph 58 of the judgment under appeal, the retrospective introduction by OHIM of a new appraisal criterion during the appraisal procedure, under the appraisal report heading ‘Competencies — Working with others and interpersonal relations’, in connection with which the appellant was criticised for producing too many opposition decisions during the last week of the month, which placed his co-signers under pressure in so far as they were thus required to co-sign many decisions at a time when they too had their objectives to consider. The appellant submits in that regard that OHIM has never instructed staff in the Opposition Divisions to produce decisions at any particular rhythm.
OHIM disputes those arguments.
It must be stated that, contrary to the interpretation adopted by the appellant, the Tribunal did not hold that OHIM retrospectively applied a new appraisal criterion so far as the competency ‘Working with others’ was concerned, consisting in producing decisions at a particular rhythm.
In the assessment of the facts, the Tribunal, on the contrary, held, in paragraph 58 of the judgment under appeal, that ‘far from being a new criterion introduced retrospectively, the requirement to produce decisions at regular intervals [was] essential to teamwork within the Opposition Divisions’ in order not to overburden the other signatories, since each opposition decision had to be signed by three members of the Opposition Division.
Inasmuch as this is a finding of fact and the appellant does not dispute the facts or claim that they have been distorted, that finding by the Tribunal does not fall within the scope of the General Court’s power of review, in accordance with the case-law cited in paragraph 30 above.
It follows that the second limb of the second ground of appeal, alleging that the Tribunal allowed the retrospective introduction into the appraisal procedure of a new appraisal criterion for the team-working competency, must be rejected.
– The third limb, relating to the reporting officer’s failure to communicate the information required by the JEPC
The appellant submits that the Tribunal erred in law by ruling that the appraisal procedure was not vitiated by the fact that the reporting officer had not provided the additional comparative information requested by the JEPC, in particular ‘details regarding production (quantity and quality wise)[,] especially how staff with comparable production were assessed’. The appellant claims that the reporting officer, in her reply to that request for comparative information, merely stated that, under the criteria laid down for the 2011 appraisal period, production 20% below the set objectives corresponded to a general assessment of level 6.
OHIM disputes those arguments.
As a preliminary point, it must be recalled that under OHIM’s internal rules, set out in Article 4(b) of Decision ADM-04-19-Rev of the President of OHIM of 27 July 2005 establishing the composition, procedure and powers of the JEPC, that committee, when an opinion is sought from it by the person under appraisal in accordance with Article 15 of the GIP, is to verify, in particular, whether the reporting officer has complied with the appraisal criteria and whether the report was drawn up fairly and objectively. To that end, the JEPC may carry out any consultation or hearing that it deems useful and may request any document or information likely to assist it in its work.
In paragraph 77 of the judgment under appeal, the Tribunal rejected the complaint alleging a breach of procedure on account of the alleged failure to provide the JEPC with comparative data on productivity on the ground, in essence, that that body had, in any event, recommended that the reporting officer award the appellant level 5, which corresponded to the claims of the appellant, and that the reporting officer had decided not to follow the JEPC’s recommendation.
Admittedly, the fact that the reporting officer has decided not to follow the JEPC’s consultative opinion does not permit the inference that the alleged irregularity is ineffective. In particular, the fact that the opinion was not issued on the basis of adequate information is liable to have an effect not only on the conclusions in that opinion, but also on its grounds and, consequently, on the final outcome of the appraisal procedure. It is apparent from Article 15 of the GIP and from Article 4(b) of Decision ADM-04-19-Rev that, if the JEPC proposes, in its opinion, the amendment of the appraisal report, the reporting officer is required to review that report in the light of the contents of the opinion and, if he decides to depart from its recommendations, to justify that decision in writing. The reporting officer’s decision on whether or not to amend the report and, as appropriate, the reasons given for his decision not to follow the opinion may therefore be influenced, in particular, by the grounds of the opinion. Such a decision must thus be adopted on the basis of a valid opinion, if the appeal before the JEPC is not to be rendered redundant and the person concerned deprived of his procedural rights.
However, in the present case, as the Tribunal also pointed out, the JEPC in its opinion recommended that the appellant’s claims be upheld and that he be awarded level 5: ‘acceptable despite some weak points’ (see paragraph 62 above and paragraph 35 of the judgment under appeal, quoted in paragraph 2 above). The JEPC justified that recommendation on the ground that the appellant had not achieved the quantitative objectives in relation to the decisions taken, but that his output, which was 17% below the objectives, was not so low as to be qualified as ‘[does] not correspond to the level required’ and to thus warrant the appellant being awarded level 6. The JEPC explained in that regard that, in accordance with the information provided by the reporting officer, such an assessment was only given if the output was 20% or more below the objectives. In addition, the JEPC observed that, in all other areas, the appellant had achieved the objectives or exceeded them and that the general assessment had to take into consideration all competencies and objectives.
