Information;Judgment — ECLI:EU:T:2020:420
Date: 2020-09-23
Language of the case: English
Court formation: Sixth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Action for damages - unfounded;Staff cases - successful

summary of the prospectus peer review report (‘the summary at issue’). She added that the review of the accuracy of the information contained in that report (‘the report concerned’) and its editorial presentation were unsatisfactory. More specifically, she referred to factual errors in the tables and tables of contents of the on-site inspection reports. 96 The arguments raised by the applicant cannot render implausible the assessments made by the reporting officer with regard to the note at issue and the report concerned. 97 In the first place, as regards the note at issue, it should be observed that the applicant puts forward, in essence, three arguments. 98 First, the applicant claims that it was the very first time that he had to draft a note for a PSM and that he had not yet participated in such meetings. 99 In that regard, it should be noted that the PSM is a weekly meeting of the ESMA management team that reviews draft documents for the BoS and gives instructions to ESMA staff about them. 100 Even if the applicant was required to prepare a note for a PSM for the first time and he had not participated in such a meeting previously, that could not call into question the assessment relating to the note at issue in the 2016 appraisal report. The applicant had been serving as a senior officer at ESMA for several years and was therefore familiar with the applicable procedures and with the expectations held of a senior officer. Accordingly, the task in question falls within a context known to the applicant. 101 In any event, it is common ground that the applicant had already participated in a PSM in May 2014. In addition, it is not disputed that the applicant was asked, in 2014, to draft a note setting out the findings of a peer review on best execution and the procedure to be followed in the context of a PSM. 102 Consequently, the applicant’s first argument cannot succeed. 103 Second, the applicant submits that the note at issue, setting out the main findings of the report concerned, had been approved by the coordinator of the Assessment Group and by that group itself and that its members were, except for him, prospectus field experts. 104 In that regard, it should be noted that the reporting officer did not criticise the main findings reached by the Assessment Group, but criticised the applicant for the fact that his personal assessment of those findings was deficient. Consequently, it is irrelevant whether the main findings of the report concerned had been approved by the coordinator of the Assessment Group or by that group itself. Furthermore, in so far as the applicant argues that the members of that group had also approved the note at issue itself, it is sufficient to observe that that fact does not in itself mean that the assessment set out in the 2016 appraisal report is vitiated by a manifest error of assessment. Since it was an internal note, it was exclusively for the applicant’s line managers to assess, in the light of the objectives pursued by that note, the quality of the applicant’s performance in the exercise of his duties. 105 Consequently, the applicant’s second argument cannot succeed. 106 Third, the applicant submits that, in the context of the PSM, he did not himself have the opportunity to present the note at issue or to reply to questions. In addition, he submits that his reporting officer made no comment on that note before it was presented to the PSM. He also claims that it has not been demonstrated (i) that his reporting officer had submitted comments on the note at issue prior to the PSM and (ii) that ESMA’s Policy Officer, acting as secretary of the PSM, had sent him critical remarks on that note by email. 107 In that regard, it should be recalled that it is apparent from the case-law cited in paragraph 91 above that it is for the applicant to adduce sufficient evidence to make the findings of the administration implausible. 108 In the present case, the applicant’s arguments consist of allegations which are not supported by any evidence. The applicant, criticising the lack of prior comments on the note at issue by his reporting officer, does not submit, in particular, any evidence from which it could be concluded that he had sent that note to the latter for possible comments before it was communicated to the secretariat of the PSM. 109 In addition, it is apparent from the documents before the Court that both the secretary of the PSM and the applicant’s reporting officer briefly took a position on the note at issue before the PSM was held, in the course of which that note was discussed, namely on 25 April 2016. It should also be observed that the applicant does not dispute that his reporting officer was on leave the week preceding the PSM in question. Accordingly, she cannot be criticised for not having submitted her first comments on the note at issue before her first day of work following her leave, namely on 25 April 2016. Furthermore, it is apparent from the documents before the Court that it was open to the applicant to request the inclusion of the note at issue at the PSM on 2 May 2016, which would have enabled him, as ESMA argues, to obtain the comments of his reporting officer, which, moreover, he did not do. 110 Lastly, the applicant has not established that, in the context of the PSM, he did not have the opportunity to present the note at issue or to reply to questions. 