Judgment — ECLI:EU:T:2017:893
Date: 2017-12-13
Language of the case: French
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded
Origin: Germany

summary, it follows that the applicant had the opportunity to put his point of view to the countersigning officer, but that he did not intend to take advantage of the dialogue he had entered into to explain the challenge he had made concerning the draft appraisal report, since it was limited to formal replies and even addressed a question entirely unrelated to his appraisal, which could be interpreted as a lack of interest in the dialogue which he now complains had not been sufficiently detailed. In such circumstances, the ECDC cannot be validly criticised for not having pursued that dialogue beyond the exchange of emails referred to in the previous paragraph of the present judgment. 82 That plea must therefore be dismissed as unfounded. The sixth plea in law, alleging infringement of Article 3(1) of the ECDC Implementing Rule 83 By his sixth plea, the applicant submits that the contested decision stems from an infringement of Article 3(1) of the ECDC Implementing Rule, in that the contested appraisal report was not established after consulting all the direct line managers under whose authority he had performed his duties during 2011. More specifically, he claims that Ms A was his line manager only until 30 October 2011, who was then succeeded by Ms B. Furthermore, on 1 January 2011, his line manager was Ms R, who stopped working from 10 February 2011, that latter date being put forward by the ECDC, but disputed by the applicant. 84 The ECDC disputes the merits of that plea. 85 As a preliminary point, it must be noted that the applicant’s contestation regarding the date of termination of Ms R’s employment is contradicted by the email he sent to Ms B on 5 January 2012 at 10.43 a.m., paragraph 2 of which states that Ms R had been his direct line manager until 9 February 2011, as well as the answer to the third and fourth questions relating to his working environment contained in his self-assessment, where he distinguished the period from 10 February to 31 October 2011. 86 That being the case, Article 3(1) of the ECDC Implementing Rule provides that the reporting officer is the direct line manager of the assessed job holder. Furthermore, it follows from Article 43 of the Staff Regulations that the appraisal of the official or staff member concerned must cover the whole of the reporting period and, accordingly, give rise to a consultation with the direct line managers under whom he worked for a significant period of time (see, to that effect, judgment of 13 September 2011, Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 85). 87 However, the particular circumstances of the present case must be taken into account. 88 On the one hand, as is apparent from the response to the eighth plea, the applicant’s appraisal procedure was abandoned in 2012 because of his refusal to participate in the appraisal interview unless his requirement that that interview be electronically recorded was fulfilled. In that regard, it should be pointed out that the ECDC Implementing Rule does not provide for such recording and that the applicant was offered the opportunity to be accompanied at that interview by a member of the Staff Committee or a person of trust, a proposition he declined. It is also relevant to point out, furthermore, that in accordance with the case-law referred to in paragraph 76 above, the very nature of an appraisal interview and its purpose imply direct contact between the staff member under appraisal and the reporting officer. Subsequently, the appraisal procedure was resumed in 2014, on the Ombudsman’s recommendation. 89 On the other hand, when that procedure was resumed, neither Ms R nor Ms B were still working at the ECDC. 90 In such circumstances, it is not unreasonable that the applicant’s draft appraisal report was drawn up by Ms A, who had been his direct line manager for the greatest part of the year concerned, namely from 10 February to 31 October 2011, whereas Ms R and Ms B were no longer present at the ECDC, Ms A having had, in addition, a comprehensive view of the applicant’s behaviour during the year 2011, since she had been involved, at the beginning of 2011, as countersigning officer of his appraisal report for the year 2010 and had been Ms B’s line manager from 1 November 2011. Moreover, the allegation that, in the light of Ms A’s medical training, she did not have the skills required to assess a lawyer is irrelevant, since the conduct which justified the assessment of the applicant’s overall performance in 2011 as unacceptable, as recalled in paragraphs 64 to 67 above, did not concern his competence as a lawyer. 91 Finally, it should also be noted, first, that as the said behaviour directly concerned Ms B, who had to report it to the director of the ECDC in the first days of January 2012, which resulted in the opening of an administrative procedure, it cannot be held likely that consultation with the latter could have resulted in a more favourable appraisal report. 92 Secondly, as regards the period from 1 January to 9 February 2011, during which Ms R was the applicant’s direct line manager, it has already been pointed out in paragraph 60 above that the contested appraisal report included a satisfactory assessment for the first part of 2011, so that consultation with Ms R could not have had a decisive influence on that report, and in paragraph 64 above that the facts which determined the assessment according to which the applicant’s overall performance for 2011 had been unacceptable was extremely serious, so that it could be excluded that the consultation with Ms R regarding her opinion on the short period during which the applicant had worked under her authority could have influenced the assessment in the report at issue. 93 That plea in law must therefore be dismissed as unfounded. The seventh plea, alleging infringement of the rights of the defence, a manifest error of assessment and a breach of the duty of care 94 By his seventh plea, the applicant claims that the contested decision is vitiated by an infringement of the rights of the defence, a manifest error of assessment and, in the alternative, a breach of the duty of care, in that his own self-assessment was not taken into account, in particular, (i) the details requested regarding two questions in the self-assessment form, (ii) his remark concerning the refusal to allow him to participate in training, possibly related to the management of his behaviour, and (iii), the excessive workload. 