Thus, it is clear from the contents of that opinion, which the JEPC reached unanimously, that that committee considered itself fully equipped in order to assess whether the appellant’s appraisal report was fair and objective, on the basis of, first, the quantitative criterion relating to production 20% or more below the objectives, which had been set with regard to all staff in respect of the 2011 appraisal period, as the reporting officer had indicated in her reply to the JEPC’s request for information, and, secondly, the weighing-up of all the appellant’s competencies and objectives.
In those circumstances, even if the reporting officer did not reply exhaustively to the JEPC’s requests for additional comparative information on productivity, which has not been established at first instance, that irregularity would not have been such as to have affected the validity of the procedure before that body. It is apparent from the JEPC’s opinion that it considered itself to have sufficient information from the reporting officer’s response concerning the quantitative criterion relating to production 20% or more below the objectives to be able to uphold, giving detailed reasons, the appellant’s claim seeking the award of level 5 as a general assessment.
It follows that the Tribunal did not err in law in concluding that the complaint alleging the failure by the reporting officer to communicate additional information was, in any event, ineffective. The third limb of the second ground of appeal must accordingly be rejected.
– The fourth limb, relating to the failure to consult the appropriate co-signers
The appellant claims that the Tribunal erred in law in rejecting, in paragraph 79 of the judgment under appeal, the complaint relating to the failure to consult the appropriate co-signers on the ground that the appellant did not dispute that 29 out of the 65 decisions which he drafted were forwarded to his co-signers in ‘the last days’ of the months concerned. The appellant claims that the reporting officer admitted that she consulted only one of the five co-signers working with him, plus one other person who was not one of those co-signers.
The appellant does not submit in this connection that the above fact had any concrete effect on the outcome of the appraisal procedure. He merely submits that OHIM argued before the Tribunal — on the basis of information provided by the two people consulted — that the 29 decisions referred to in paragraph 68 above were sent in the last week of the months in question and not ‘the last days’ as stated in the judgment under appeal.
Likewise, it must be stated that the appellant did not put forward, before the Tribunal, any specific argument seeking to establish that, had several appropriate persons been consulted, some of the assessments made in the appraisal report based on that consultation could have been more favourable and the appraisal procedure could have culminated in a different outcome.
A failure to consult the appropriate people may result in the annulment of the decision taken at the end of the appraisal procedure only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see, to that effect, judgment of 10 September 2013 in G. and R.,
C‑383/13 PPU
, ECR,
EU:C:2013:533
, paragraph
).
That is not at all the case in the circumstances before the Court, in so far as the only unfavourable assessments made under the heading ‘Working with others and interpersonal relations’ relate to the fact that the appellant submitted a large proportion of his decisions to his co-signers in the last week of the month, which the appellant does not dispute.
It follows that the fourth limb of the second ground of appeal, alleging that the Tribunal erred in law in rejecting the appellant’s arguments relating to the failure to consult the appropriate people, must be rejected.
– The fifth limb, relating to the lack of an adequate statement of reasons for the decision of the reporting officer and the countersigning officer not to follow the JEPC’s opinion
The appellant claims that the Tribunal infringed its obligation to state reasons for the rejection of the complaint alleging the lack of an adequate statement of reasons for the decision of the reporting officer and the countersigning officer not to follow the JEPC’s opinion. The appellant claims that the Tribunal merely stated, in paragraphs 81 and 103 of the judgment under appeal, that the reporting officer’s note of 22 May 2012, countersigned by the countersigning officer, set out the reasons why the reporting officer had not followed the JEPC’s opinion, with the exception of the recommendation concerning the quality of the appellant’s work.
The appellant submits that it was for the Tribunal to ascertain, in the light of his arguments, whether the reasons put forward by the reporting officer — which consisted in alleging that the JEPC took account only of the criteria relating to efficiency and competencies and ignored the third criterion relating to conduct in the service — were adequate. In that regard, the appellant points out that he argued at first instance that, out of the two assessments concerning his conduct in the service in his appraisal report, the first, relating to his co-signing activity and his re-reading of opposition decisions drafted by his colleagues, was entirely favourable to him. As regards the second, it referred to the warning given to the appellant in March 2011 and stated that it was only from that moment that he started to perform as expected. The appellant claims that, as he maintained before the Tribunal, that second assessment was no different in nature to the assessments which had been made concerning ‘Efficiency (including Objectives)’ and ‘Competencies’. Consequently, he submits, the JEPC was not unaware of the negative assessments in the appraisal report, relied on by the reporting officer in order to depart from its opinion.
