JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

25 April 2007

Case F-71/06

**Maddalena Lebedef-Caponi**

**v**

**Commission of the European Communities**

(Officials – Appraisal – Career development report – 2004 appraisal – General Provisions for Implementing Article 43 of the Staff Regulations – Article 26 of the Staff Regulations)

**Application:**brought under Articles 236 EC and 152 EA, in which Ms Lebedef-Caponi seeks annulment of her career development report for
the period from 1 January 2004 to 31 December 2004.

**Held:**The action is dismissed. Each party is ordered to bear its own costs.

**Summary**

1.      *Officials – Actions – Prior administrative complaint – Time-limits*

*(Staff Regulations, Arts 25, 43 and 90(2))*

2.      *Officials – Reports procedure – Career development report – Drawing up – Officials with staff representation duties*

*(Staff Regulations, Art. 43)*

3.      *Officials – Reports procedure – Career development report – Score not as high as previous report*

*(Staff Regulations, Arts 25, second para., and 43)*

4.      *Officials – Reports procedure – Observance of the rights of the defence*

*(Staff Regulations, Arts 26, first and second paras, and 43)*

5.      *Officials – Reports procedure – Career development report*

*(Staff Regulations, Art. 43)*

1.      For a decision to be duly notified, within the meaning of Article 90(2) of the Staff Regulations, it must not only have been
communicated to its addressee, but the addressee must also have been able to have effective knowledge of its content. Therefore,
the information, sent electronically to the official under appraisal, that the decision making his staff report definitive
has been adopted and that it is accessible on the institution’s internal computer system, is not in itself sufficient to set
the time-limit for complaints running.

The fact that the official is present at his place of work does not, in the absence of a document proving that the message
in question was received or opened in his electronic mailbox, provide any ground for inferring with sufficient certainty,
and is therefore not equivalent to proof, that the official has actually had knowledge of the contested decision.

(see paras 29-31, 34)

See:

5/76 *Jänsch* v *Commission* [1976] ECR 1027, para. 10

T-14/99 *Kraus* v *Commission* [2001] ECR-SC I‐A‐7 and II‐39, para. 22; T-507/04 *Bravo-Villasante* v *Commission* [2005] ECR-SC I‐A‐361 and II‐1609, para. 29; T-311/04 *Buendía Sierra* v *Commission* [2006] ECR II‐4137, para. 121

2.      It is apparent from Article 6(3)(c) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted
by the Commission, that staff representation activities, even for officials who are not seconded on a full-time basis, must
also be taken into account in the staff report, by prior consultation with the ad hoc staff reports group and, in the event
of an appeal, with the joint appeals committee.

The purpose of consulting the ad hoc group is to provide the reporting officer with the information he needs to assess the
duties which the official under appraisal performs as a staff representative, given that those duties are regarded as forming
part of the services which such an official is required to provide in his institution. Furthermore, under Article 6(3)(c)
of those General Implementing Provisions, the reporting officer is required to consult the ad hoc group before drawing up
the preliminary draft report.

It follows that the reporting officer is required to take account of the opinion of the ad hoc group when drawing up the career
development report of an official performing staff representation activities. However, he is not obliged to follow that opinion.
If he does not, he must then explain the reasons which led him to depart from it. Simply attaching the opinion to the career
development report is not sufficient to be regarded as satisfying the requirement to provide a statement of reasons.

Where an irregularity committed by the reporting officer has been rectified by the countersigning officer at the review stage,
the definitive career development report is not unlawful.

(see paras 43-46, 48)

See:

T-326/01 *Lebedef* v *Commission* [2003] ECR-SC I‐A‐273 and II‐1317, paras 53 to 55 and 61; T-43/04 *Fardoom and Reinard* v *Commission* [2005] ECR-SC I‐A‐329 and II‐1465, para. 90

3.      The statement of reasons for a career development report may not be regarded as seriously and manifestly inconsistent, to
the point of preventing the applicant from assessing its validity with full knowledge of the facts, and the Court from reviewing
its regularity, in a case where the summary and assessments are not entirely consistent but where, in the light of the reporting
officer’s overall comments, the official has been able to understand the reason why the assessments and the overall score
are lower than in the previous career development report.

(see paras 64-66)

See:

T-23/91 *Maurissen* v *Court of Auditors* [1992] ECR II‐2377, para. 47

4.      The fundamental principle that the rights of the defence must be observed cannot be interpreted, in the field of the appraisal
of European Communities staff, as imposing any obligation to give prior warning before the procedure leading to such an appraisal
is initiated. That finding is not affected by the first and second paragraphs of Article 26 of the Staff Regulations in so
far as they make the reliance, as against an official, of all reports on his ability, efficiency and conduct subject to the
requirement of being communicated to the individual concerned before being placed on his personal file. In fact, the corresponding
provisions, the purpose of which is to guarantee the official’s right of defence, relate to documents which already exist.
They preclude, during the appraisal procedure, such documents from being taken into account to the detriment of the official
under appraisal without having been communicated to him before being placed on his personal file. They do not require documents
formalising any criticism of the conduct of the individual concerned to be prepared beforehand.

Thus, the reporting officer does not breach the principle that the rights of the defence must be observed or Article 26 of
the Staff Regulations if he includes, in a staff report, facts which are unfavourable to the official under appraisal without
any document referring to those facts in his personal file.

(see paras 71-74)

See:

C-344/05 P *Commission* v *De Bry* [2006] ECR I‐10915, paras 39, 40 and 41 and the case-law cited therein

5.      In the staff appraisal system established by the Commission, under which targets set by the reporting officer in agreement
with the official under appraisal constitute the reference basis for assessing his efficiency, the reporting officer is justified
in taking account of the official’s refusal to perform certain tasks required to achieve one of those targets, even if they
are not included in the official’s job description as set out in the career development report, since the official has not
disputed the setting of that target with the countersigning officer, as he was entitled to do, and the target in question
corresponds to tasks which officials in the same grade as the applicant are commonly required to perform.

(see paras 77-79)