95 The ECDC disputes the merits of that plea. 96 As a preliminary point, it should be pointed out that, in accordance with Article 8 of the ECDC Implementing Rule, the applicant’s self-assessment had to be followed by the appraisal interview with his reporting officer, regarding which that self-assessment should have constituted a central theme. During that interview, the applicant, it is contended, had the opportunity to seek the clarifications he deemed necessary and to highlight the aspects that, from his point of view, were important to assess his performance during the year concerned. As is clear from the response to the eighth plea, the ECDC cannot be criticised for not having organised that interview. It is also apparent from the reply to that plea that, after the applicant had contested the draft appraisal report drawn up following the resumption of the appraisal procedure, in 2014, when he had been invited by an email from the countersigning officer of 10 October 2014, to provide her with a copy of his self-assessment, which he contended was not taken into consideration, the applicant merely stated, in his email of 15 October 2014, that that document should have been in the possession of the ECDC, which indicates, at the very least, a limited involvement in the smooth functioning of that dialogue. Finally, apart from the challenge, by email of 5 November 2014, of the draft appraisal report as approved by the countersigning officer, where he stated that his self-assessment had not been taken into consideration, ‘including the unusually heavy workload described therein’, the applicant had until then limited himself to arguing, without further specification, that this self-assessment had not been taken into account. 97 That said, as regards, first, the two questions to which the applicant claims he did not reply on the ground that they were imprecise, it should be noted, first, that, even though he stated that those questions seemed vague, he nevertheless answered the second. On the other hand, the wording of the other question (How are you able to influence your work and your work situation?) was not likely to render a reply impossible. Moreover, those two questions were already included in the self-assessment form for the year 2010, so that the applicant had had plenty of time, particularly in the context of the appraisal interview for the year 2010, to obtain clarification as to its scope. Finally, it would have been possible for him to address those questions in the appraisal interview for the year 2011. Accordingly, the fact that he did not express himself on those questions cannot constitute a breach of his rights of defence attributable to the ECDC. 98 Secondly, as regards the refusal to provide professional training, it must be held that that issue is irrelevant to the reasons for the negative assessment of the applicant’s overall performance for 2011, relating to his behaviour and not to his legal competence, since he does not claim that he had requested to be able to participate in behaviour management training, but merely mentions that such training exists. 99 Thirdly, with regard to the substantial workload alleged by the applicant, who was the only practicing lawyer from 1 June 2011, it should be noted that it may be held that his legal work had been considered satisfactory until problems arose connected to his behaviour with respect to his new direct line manager, Ms B. However, although the applicant’s workload must necessarily have been reduced once Ms B, who was herself a lawyer, took up duties, it was after she took up those duties that the behaviour of the applicant deteriorated. That question, therefore, is not relevant. In any event, a significant workload cannot render acceptable behaviour which is obstructive, insubordinate and conflictual, and which was the reason for the negative assessment of the applicant’s overall performance in 2011 and, more radically, for the early termination of his contract as a member of the contract staff in February 2012. 100 That plea in law must therefore be dismissed as unfounded. The ninth plea, alleging an infringement of the duty of care and breach of the rights of the defence 101 By his ninth plea, the applicant claims that the contested decision is vitiated by an infringement of the duty of care and a breach of the rights of the defence, in that the contested appraisal report is based exclusively on the allegations of Ms B, while, in an email of 31 May 2015, the applicant had drawn the ECDC’s attention to circumstances that could cast doubt on those allegations, namely that Ms B was recruited in 2011 on the basis of inaccurate information as to her professional experience and that she had been dismissed without notice in 2014. 102 The ECDC disputes the merits of that plea. 103 It should be noted that it is apparent, from the reasoning given by the countersigning officer to support the confirmation of the applicant’s draft appraisal report, that the insubordination alleged against the applicant did not concern Ms B only. That reasoning refers to a meeting held in December 2011 during which the director of the ECDC was compelled to confirm instructions given to the applicant by Ms B, his direct line manager, which the applicant had persisted in refusing to carry out even though they had already been confirmed by Ms A, Ms B’s direct line manager. That this meeting was held, on 21 December 2011, is confirmed in paragraph 22 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38). The applicant’s persistence in refusing to carry out instructions which he had been given even after they were confirmed, at his request, by his line manager’s immediate superior, pursuant to Article 21a of the Staff Regulations, was supported by the findings of the final report of the investigation carried out in January 2012 concerning the acts of insubordination alleged against the applicant, as was held in paragraph 116 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38). 104 Furthermore, the applicant’s email of 31 May 2015 to which he refers was sent to the ECDC not in the context of the appraisal procedure, but in connection with the implementation of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), and the applicant does not claim to have made any reference to it in connection with the appraisal procedure. 