111 Consequently, the applicant’s third argument cannot succeed. 112 In those circumstances, the arguments put forward by the applicant in relation to the note at issue are not capable of establishing the existence of a manifest error of assessment. 113 In the second place, as regards the report concerned, the applicant puts forward, in essence, five arguments. 114 First, the applicant claims that it was wrongly claimed, in the 2016 appraisal report, that the main part of the report concerned had been redrafted for the BoS. He states that certain changes were made to the summary at issue, but not to the report itself. 115 In that regard, it should be noted that the assessment set out in the 2016 appraisal report relating to the restructuring and redrafting of the report concerned relates, in essence, to the summary of that report (see paragraph 95 above). 116 Admittedly, the reporting officer’s criticism also relates to shortcomings connected with the review of the accuracy of the information contained in the report concerned and with its editorial presentation, which were compensated by the applicant’s colleagues and the reporting officer herself. However, those observations do not concern a redrafting of the text of the report concerned in its entirety. 117 The applicant’s first argument is therefore based on a misreading of the 2016 appraisal report and cannot, therefore, succeed. 118 Second, the applicant claims that the summary at issue had been approved by the Assessment Group and had been reviewed by a member of that group who was a native English speaker, and a member of an NCA. 119 In that regard, it should be noted that it is apparent from the documents before the Court, and in particular from an email sent to the applicant by ESMA’s executive director on 16 May 2016, that the main weaknesses noted in the summary at issue related to the drafting quality and, as regards its content, more particularly, to the limited findings drawn from the peer review concerned. That is also apparent, in essence, from an email sent to the applicant by his reporting officer on 23 March 2016. It should also be pointed out that the applicant, as the rapporteur for that review for ESMA, had been responsible for drafting the summary at issue, which he does not dispute. In addition, it should be noted that, in the context of the first objective, the applicant had been clearly asked to focus on the drafting quality of the report concerned and on the ability to elaborate on the findings of that report. 120 Moreover, it is apparent from a document submitted by ESMA that the summary at issue underwent considerable changes between the original version prepared by the applicant and its final version. 121 In those circumstances, the applicant’s argument that the summary at issue was approved by the Assessment Group and was revised by an English-speaking member of that group cannot call into question the assessments in the 2016 appraisal report. 122 Third, the applicant claims, in essence, that ESMA had decided to change the structure of the summary, but not its content. 123 In that regard, it is sufficient to note that it is apparent from the documents before the Court that, at its meeting of 25 May 2016, the BoS decided that the summary at issue should be improved. Since that finding necessarily has an impact on the content of the summary, the applicant’s argument cannot succeed. 124 Fourth, the applicant claims that the part of the summary at issue criticised by the reporting officer consisted of only four pages and that the other part of that summary, containing a summary of the findings of the report concerned and amounting to four and a half pages, had not been mentioned in the 2016 appraisal report. He states that approximately 90% of that report was approved by the BoS, which indicates that the final product was of very good quality. 125 In that regard, it should be noted that, as ESMA states, the report concerned was the result of collective work, to which several experts in the Assessment Group concerned contributed. Moreover, it should be recalled, as is apparent from the first objective set for the applicant (see paragraph 94 above), that the applicant, as rapporteur, had the task of coordinating the data and texts produced by others and to draft the summary at issue. Therefore, the reporting officer was right to focus, in the 2016 appraisal report, on the applicant’s direct input on the collective work of drawing up the report concerned. 126 Fifth, as regards the tables annexed to the report concerned (‘the tables at issue’), the applicant submits that they had been sent to all the NCAs for verification and that none of the NCAs had pointed to any factual errors in those tables. In addition, he draws attention to the existence of problems in the formatting and loss of data caused by the conversion of the PDF format tables following the departure of a colleague who was responsible for those tables. He states that the reporting officer was aware of those difficulties. He also argues that he cannot be criticised for work which was not entrusted to him. He adds that the reporting officer had asked other colleagues, in his absence and without his being aware, to deal with those tables. 