# C_2018042EN.01004402.xml

| 5.2.2018 | EN | Official Journal of the European Union | C 42/44 |
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5.2.2018

EN

Official Journal of the European Union

C 42/44

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Action brought on 11 December 2017 — Pethke v EUIPO

(Case T-808/17)

(2018/C 042/62)

Language of the case: German

Parties

Parties

Applicant: Ralph Pethke (Alicante, Spain) (represented by: H. Tettenborn, lawyer)

Applicant:

Defendant: European Union Intellectual Property Office

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul the applicant’s 2016 appraisal report in the version which was notified to him on 10 April 2017; |
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annul the applicant’s 2016 appraisal report in the version which was notified to him on 10 April 2017;

| — | annul, as relevant, the Decision of the Management Board of EUIPO on the complaint under Article 90(2) of the Staff Regulations of Officials of the European Union of 18 October 2017; |
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annul, as relevant, the Decision of the Management Board of EUIPO on the complaint under Article 90(2) of the Staff Regulations of Officials of the European Union of 18 October 2017;

| — | order EUIPO to pay the costs of the proceedings. |
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order EUIPO to pay the costs of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

First plea in law: Error of appraisal on the part of the applicant’s immediate superior

| — | The applicant claims that his reporting officer undertook no independent assessment or critical appraisal of the Executive Directive’s contribution to the report regarding the applicant’s performance during the part of the period of assessment from 1 January 2016 to 17 October 2016 and thereby infringed Commission Decision No C(2013) 8985 final of 16 December 2013 laying down general provisions for implementing Article 43 of the Staff Regulations and implementing the first paragraph of Article 44 of the Staff Regulations and EUIPO’s staff assessment instructions. |
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The applicant claims that his reporting officer undertook no independent assessment or critical appraisal of the Executive Directive’s contribution to the report regarding the applicant’s performance during the part of the period of assessment from 1 January 2016 to 17 October 2016 and thereby infringed Commission Decision No C(2013) 8985 final of 16 December 2013 laying down general provisions for implementing Article 43 of the Staff Regulations and implementing the first paragraph of Article 44 of the Staff Regulations and EUIPO’s staff assessment instructions.

Second and third plea in law: Appeal body’s lack of jurisdiction to decide on the complaint and lack of impartiality

| — | The Executive Director cannot be regarded as an independent appeal body as far as concerns the applicant’s appraisal report procedure since the Executive Directive played a decisive role in the drawing up of that report. EUIPO’s staff assessment instructions provide that, if the Executive Director acts as reporting officer, the appeal assessor is to be a committee. |
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The Executive Director cannot be regarded as an independent appeal body as far as concerns the applicant’s appraisal report procedure since the Executive Directive played a decisive role in the drawing up of that report. EUIPO’s staff assessment instructions provide that, if the Executive Director acts as reporting officer, the appeal assessor is to be a committee.

Fourth plea in law: Arbitrary termination of the complaint dialogue

| — | An ordinary complaint dialogue was not held, in particular due to an arbitrary termination of the dialogue by the Executive Director, which constitutes an infringement of the rules of the complaints procedure, namely the Commission Decision and the staff assessment instructions adopted by EUIPO pursuant to that decision. There was no effective administrative pre-contentious legal protection. |
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An ordinary complaint dialogue was not held, in particular due to an arbitrary termination of the dialogue by the Executive Director, which constitutes an infringement of the rules of the complaints procedure, namely the Commission Decision and the staff assessment instructions adopted by EUIPO pursuant to that decision. There was no effective administrative pre-contentious legal protection.

Fifth plea in law: Failure to state reasons in the appraisal report

| — | The Executive Director’s contribution, and therefore also the 2016 appraisal report itself, substantially fails to state reasons, which, to a certain degree, makes it impossible for applicant to evaluate it. The Executive Director’s appraisal of the applicant’s performance lacks substance. The appraisal is in large part implausible. The applicant’s performance as manager of the Operations Department was assessed as significantly poorer than, almost without exception, all previous appraisals of the applicant. The reasons given do not meet the resulting higher standard required. |
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The Executive Director’s contribution, and therefore also the 2016 appraisal report itself, substantially fails to state reasons, which, to a certain degree, makes it impossible for applicant to evaluate it. The Executive Director’s appraisal of the applicant’s performance lacks substance. The appraisal is in large part implausible. The applicant’s performance as manager of the Operations Department was assessed as significantly poorer than, almost without exception, all previous appraisals of the applicant. The reasons given do not meet the resulting higher standard required.

Sixth plea in law: Manifest errors of assessment

| — | There are manifest errors of assessment in the 2016 appraisal report containing the Executive Director’s contribution in that it provides incomplete and arbitrarily selected performance data. The assessment of the material facts is completely implausible. |
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There are manifest errors of assessment in the 2016 appraisal report containing the Executive Director’s contribution in that it provides incomplete and arbitrarily selected performance data. The assessment of the material facts is completely implausible.

| — | The appraisal report itself contains no analysis of the figures relating to the applicant’s performance as far as concerns the period in question, since the applicant’s reporting officer did not expressly analyse those figures in the appraisal report. |
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The appraisal report itself contains no analysis of the figures relating to the applicant’s performance as far as concerns the period in question, since the applicant’s reporting officer did not expressly analyse those figures in the appraisal report.

| — | The Executive Director’s contribution to the appraisal report, and therefore necessarily the appraisal report itself, contains untruths and provides incomplete and unilaterally-determined biased performance data. The Executive Director relies on arbitrary and irrelevant bases of assessment and generally does not refer to the key indicators set out in the objectives. The Executive Director’s contribution distorts the material facts to such an extent that it in no way reflects the applicant’s performance. It cannot be legitimate to make a negative assessment at the end of a year without having given the applicant any opportunity to address any failings in his performance. |
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The Executive Director’s contribution to the appraisal report, and therefore necessarily the appraisal report itself, contains untruths and provides incomplete and unilaterally-determined biased performance data. The Executive Director relies on arbitrary and irrelevant bases of assessment and generally does not refer to the key indicators set out in the objectives. The Executive Director’s contribution distorts the material facts to such an extent that it in no way reflects the applicant’s performance. It cannot be legitimate to make a negative assessment at the end of a year without having given the applicant any opportunity to address any failings in his performance.

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