OHIM disputes those arguments.
As a preliminary point, it must be recalled that, contrary to OHIM’s claims, the issue of whether adequate reasons have been stated for a decision is, pursuant to case-law, a question of law reviewable by the General Court on appeal. Review by the court of appeal in this context of the legality of a decision must of necessity take into consideration the facts on which the court at first instance based its findings as to the adequacy or inadequacy of the statement of reasons (see, by analogy, judgment of 20 November 1997 in Commission v V,
C‑188/96 P
, ECR,
EU:C:1997:554
, paragraph
).
Moreover, as the appellant correctly points out, when the JEPC recommends in its opinion an amendment of the appraisal report, Article 15 of the GIP and Article 4(b) of Decision ADM-04-19-Rev require the reporting officer to take account of that recommendation and, if he decides not to follow it and to maintain the initial appraisal report, to justify his decision in writing (see paragraph 63 above). Furthermore, according to case-law, the appraisal report must state specific reasons where the assessor intends not to follow the recommendations of the JEPC and where the JEPC’s opinion mentions special circumstances likely to cast doubt on the validity or proper foundation of the original assessment (see, to that effect, judgment of 30 September 2004 in Ferrer de Moncada v Commission,
T‑16/03
, ECR-SC,
EU:T:2004:283
, paragraph
).
In the present case, as pointed out in paragraph 64 above, first, the JEPC relied in its opinion on the fact that the appellant had achieved 83% of the objectives he had been set in terms of the number of decisions drafted, while, according to the quantitative criterion set in respect of the 2011 appraisal period, general assessment level 6 was in principle awarded only where productivity was 20% or more below the objectives. Secondly, the JEPC drew attention to the fact that, in all other fields, the appellant had achieved or exceeded the objectives and that all competencies and objectives had to be taken into consideration for the purposes of the general assessment.
In the light of those facts, it was for the Tribunal to ascertain, having regard to the appellant’s arguments summarised in paragraph 75 above, whether the reporting officer had stated reasons to the requisite legal standard for its decision to maintain the general assessment of level 6 originally awarded to the appellant.
While the obligation of the Tribunal to give reasons for its decisions does not go so far as to require it to respond in detail to every argument advanced by the parties, particularly where the arguments were not sufficiently clear and precise and were not based on detailed evidence, it does, at the very least, require it to examine all the infringements of law alleged before it (judgment of 5 June 2014 in Brune v Commission,
T‑269/13 P
, ECR-SC,
EU:T:2014:424
, paragraph
).
In the present case, the Tribunal responded to the appellant’s arguments in a clear and comprehensible manner, by stating, in paragraphs 81 and 103 of the judgment under appeal, that the reporting officer had complied with her obligation to justify in writing her decision not to follow the JEPC’s opinion by sending the appellant, on 22 May 2012, a note setting out the reasons for which she had not followed the JEPC’S recommendation that he be awarded level 5 as a general assessment. In that note, the reporting officer had pointed out that she had decided to follow the JEPC’s recommendation relating to the quality of the appellant’s work. She had also observed that the general assessment had to take into consideration the criteria relating to the efficiency, competencies and conduct in the service of the person under appraisal. In that context, first, the reporting officer argued that the JEPC had not taken the third series of criteria into consideration, relating to conduct in the service. She stated in that connection that the appellant had been given a warning half way through the appraisal period, on account of his unsatisfactory productivity, which constituted a serious failure in the conduct in the service. The reporting officer inferred from this that the appellant could not be awarded a general assessment of 5 points, corresponding to efficiency, competencies and conduct in the service which are ‘acceptable’. Secondly, the reporting officer relied on the negative assessment relating to an irregular working rhythm, issued with regard to the appellant under the criterion relating to the ’self management’ competency.
It follows that the fifth limb of the second ground of appeal, alleging a lack of a statement of reasons in the judgment under appeal for the rejection of the complaint relating to the failure of the reporting officer to state adequate reasons for her decision not to follow the JEPC’s opinion, must be rejected.
For all of those reasons, the second ground of appeal must be rejected.
The third ground of appeal, alleging an error of law relating to the principle of the protection of legitimate expectations
The appellant claims that he had a legitimate expectation, after being warned about his unsatisfactory output half way through the appraisal period, of receiving an appraisal report fairly reflecting his work throughout the period as a whole, if he improved his output. The appellant concedes that he did not receive any written assurance to that effect. However, he criticises the Tribunal for not having found that such an assurance was implied.