127 In that regard, it should be noted that the reporting officer criticised the applicant for the fact that the review of the accuracy of the information in the report concerned was unsatisfactory and referred, by way of example, to factual errors in the tables at issue (see paragraph 95 above). 128 As was already mentioned in paragraph 125 above, the applicant, as rapporteur, had the task of coordinating the data and texts provided by the experts on the subject under review. Therefore, the reporting officer cannot be criticised for having considered that the applicant was also responsible, as a diligent rapporteur, for checking the data in the tables at issue before the report concerned was sent for approval. He should have detected, at the very least, obvious errors, without such a task being expressly allocated to him. In that context, it should be noted that certain errors could be easily identified, as is apparent from an email from an ESMA employee which is included in the documents before the Court. 129 Furthermore, the applicant has not adduced any evidence to support the conclusion that his reporting officer was aware of any difficulties connected with compiling the tables at issue. 130 As regards the verifications carried out by other persons at the request of the reporting officer, it should be noted that they took place following discussion of the report concerned within the BoS, and thus after the applicant submitted the report, in order to respond to shortcomings raised by an employee of ESMA in connection with the finalisation of that report. Since it is common ground that the applicant was absent at that time, the reporting officer cannot be criticised for not entrusting that task of verification to him. 131 In those circumstances, the fifth argument concerning the report concerned is also incapable of calling into question the assessments set out in the 2016 appraisal report. 132 In the light of all the foregoing, it must be held that the arguments put forward by the applicant as regards the assessments relating to the first objective set for him are not capable of establishing the existence of a manifest error of assessment. (ii) The second objective 133 It is apparent from the 2016 appraisal report that the second objective set for the applicant was to follow up peer reviews on the implementation of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1) (‘the MiFID’), and concerning, more specifically, the rules of conduct and best execution. 134 To that end, two performance indicators were identified. 135 According to the first indicator concerning the peer review of the MiFID rules of conduct, the applicant was required to draft follow-up letters to be sent to non-compliant authorities, entailing a review by ESMA expert staff, by early June, to analyse the responses and to draft a note for ESMA’s Supervisory Convergence Standing Committee (‘the SCSC’) for the end of October in order to propose a way forward. 136 According to the second indicator relating to the peer review on best execution of the MiFID, the applicant was asked to prepare a note for the SCSC members, which entailed a review by ESMA expert staff, explaining why a follow-up might not be appropriate in view of the BoS meeting in July 2016. 137 As regards the second objective, the reporting officer stated, in the 2016 appraisal report, that the applicant’s work was characterised by inadequate planning and considerable delays. She stated that the letters referred to in the first indicator had had to be postponed by at least two months and that the work referred to in the second indicator had had to be temporarily handed over to another colleague in order to ensure that progress was made. In addition, while emphasising the positive aspects of the applicant’s work, the reporting officer observed that the applicant’s work had required fundamental amendments and redrafting. More specifically, she noted, in the context of the second objective, weaknesses relating to the accuracy and relevance of the analysis and the ability to deal with complex issues. 138 The arguments raised by the applicant cannot render those assessments implausible. 139 In that respect, in the first place, as regards the arguments put forward by the applicant in response to the lack of planning and the delays in carrying out tasks alleged against him, it should be noted, first, that, apart from the fact that the applicant does not specify which of the two indicators referred to in the second objective is concerned by his argument that, in view of the length of the NCAs’ responses, he was asked to make adjustments to the planned timetable, he has not established that an extension had been granted to him by the SCSC and the BoS, for the reasons that he states. 140 In addition, in so far as, by his argument, the applicant refers to the alteration to the planned timetable for the follow-up of the peer review on best execution of the MiFID, it should be noted that it is apparent from the reporting officer’s notes of the mid-term dialogue meeting that the delay for which the applicant is criticised as regards the second indicator, namely the failure to submit a draft note in timely fashion for the BoS meeting in July 2016, was caused by the applicant himself and that, accordingly, the timetable had to be modified and the follow-up work at issue had to be temporarily reallocated to another colleague, something which the applicant does not explicitly dispute. Furthermore, at that time, the length of the NCAs’ responses, due by the end of September 2016, was not yet known and could not therefore be the main reason for altering the initial work timetable connected with the follow-up to the peer review concerning best execution of the MiFID. 