105 Finally, contrary to the applicant’s submission, the facts which the applicant puts forward in this plea, assuming they are true, cannot alter the nature of the facts which determined the negative assessment set out in the contested appraisal report, nor mitigate the seriousness of the behaviour for which he has been criticised. It is common ground that Ms B was the direct line manager of the applicant and the fact, noted above, that the instructions not carried out by him had been confirmed by the management pursuant to Article 21a of the Staff Regulation suffices to demonstrate that those instructions were justified and should have been carried out. 106 It is also apparent from paragraphs 197 to 203 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), that the Civil Service Tribunal itself found that the applicant had questioned instructions that were justified, that were not in any way peculiar and which normally were not such as to give rise to the exchange of multiple emails or the questioning of the professional capacities of the line manager who had given them and that several emails of the applicant, issued between 16 and 20 December 2011, sufficed to show that the applicant’s management had not committed a manifest error of assessment in considering, in the decision to terminate the applicant’s contract, that he had serious difficulties in accepting management decisions and behaved in an obstructive and provocative manner, which had resulted in an irreparable breakdown in the relationship of trust between him and the ECDC. 107 That plea in law must therefore be dismissed as unfounded. The 11th plea, alleging a manifest error of assessment and failure to state reasons 108 By his 11th plea, the applicant claims that the contested decision is vitiated by an infringement of Article 22a of the Staff Regulations, in that Ms A and Ms M participated in the appraisal procedure, whereas they should have been excluded on the ground that they were involved in possible irregularities surrounding the hiring of an interim staff member which the applicant had reported to the director of the ECDC. 109 The ECDC disputes the merits of that plea. 110 Article 22a(3) of the Staff Regulations lays down the rule that, in so far as he has acted in good faith, an official who has informed his superiors of facts of which he has become aware in the course of or in connection with the performance of his duties which give rise to a presumption of the existence of possible illegal activity, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union, shall not suffer any prejudicial effects on the part of the institution. 111 It should first of all be pointed out that, as the applicant states in paragraph 71 of his application and as is apparent from paragraphs 23 and 52 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), the facts reported by the applicant to the director of the ECDC were brought by the latter to the attention of the European Anti-Fraud Office (OLAF), which decided, on 21 May 2012, not to open an investigation in view of the weakness of the evidence of any irregularities. The applicant was informed of that decision by a letter from the director of the ECDC of 29 June 2012, in which the latter informed him, moreover, that an examination of the facts had not made it possible to identify any illegal activity. Whereas that circumstance does not preclude any possibility that the persons directly or indirectly implicated in the facts reported by the applicant may have developed some bitterness towards him, it does in any event suggest that the persons concerned were not seriously shaken by that reporting and its consequences. 112 Next, it is settled case-law that Article 22a of the Staff Regulations does not offer an official protection against any decision capable of adversely affecting him but only against decisions connected with the accusations made by him (see judgment of 11 July 2013, AN v Commission, F‑111/10, EU:F:2013:114, paragraph 90 and the case-law cited). It is therefore incumbent on the applicant to establish the existence of such a link in the present case, possibly in the form of a set of precise and consistent evidence. 113 In the present case, the applicant implicitly and exclusively bases the present plea on the existence of a presumption of misuse of powers. However, such a presumption is lacking. It should be recalled that neither the existence of a possible irritation of a superior towards a person who works under his authority nor even the existence of a direct complaint by such a person against the superior who must assess his professional performance cannot, as such, without more, call the superior’s impartiality into question (see, to that effect, judgment of 30 June 2015, Z v Court of Justice, F‑64/13, EU:F:2015:72, paragraph 71 and the case-law cited). 114 Moreover, it should be noted, first, that the facts referred to in paragraphs 103 and 106 above, which the Civil Service Tribunal found to be sufficient to support the accusations relating to the applicant’s insubordinate, obstructive and conflictual behaviour, were prior to 22 December 2011, the date on which the applicant first indicated to the director of the ECDC the alleged irregularities reported by him. Secondly, as follows in particular from the response to the fourth and fifth pleas, the proven character of the facts which determined the negative assessment in the contested appraisal report makes it possible to exclude that that report had been drawn up for purposes other than assessing the applicant’s competence, performance and conduct in the service. 115 The present plea must therefore be rejected as unfounded and, consequently, the action as a whole is dismissed. Costs 116 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 117 Since the applicant has been unsuccessful, he must, having regard to the form of order sought by the ECDC, be ordered to pay the costs. On those grounds, THE GENERAL COURT (First Chamber), hereby: 1. Dismisses the action; 2. Orders CJ to pay the costs. Pelikánová Nihoul Svenningsen Delivered in open court in Luxembourg on 13 December 2017. E. Coulon I. Pelikánová Registrar President * Language of the case: English.