OHIM disputes those arguments.
In that regard, it is sufficient to state that, on any view, the issue of whether the appellant’s hierarchical superiors impliedly gave him any sufficiently precise and consistent assurances such as to lead to legitimate expectations on his part is an assessment of a factual nature. Therefore, since such an assessment is not a matter of law and the appellant has not claimed any substantive inaccuracy or distortion of the facts, that assessment is not reviewable by the General Court on appeal, in accordance with the case-law cited in paragraph 30 above.
It follows that the third ground of appeal must be rejected.
The fourth ground of appeal, alleging an error of law and a lack of a statement of reasons in the judgment under appeal for the rejection of the plea in law alleging infringement of the principle of equal treatment
The appellant submits that the Tribunal, in its consideration of the plea alleging infringement of the principle of equal treatment, merely, in paragraph 100 of the judgment under appeal, referred to paragraphs 67 and 58 of that judgment. He therefore criticises the Tribunal on the grounds that it did not address that plea and erred in law.
The appellant states in support of that ground of appeal that he had submitted at first instance that the most flagrant breach of the principle of equal treatment was that he was awarded a general assessment normally reserved for officials whose productivity was 20% below the objectives set, whereas his productivity was 17% below those objectives. In addition, he claims that a new criterion, under which decisions had to be drafted at a regular rhythm throughout the month, was applied exclusively and retrospectively with regard to him.
OHIM contends that the Tribunal correctly held that there was no discrimination of any kind.
It must be noted as a preliminary point that, by alleging that the Tribunal did not answer either of the arguments mentioned in paragraph 90 above, the appellant is claiming an infringement of the obligation to state reasons, in accordance with the case-law cited in paragraph 27 above. The appellant also disputes the justification for the rejection in the judgment under appeal of that plea in law (see paragraph 89 above).
In the first place, it is necessary to ascertain whether the Tribunal stated reasons to the requisite legal standard for its rejection of the appellant’s main argument, and then to adjudicate on the argument that the rejection in question is vitiated by an error of law (see paragraph 99 below).
First, it is apparent from paragraph 100 of the judgment under appeal, read in conjunction with paragraph 67 thereof, that the Tribunal based its rejection of the complaint relating to the discriminatory nature of the award to the appellant of level 6 as a general assessment, even though he had achieved 83% of the objectives set in respect of the appraisal period as a whole, on the note of 22 May 2012, sent to the appellant by the reporting officer in order to justify her decision not to follow the JEPC’s opinion. It is clear from that note that the appellant’s low output in the first half of the appraisal period was merely one of the factors which led to him being awarded level 6.
Under Article 9 of the GIP, the general assessment must take into consideration all the appraisal criteria relating, first, to abilities, secondly, to efficiency, which includes the achievement of quantitative objectives, and, thirdly, to conduct in the service.
That general assessment thus entails a weighing up of the results obtained with regard to those various criteria during the appraisal period as a whole (see paragraph 42 above). It cannot therefore be confined to the application of solely the quantitative criterion relating to the achievement of more than 80% of the objectives in order to automatically rule out the award of level 6, without taking account, as appropriate, of any negative assessments in relation to the other criteria.
In the present case, the reporting officer, in order to justify, as she was required to do under the rules and case-law cited in paragraph 78 above, her decision to maintain the award of level 6 as a general assessment in the appraisal report, thus departing from the JEPC’s opinion, raised, in her note of 22 May 2012, the fact that the appellant had increased his productivity in accordance with the objectives set only after a warning from his hierarchical superiors in March 2011 and that this constituted a serious failure in the conduct of the service (see paragraph 69 of the judgment under appeal and paragraph 82 above).
In that context, it must be held that the Tribunal answered the appellant’s main argument to the requisite legal standard (see paragraph 93 above).
Furthermore, as regards the justification for the appraisal of the appellant’s conduct in the service, which was made by taking into consideration the warning given to him on account of his unsatisfactory productivity in the first half of the appraisal period, that question is an assessment of a factual nature and, accordingly, is not reviewable by the General Court on appeal (see paragraph 30 above).
In the second place, it is necessary to ascertain whether the Tribunal satisfied its obligation to state reasons or erred in law in its rejection of the appellant’s second argument, according to which the retrospective application of a new criterion, on the basis of which the appellant was criticised for producing a disproportionally high number of decisions at the end of the month, was also discriminatory inasmuch as that criterion was not applied to the other officials in the same situation.