141 Second, in so far as the applicant claims that the follow-up letters to the peer review concerning the MiFID rules of conduct, referred to in the first indicator of the second objective, had been drawn up at the beginning of June 2016, as indicated in that objective, and that the delay in sending those letters had been caused by the reporting officer, it is sufficient to recall that it is not disputed that the applicant sent a draft of those letters to his reporting officer on 6 June 2016 and, thus, within the period provided for in the first indicator of the second objective. However, it is apparent from the reporting officer’s notes of the mid-term dialogue meeting that the letters in question could not be sent out until September 2016, since they had to be substantially redrafted. In addition, it is apparent from the documents before the Court that the drafts of those letters were in fact significantly amended by the reporting officer. Accordingly, in view of the deficiencies in the drafts of those letters, as they appear from the documents before the Court, and in the absence of any evidence adduced by the applicant to support the conclusion that those deficiencies cannot be attributed to him, it must be held that the assessments at issue are not vitiated by a manifest error of assessment. 142 In the second place, as regards the second indicator of the second objective, it should be noted that it is stated in the 2016 appraisal report that, until 9 June 2016, the applicant had not sent any contribution in relation the follow-up to the peer review on best execution of the MiFID to his reporting officer, which the applicant does not dispute. In addition, it is stated in that report that it was envisaged that the note requested of the applicant would be discussed by the BoS at its meeting of 12 July 2016, which implied a revision of the draft drawn up by him and the prior consultation of the SCSC, and that, in the absence of any contribution from the applicant on 9 June 2016, the reporting officer had no choice but to entrust the task in question to another person in order to ensure that progress was made. 143 None of the arguments put forward by the applicant can call those assessments into question. 144 Even if the applicant was not informed of the fact that the task referred to in the second indicator of the second objective had been reallocated to another person, that fact is irrelevant for the purpose of determining whether the assessments in the 2016 appraisal report are vitiated by a manifest error of assessment. 145 Furthermore, as ESMA argues, in view of his knowledge of internal deadlines, the applicant cannot validly challenge the necessity that the draft note requested be submitted by early June 2016 at the latest so that the written procedure allowing consultation of the SCSC could be completed in timely fashion before the documents for the BoS meeting in July 2016 were sent out. 146 Lastly, as regards the lack of instructions from the reporting officer for the second indicator of the second objective, it is sufficient to note that it is not established that the applicant had requested such instructions. Furthermore, in performing the duties of a senior officer, the applicant could reasonably be expected to work independently and to ask for instructions if necessary. 147 In the third place, the applicant submits that no negative comment had been made on the report following up on the peer review on best execution of the MiFID (‘the follow-up report at issue’), either by the BoS or by the media. He also refers to the findings of the European Commission’s Internal Audit Service of 9 June 2017 concerning the NCA peer reviews within ESMA, and states that those findings do not contain any complaints. In addition, the applicant disputes that his contribution to the follow-up report at issue was substantially redrafted. 148 In that regard, it should be pointed out, as ESMA argues, that the follow-up report at issue was the result of collective work in which several experts had participated. Therefore, any quality of that report is not indicative of the quality of the applicant’s contribution to drawing up the report. 149 Furthermore, it must be stated that the arguments put forward by the applicant do not make it possible to understand which passages in the 2016 appraisal report are criticised. 150 In any event, it is apparent from the documents before the Court that the draft follow-up report at issue prepared by the applicant was substantially redrafted by his team leader, a circumstance which is the subject only of generic and unsubstantiated challenges by the applicant. Furthermore, as regards the reference made by the applicant to two oral presentations which he made at a meeting of the SCSC in November 2016 which were commented on positively by the reporting officer, it must be held that no useful conclusion can be drawn from those presentations as regards the quality of the applicant’s contribution to the follow-up report at issue. 