# C_2008037EN.01001201.xml

| 9.2.2008 | EN | Official Journal of the European Union | C 37/12 |
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9.2.2008

EN

Official Journal of the European Union

C 37/12

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Appeal brought on 27 November 2007 by Philippe Combescot against the judgment delivered by the Court of First Instance (Second Chamber) in Case T-249/04 Philippe Combescot v Commission

(Case C-525/07 P)

(2008/C 37/15)

Language of the case: Italian

Parties

Appellant: Philippe Combescot (represented by: A. Maritati and V. Messa, avvocati)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

| — | declare, by varying the decision of the Court of First Instance delivered on 12 September 2007 in Case T-249/04, that the career development report (‘the CDR’) drawn up by Mr M, despite his being completely unsuitable to perform, as in fact he did, the role of hierarchical superior responsible for appraising Mr Combescot's professionalism, is unlawful; recognise that unsuitability arising from the serious and irremediable enmity between the applicant and his hierarchical superior, latterly implicitly recognised by Mr M himself; accordingly, recognise Mr Combescot's entitlement to compensation in respect of non-material damage, damage to physical and mental health and damage to his professional life and career, to be assessed in a sum not less than EUR 100 000; |
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declare, by varying the decision of the Court of First Instance delivered on 12 September 2007 in Case T-249/04, that the career development report (‘the CDR’) drawn up by Mr M, despite his being completely unsuitable to perform, as in fact he did, the role of hierarchical superior responsible for appraising Mr Combescot's professionalism, is unlawful; recognise that unsuitability arising from the serious and irremediable enmity between the applicant and his hierarchical superior, latterly implicitly recognised by Mr M himself; accordingly, recognise Mr Combescot's entitlement to compensation in respect of non-material damage, damage to physical and mental health and damage to his professional life and career, to be assessed in a sum not less than EUR 100 000;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments

The dispute relates to the preparation of the CDR for the period from 1 July 2001 to 31 December 2002, which was held to be lawful. The applicant challenges the conclusions reached by the Court of First Instance inasmuch as it regards the CDR as unlawful because it was prepared by an individual, Mr M, who was moved by a deep loathing of Mr Combescot, since the latter had reported very serious management irregularities committed at the Delegation in Guatemala by the same Mr M. Following those complaints, the institution sent an inspection to Guatemala and, subsequently, as a result of the complaint brought by Mr Combescot, OLAF decided on 20 September 2004 to open an enquiry, concluded by the final report of 30 May 2006 (‘the OLAF Report’), admitted as evidence in the present proceedings, together with the report drawn up by the inspection committee sent out in 2002. By the present appeal, counsel for Mr Combescot ask the Court to vary the decision of the Court of First Instance of the European Communities in so far as it excludes the unlawfulness of the CDR and, accordingly, rules out the applicant's entitlement to compensation in damages. By that appeal the applicant asks the Court, therefore, to find and declare that, as a result of the incomplete and thus erroneous and in any event unlawful preparation of the CDR for 2001-2002, Philippe Combescot has suffered very serious harm to his career and to his professional image and that, in any event, the assessment in the CDR, placed in a broader context of abuses of power and disparaging conduct of hierarchical superiors, has caused suffering and mental anguish which has in turn caused a severe state of depression, as substantiated in the case-file and, above all, verified by the institution's own experts. The applicant therefore asks the Court to make an overall assessment of the factual circumstances surrounding the matter, considering them all to be relevant in order to declare the unlawfulness of the CDR and therefore, declare that the applicant is entitled to compensation in damages for the harm suffered.

The applicant complains that the decision of the Court is contradictory, in that it states how the objectives of independence and integrity are to be regarded as binding in all situations in which an employee must express an opinion on a given matter and such an employee should not therefore find himself in a situation which, irrespective of the objectivity and fairness of the opinion, may appear to lack independence and objectivity in the eyes of third parties, yet none the less reaches conclusions, in the case of M, which are completely incomprehensible. The applicant also complains that the decision is contradictory, in so far as it recognises that the initiatives taken by Mr Combescot, once he had taken office as Advisor resident in Guatemala, had caused at the very least an unpleasant situation for Mr M, but that notwithstanding, takes the view that that situation was not such as to place Mr M in a situation in which it was completely incompatible for him to perform the task of assessor in accordance with the principles of impartiality and neutrality. It points out that the preparation of the CDR involves the making of a discretionary evaluation, so that any consideration as to the substance of the evaluation itself is of no conclusive value and is not suitable for confirming and/or disproving the basic fact which is that Mr M made the assessment in the CDR despite the obvious and serious enmity in his relationship with Mr Combescot. In that regard, it points out that the presence of a person as a co-appraisor who is completely unconnected with the relationship between Mr Combescot cannot be advanced as a solution. Accordingly, it criticises the content of the CDR point by point. Finally, the applicant applies for measures of enquiry.

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