In this connection, the Tribunal expressly rejected, in paragraph 58 of the judgment under appeal, the complaint that the requirement to produce decisions at regular intervals throughout the month was a new appraisal criterion applied retrospectively, holding essentially that it was a factual aspect of the appraisal of teamwork (see paragraphs 55 and 56 above). In addition, the appellant has not put forward any evidence which would give grounds for assuming that that requirement had not been taken into consideration in the appraisal of the other members of the Opposition Division. Consequently, the judgment under appeal states adequate reasons as regards this issue.
Moreover, inasmuch as the assessment of the justification for taking into consideration the regularity of the appellant’s working rhythm, under the criterion relating to the ’self management’ competency, is an assessment of a factual nature, it is not reviewable by the General Court on appeal (see paragraph 30 above).
For all those reasons, the fourth ground of appeal must be rejected.
The fifth ground of appeal, alleging a distortion of the clear sense of the evidence in relation to the existence of a misuse of powers
The appellant claims that the Tribunal distorted the clear sense of the evidence relied on in support of the plea alleging a misuse of powers, by failing to examine that evidence or call the reporting officer as a witness.
The appellant submits that there is sufficient circumstantial evidence to conclude that the contested appraisal report was not drafted in order to provide an objective appraisal of the appellant’s work throughout the appraisal period but with the intention of punishing him for the publication of an article criticising, first, certain aspects of OHIM’s recruitment policy at the time when the countersigning officer directed the Human Resources department and, secondly, the approach adopted by OHIM in opposition cases under countersigning officer.
The appellant claims that the countersigning officer, when he convinced the reporting officer to award the appellant a less favourable mark, was motivated not by a wish to harmonise the appraisal criteria but by his displeasure following the appellant’s request to publish the article mentioned in paragraph 105 above. The appellant submits that OHIM has conceded that the countersigning officer expressed to the appellant his displeasure regarding the publication.
OHIM disputes those arguments.
In the first place, it must be observed that the Tribunal did not distort the clear sense of the documents relied on by the appellant. First, it is admittedly apparent from the e-mails sent to the appellant by the reporting officer on 9 June and 2 September 2011 (see paragraphs 13 and 14 of the judgment under appeal) that the reporting officer and the countersigning officer congratulated the appellant for his excellent results in the last few months previous to those e-mails. However, the recognition of such results consequent to a warning being issued to the appellant on 31 March 2011 related to solely part of the appraisal period and therefore did not allow any conclusion to be drawn as to the appraisal which would be made regarding that period as a whole, as the Tribunal found, in essence, in paragraph 52 of the judgment under appeal.
Secondly, the mere fact that the countersigning officer expressed his displeasure at the abovementioned publication, even if that was actually the case, is not a sufficient ground, in the absence of any other evidence, on which to assume that he did not perform his duties as countersigning officer objectively but intended to punish the appellant by the award of a lower level as a general assessment.
Thirdly, in that context, as the Tribunal observed in paragraph 110 of the judgment under appeal read in conjunction with paragraph 53 thereof, the existence of a discrepancy between the appraisal interview and the general assessment level awarded to the appellant in the contested report does not constitute evidence of a misuse of powers. That discrepancy may be readily explained by the appraisal procedure itself (see paragraph 49 above), from which it is apparent that the definitive appraisal report is drawn up not by the reporting officer but by the countersigning officer, whose duty is to ensure harmonisation of the appraisal criteria in all the reports which he signs. Moreover, it must be recalled that the reporting officer’s decision to award level 6 as a general assessment in the contested report, contrary to the JEPC’s recommendation to award the appellant level 5 as a general assessment, was justified to the requisite legal standard (see paragraphs 82 and 83 above).
In the second place, the Tribunal cannot be alleged to have distorted the clear sense of the evidence by not summoning the reporting officer as a witness by way of a measure of inquiry. It must be stated that, in the light of the circumstances of the case and arguments put forward by the appellant, summarised and examined in paragraphs 105 to 110 above, the Tribunal was fully entitled to reject the plea alleging misuse of powers as unfounded, without considering it necessary to adopt the measure of inquiry mentioned above (see, to that effect, judgment of 12 May 2010 in Commission v Meierhofer,
T‑560/08 P
, ECR,
EU:T:2010:192
, paragraph
).
It follows that the fifth ground of appeal must be rejected.
The present action must therefore be dismissed in its entirety.
Costs
In accordance with Article 211(2) of the Rules of Procedure of the General Court, where the appeal is unfounded, the Court shall make a decision as to costs.
Under Article 134(1) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 211(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the appellant has been unsuccessful in his claims in the appeal and OHIM has applied for costs, the appellant must bear his own costs and pay those incurred by OHIM in the present proceedings.