151 Lastly, as regards the internal audit referred to by the applicant which was carried out by the Commission’s Internal Audit Service, it is sufficient to note that that audit concerned procedures established in the context of peer reviews and not of individual performance. It follows that the results of that audit are not capable of calling into question the assessments in the 2016 appraisal report. 152 In the light of all the foregoing, it must be held that the arguments put forward by the applicant as regards the assessments relating to the second objective set for him are not capable of establishing the existence of a manifest error of assessment. (iii) The third objective 153 It is apparent from the 2016 appraisal report that the third objective set for the applicant related to mandatory peer reviews. According to the performance indicator specified for that purpose, the applicant was required to draft a proposal on the methodology for mandatory peer reviews. As regards the timetable to be observed, reference was made to the SCSC work plan. 154 As regards that objective, the reporting officer stated, in the 2016 appraisal report, that the applicant’s work was characterised by inadequate planning and considerable delays. She specified that the deadline for submission of the proposal referred to in the indicator of the third objective had had to be extended by at least two months. In addition, while emphasising the positive aspects of the applicant’s work, the reporting officer identified, in the context of the third objective, deficiencies relating to attention to detail and the drafting of quality recommendations. 155 The applicant claims that the delay in drafting the methodology resulted from facts which were not his responsibility, since the Assessment Group members did not accept ESMA’s key role in the mandatory peer reviews, which had led to longer discussions than expected. The applicant further claims that delays were also caused by proposals from the reporting officer, exchanges with the ESMA Market Department and revisions from his team leader, who took up her duties in September 2016. Furthermore, the applicant points out that his work relating to the third objective was appreciated and that the drafting proposals had not been the subject of negative comments by ESMA’s chairperson and the BoS members. 156 Those arguments do not reveal a manifest error of assessment as regards the findings in the 2016 appraisal report in relation to the third objective. 157 As a preliminary point, it should be noted that the reporting officer did not merely criticise the delay in drawing up the requested proposal. She also found that there had been inadequate planning and an unsatisfactory quality of performance. 158 As regards the arguments seeking to justify the delay in relation to the attainment of the third objective, it must be observed that it follows from that objective that the applicant was responsible for drafting a proposal on the methodology for mandatory peer reviews within the time limits set. As ESMA points out, the applicant was not responsible for the final approval of the methodology in question. As regards the timetable, ESMA states, without being contradicted by the applicant, that, according to the SCSC’s work plan, a note for the SCSC meeting of 4 May 2016 and another proposal for the approach to be followed for the meeting of that committee of 13 July 2016 should have been prepared by the applicant. Moreover, it is not disputed that the applicant did not contact his reporting officer until 27 July 2016 to ask for instructions concerning the handling of the task allocated in the context of the third objective and, therefore, more than two months after the first deadline. It is also apparent from the reporting officer’s notes of the mid-term dialogue meeting that deadlines had been changed and that the SCSC meetings referred to were thenceforth those of July and September 2016. It is also stated that the applicant did not comply with those deadlines either and that the timetable had to be adjusted accordingly. 159 Moreover, it must be stated that the applicant’s arguments aimed at justifying the delays are not substantiated and are, at least in part, based on delays relating to the process of approving the methodology in question. 160 In those circumstances, the applicant’s arguments are not capable of justifying the delay in drawing up the note which should have been initially discussed in the context of the SCSC meeting of 4 May 2016 and do not therefore permit a finding that there was a manifest error of assessment in that regard. 161 The applicant’s arguments aimed at calling into question the assessments relating to the unsatisfactory quality of his performance cannot succeed either. 162 First, those arguments lack precision. Second the absence of any negative comments from ESMA’s chairperson and the BoS members on the applicant’s proposals is inconclusive as regards their quality, since those proposals could already have been amended following observations made by the applicant’s direct superiors, which, according to ESMA, was the case in this instance. 