JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

20 November 2007

Case T-308/04

**Francesco Ianniello**

**v**

**Commission of the European Communities**

(Civil service – Officials – Career development report – 2001/2002 appraisal – Action for annulment – Action for damages)

**Application:**for annulment of the applicant’s career development report for the 2001/2002 appraisal and payment of compensation for the
non-material damage suffered.

**Held:**The decision adopting the applicant’s career development report for the 2001/2002 appraisal is annulled. The remainder of
the application is dismissed. The Commission is ordered to bear its own costs and to pay those of the applicant.

**Summary**

1.      *Plea of illegality – Scope – Measures the illegality of which may be pleaded*

*(Art. 241 EC)*

2.      *Officials – Staff Regulations – General implementing provisions*

*(Staff Regulations, Art. 110)*

3.      *Officials – Reports procedure – Joint Evaluation Committee – Composition*

*(Staff Regulations, Art. 43)*

4.      *Officials – Reports procedure – Joint Evaluation Committee – Requirement that members of the Joint Evaluation Committee who
are responsible for staff management and have interests incompatible with their position should not sit in the Committee –
Scope*

*(Staff Regulations, Art. 43)*

5.      *Officials – Reports procedure – Observance of the rights of the defence – Scope*

*(Staff Regulations, Art. 43)*

1.      Article 241 EC expresses a general principle conferring upon any party to proceedings the right to challenge, for the purpose
of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of
the institutions which form the legal basis of the decision under challenge, if that party was not entitled under Article
230 EC to bring a direct action challenging those acts by which it was thus affected without having been in a position to
ask that they be annulled. Article 241 EC thus aims to protect the individual against the application of an unlawful legislative
act, on the basis that the effects of a judgment containing a declaration of inapplicability are limited to the parties to
the dispute alone, and that that judgment does not affect the act itself which has become unchallengeable.

Since Article 241 EC is not intended to enable a party to contest the applicability of any measure of general application
in support of any action whatsoever, the scope of a plea of illegality must not go beyond what is necessary for the resolution
of the dispute. It follows from this that the general measure which it is sought to have declared unlawful must be applicable,
directly or indirectly, to the issue with which the application is concerned and that there must be a direct legal connection
between the contested individual measure and the general measure. The existence of such a connection may however be inferred
from the finding that the contested decision is based essentially on a provision of the measure which it is sought to have
declared unlawful, even though that measure did not formally constitute its legal basis.

(see paras 32-33)

See: 31/62 and 33/62 *Wöhrmann and Lütticke* v *Commission* [1962] ECR 501; 21/64 *Macchiorlati Dalmas* v *High Authority* [1965] ECR 175; 32/65 *Italy* v *Council and Commission* [1966] ECR 389; 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73 and 135/73-137/73 *Kortner and Others* v *Council and Others* [1974] ECR 177, paras 36 and 37; 92/78 *Simmenthal* v *Commission* [1979] ECR 777, para. 39; 262/80 *Andersen and Others* v *Parliament* [1984] ECR 195, para. 6; T‐6/92 and T‐52/92 *Reinarz* v *Commission* [1993] ECR II‐1047, para. 57; T‐177/94 and T‐377/94 *Altmann and Others* v *Commission* [1996] ECR II‐2041, para. 119; T‐146/96 *De Abreu* v *Court of Justice* [1998] ECR-SC I‐A‐109 and II‐281, paras 25 and 29

2.      The general implementing rules adopted under the first paragraph of Article 110 of the Staff Regulations may lay down criteria
capable of guiding the administration in the exercise of its discretionary power or of explaining more fully the scope of
provisions of the Staff Regulations which are not wholly clear. However, they may not lawfully, in any circumstances, lay
down rules which derogate from hierarchically superior provisions, such as the provisions of the Staff Regulations or general
principles of law.

(see para. 38)

See: T‐75/89 *Brems* v *Council* [1990] ECR II‐899, para. 29; T‐43/04 *Fardoom and Reinard* v *Commission* [2005] ECR-SC I‐A‐329 and II‐1465, para. 36 and the case-law cited therein

3.      Under Article 8(5) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission,
the task of the Joint Evaluation Committee is to ensure, without substituting its own appraisal of the work of the official
in question for that of the reporting officers, that the career development report has been drawn up fairly and objectively
and that it meets the usual evaluation standards, and that the procedures have been applied correctly. In the light of that
task, the grade of members of the Committee is not relevant, and, in particular, the mere fact that he is in the same grade
as the official concerned does not show that a member of the Joint Evaluation Committee has a conflict of interests that is
likely to compromise his impartiality.

(see paras 41-43)

See: T‐157/04 *De Bry* v *Commission* [2005] ECR-SC I‐A‐199 and II‐901, para. 49

4.      It follows from Article 8(1) and (6) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted
by the Commission, that the mere fact that a member of the Joint Evaluation Committee is responsible for staff management
does not place him under an obligation to stand down and be replaced by an alternate member when the Committee considers appeals
lodged by staff representatives. That obligation applies to members of the Joint Evaluation Committee only in so far as they
have interests which are incompatible with their duties. A purely abstract risk of a conflict of interests is not sufficient
for it to be concluded that a member of the Joint Evaluation Committee who is responsible for staff management actually has
interests which are incompatible with his duties.

(see para. 54)

5.      In the reports procedure established by the Commission, the fundamental principle of observance of the rights of the defence
must allow the individual concerned, during the appraisal procedure, to defend himself against any criticism of his conduct
which might be taken into account. However, the principle of observance of the rights of the defence does not mean that the
appeal assessor is limited in the consultations required for him to fulfil his task with due diligence. Thus, the appeal assessor
may be prompted to consult the superiors of the official under appraisal, without that consultation necessarily initiating
an exchange of arguments with the official in question. In that context, the appeal assessor may even ask the reporting officer
for explanations or further details concerning the assessments he has given in the official’s career development report. However,
the explanations or details provided must not substantially alter the content of the initial assessment given in the career
development report by that reporting officer. If they give rise to such an alteration, the appeal assessor must observe the
rights of the defence of the official in question by giving him the opportunity to submit his own comments on the reporting
officer’s new appraisal. In that situation, the comments already submitted by the same official in the earlier stages of the
evaluation procedure cannot be regarded as sufficient, since they were drawn up in relation to a different appraisal by the
reporting officer.

(see paras 70, 73-74)