On those grounds,
THE GENERAL COURT (Appeal Chamber),
hereby:

1.
Dismisses the appeal;

2.
Declares that Rhys Morgan is to bear his own costs and orders him to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) in the present appeal proceedings.

Jaeger
Martins Ribeiro
Van der Woude
Delivered in open court in Luxembourg on 26 November 2015.
[Signatures]
Table of contents

Background to the dispute

Proceedings at first instance and judgment under appeal

The content of the contested appraisal report

The breaches of procedure alleged before the Tribunal

The sixth, seventh, eighth and ninth pleas in law relied upon before the Tribunal

Procedure before the Court and forms of order sought

Appeal

The admissibility of the appeal

Substance

The first ground of appeal, alleging infringement of the obligation to base the general assessment on the official’s performance during the appraisal period as a whole

The second ground of appeal, alleging an error of law or a failure to state adequate reasons as regards the assessment of the infringement of essential procedural requirements claimed by the appellant

– The first limb, relating to the discrepancy between the appraisal interview and the appraisal report

– The second limb, relating to the retrospective introduction of a new criterion into the appraisal procedure

– The third limb, relating to the reporting officer’s failure to communicate the information required by the JEPC

– The fourth limb, relating to the failure to consult the appropriate co-signers

– The fifth limb, relating to the lack of an adequate statement of reasons for the decision of the reporting officer and the countersigning officer not to follow the JEPC’s opinion

The third ground of appeal, alleging an error of law relating to the principle of the protection of legitimate expectations

The fourth ground of appeal, alleging an error of law and a lack of a statement of reasons in the judgment under appeal for the rejection of the plea in law alleging infringement of the principle of equal treatment

The fifth ground of appeal, alleging a distortion of the clear sense of the evidence in relation to the existence of a misuse of powers

Costs
(
*1
)   Language of the case: English.