163 In the light of all the foregoing, the arguments put forward by the applicant concerning the assessments relating to the third objective set for him must be rejected. It also follows that none of the complaints relating to the heading ‘Efficiency’ can succeed. (2) The headings ‘Ability’ and ‘Conduct in the service’ 164 As regards the heading ‘Ability’, the applicant submits that the reporting officer’s comments on that criterion are limited to a repetition of the comments already made in relation to the second and third objectives in the context of the assessment of his efficiency. The applicant therefore refers to his comments regarding those objectives. According to the applicant, the same applies as regards the heading ‘Conduct in the service’, adding that the reporting officer made only general negative comments in that regard. 165 In the absence of independent arguments and in the light of the analysis relating to the arguments concerning the heading ‘Efficiency’, it must be held that the assessments relating to the headings ‘Ability’ and ‘Conduct in the service’ are not vitiated by a manifest error of assessment. 166 It follows that the first part of the second plea in law must be rejected as unfounded. (b) Second part of the second plea in law, concerning the appraisal of the applicant’s activities as a staff representative 167 The applicant maintains that no appraisal was carried out in so far as concerns his activities as a staff representative and, consequently, the 2016 appraisal report was incomplete. He adds that the reporting officer was not entitled, without making a manifest error of assessment and disregarding the rights of staff representatives, to appraise his overall performance in 2016. He states that the reporting officer indicated incorrectly that she had consulted the ‘ad hoc group’, since such a group does not exist within ESMA and that, in any event, consultation of such a group would amount to asking him to assess his own performance as staff representative. 168 ESMA disputes those arguments. 169 ESMA maintains that it was not possible to assess the applicant’s performance as staff representative because the reporting officer was not able to obtain any input in that regard. It states that the absence of an ad hoc group, which should have been established by the staff committee, cannot be blamed on the reporting officer and that the consultation of the other staff representative does not amount to self-assessment by the applicant himself. 170 In that regard, it should be noted that the reporting officer stated, in the 2016 appraisal report, that the applicant had assumed staff representation duties on the staff committee during the year in question. In addition, she stated that she had consulted, on 22 February 2017, the ‘ad hoc group’ which had to be established by the staff committee and had not received any input by the deadline for submitting appraisal reports, namely 1 March 2017. 171 As a preliminary point, it should be borne in mind that it is apparent from the first sentence of the sixth paragraph of Article 1 of Annex II to the Staff Regulations that the duties undertaken by members of the staff committee are deemed to be part of their normal service in their institution. That provision is designed to facilitate the participation of officials and staff members in staff representation, by enabling them, in particular, to carry out those duties within the working time prescribed for their normal service in their institution, and not in addition to it (see. to that effect, judgment of 16 December 2010, Lebedef v Commission, T‑364/09 P, EU:T:2010:539, paragraph 23). Furthermore, the second sentence of the sixth paragraph of Article 1 of Annex II to the Staff Regulations is intended to safeguard the rights of members of the staff committee by protecting them from any harm they might suffer because of their activities as staff representatives under the Staff Regulations. That is, in particular, the reason why staff representation activities must be taken into consideration when drawing up the staff reports of the officials and staff members concerned (see. to that effect, judgments of 26 September 1996, Maurissen v Court of Auditors, T‑192/94, EU:T:1996:133, paragraph 41, and of 5 November 2003, Lebedef v Commission, T‑326/01, EU:T:2003:291, paragraph 49). 172 Where the institution in question has not adopted a specific system for the appraisal of officials and members of staff engaged in staff representation activities, reporting officers are not empowered to assess those activities (see judgment of 5 November 2003, Lebedef v Commission, T‑326/01, EU:T:2003:291, paragraph 51 and the case-law cited). In view of the fact that the person concerned can perform the duties connected with his or her post only for a number of days less than the normal number of working days during the reference period, that performance must be evaluated on the basis of the performance actually produced during the time devoted to the service to which he or she has been assigned (judgment of 26 September 1996, Maurissen v Court of Auditors, T‑192/94, EU:T:1996:133, paragraph 41). 173 The situation is different where an ad hoc assessment system, such as that provided for at the Commission, has been set up (see. to that effect, judgment of 5 November 2003, Lebedef v Commission, T‑326/01, EU:T:2003:291, paragraph 52). In such a case, the specific rules governing the appraisal of officials and other members of staff performing staff representation activities must be applied. 174 As regards ESMA, it should be borne in mind that the GIPs for Article 43 have been applicable to it by analogy since January 2014 (see paragraphs 58 and 59 above). Therefore, ESMA was also required to apply by analogy point 5 of Annex I to the GIPs for Article 43, concerning the appraisal of the performance of staff representatives, as acknowledged by ESMA in its written pleadings. More specifically, since it is not disputed that the applicant was not exempted from performing his duties in a service, the rules laid down in point 5.5 of Annex I to the GIPs for Article 43 were applicable to him by analogy. 175 Under point 5.5 of Annex I to the GIPs for Article 43, reports relating to jobholders who have been elected to represent staff, without having been exempted from the obligation to perform their duties in a department, are to be drawn up by the reporting officer in the service to which they are assigned. In this point, it is also stated that the reporting officer is to consult the ad hoc group for the appraisal and promotion of staff representatives (‘the Commission’s ad hoc group’), whose opinion constitutes a contribution to the appraisal report. The purpose of consulting the Commission’s ad hoc group is to provide reporting officers with the information they need to assess the duties which individual jobholders perform as staff representatives, given that those duties are deemed to be part of their normal service in their institution (see. to that effect, judgment of 5 November 2003, Lebedef v Commission, T‑326/01, EU:T:2003:291, paragraph 54). 176 It follows that the reporting officer was required before completing the 2016 appraisal report to consult a body set up at ESMA equivalent to the Commission’s ad hoc group (‘ESMA’s ad hoc group’) concerning the applicant’s performance of staff representation duties and to take account of its opinion when drawing up that report. 177 In the present case, it is common ground that input to the 2016 appraisal report, referred to in point 5.5 of Annex I to the GIPs for Article 43 and relating to the applicant’s staff representation activities, was not obtained. 178 Accordingly, it is necessary to examine whether, in the absence of an appraisal of the activities carried out by the applicant as a staff representative, the 2016 appraisal report must be regarded as incomplete, as the applicant claims. 179 ESMA disputes those arguments, contending, in essence, that no ad hoc group was set up by the staff committee and that, in the absence of any input from such a group, the 2016 appraisal report cannot be regarded as incomplete. 180 It is not disputed that the staff committee, composed during the appraisal procedure for 2016 of two members, namely Mr [confidential] and the applicant, did not in fact designate the members of the ad hoc group referred to in point 5.5 of Annex I to the GIPs for Article 43 which is applicable by analogy to ESMA. 181 At the hearing, the applicant submitted that the absence of that designation was due to difficulties connected with the application of the GIPs for Article 43 by analogy within ESMA and to the lack of measures or guidance adopted by ESMA to implement those GIPs in terms of assessing the activities carried out as members of the staff committee. 182 It is not apparent from the file that ESMA attempted to clarify, in consultation with its staff committee and in timely fashion before the launch of the 2016 appraisal exercise, which body could be considered, having regard to the particular features of ESMA, to be equivalent to the Commission’s ad hoc group, so that the members of that body could then be designated by the staff committee. In that context, it should be noted that, as is apparent from point 5 of Annex I to the GIPs for Article 43, the Commission’s ad hoc group is composed of 16 members and that it was inconceivable that ESMA’s ad hoc group could be composed in the same manner, having regard to the organisation of staff representation within ESMA and to the structure of its staff committee, which consisted of only two members. 183 In response to a written question from the Court, first, ESMA merely referred to an email sent to the staff committee by an employee of the human resources department on 20 January 2017, requesting that the names of the members of ESMA’s ad hoc group be communicated. Second, it referred to the note of 23 January 2017 relating to the launch of the appraisal exercise for 2016, mentioning the obligation for the reporting officers of the permanent and alternate members of the staff committee to consult ESMA’s ad hoc group and the staff committee’s obligation to set up such a group. It has not been claimed or proved that the administration chased up the staff committee in this regard or attempted to organise a meeting with that committee in order to unblock a situation which had persisted since 2014. 184 Next, it should be noted that, given that ESMA’s ad hoc group had not been set up, ESMA did not give clear instructions in advance to reporting officers as regards the inferences to be drawn from that situation in the appraisal reports concerned. 185 It is apparent from ESMA’s replies to the Court’s written questions that, when asked by the applicant’s reporting officer by email of 21 February 2017 about the existence of the ad hoc group and the person to be contacted, the member of staff of the human resources department responsible for appraisals confirmed to the applicant’s reporting officer that no ad hoc group had been set up by the staff committee and advised the reporting officer to send an email to the staff committee. 186 In addition, it is apparent from the documents before the Court that, following the response provided by the administration, the reporting officer sent, on 21 February 2017, an email to the functional mailbox of the staff committee requesting, by 27 February 2017, the input of ESMA’s ad hoc group concerning the work carried out by the applicant in 2016. Mr [confidential] replied to the reporting officer on 23 February 2017, stating that, as the applicant was on leave, he could not make progress on the report and that a reply would be given after the applicant had returned. In that context, it should be noted that the applicant was on annual leave from 16 February to 5 March 2017 and that, before his departure, the issue of the composition of the ad hoc group had not been resolved. It should also be noted that, in the absence of any input within the prescribed period, on 1 March 2017 the reporting officer submitted the 2016 appraisal report, without any assessment of the applicant’s duties as a staff representative having been carried out and taken into consideration. 187 In those circumstances, ESMA cannot maintain, moreover, that the reporting officer was misled by the staff committee as regards the existence of the ad hoc group. Accordingly, the passage in the 2016 appraisal report criticised by the applicant is indeed incorrect, since a group which had not been set up could not be consulted. 188 Moreover, it should be pointed out that the members of the staff committee took no steps following the applicant’s resumption of work on 6 March 2017 in relation to the reporting officer’s request of 21 February 2017. 189 Lastly, it is neither claimed nor established that, following Mr [confidential]’s email of 23 February 2017, the reporting officer requested further explanations or chased him or the staff committee up after the expiry of the deadline set by her for providing the input of ESMA’s ad hoc group. Nor is it apparent from the documents before the Court that ESMA or the staff committee attempted, at the stage of the appeal procedure or of the complaint procedure, to remedy the lack of appraisal of the applicant’s activities as a member of the staff committee. 190 However, as was already pointed out (see paragraphs 173 to 176), ESMA was required to apply point 5.5 of Annex I to the GIPs for Article 43 by analogy and, therefore, to implement it in such a way that the rights of the members of its staff committee stemming from the sixth paragraph of Article 1 of Annex II to the Staff Regulations were safeguarded and that their staff representation activities could be taken into consideration when their staff reports were drawn up. ESMA may therefore be considered to be responsible for any malfunctioning of the system thus applicable. 191 It also follows from this that ESMA should have clarified, in consultation with its staff committee and in timely fashion before the launch of the 2016 appraisal exercise, which body could be considered, having regard to the particular features of ESMA, to be equivalent to the Commission’s ad hoc group so that the members of that body could then be designated by the staff committee and its opinion could be duly taken into account by the reporting officers concerned. It should also have given clear information in advance on whether such a body existed and on the procedure to be followed by the reporting officers concerned. Moreover, ESMA did not attempt to remedy the failure to take into consideration an assessment of the applicant’s activities as a staff representative in the 2016 appraisal report at the stage of the appeal procedure or of the complaint procedure. 192 Thus, ESMA did not take all the measures enabling point 5.5 of Annex I to the GIPs for Article 43 to be applied by analogy. Accordingly, it is irrelevant whether the failure to set up ESMA’s ad hoc group can be imputed to the reporting officer herself. 193 So far as this point is relevant, it must be stated that, if, within ESMA, it was not possible to apply point 5.5 of Annex I to the GIPs for Article 43 by analogy, ESMA should, in accordance with the procedure laid down in the third subparagraph of Article 110(2) of the Staff Regulations, either have requested the agreement of the Commission not to apply the provision in question or submitted to the Commission for its agreement rules which differed from those applicable by analogy. 194 In the light of all the foregoing, the 2016 appraisal report must be regarded, in the absence of the contribution referred to in point 5.5 of Annex I to the GIPs for Article 43, as incomplete, in breach of the applicable rules. 195 Such a procedural irregularity may however lead to the annulment of the 2016 appraisal report only if it is shown that that irregularity could have had an influence on the content of that report (see. to that effect, judgments of 9 March 1999, Hubert v Commission, T‑212/97, EU:T:1999:39, paragraphs 53 and 54, and of 14 December 2017, Campo and Others v EEAS, T‑577/16, not published, EU:T:2017:909, paragraph 59). That is so in the present case, since the overall assessment of the applicant’s performance might have been different if the assessment of staff representation activities had been taken into consideration by the reporting officer. Even if, as ESMA maintained at the hearing, the applicant’s activities as a member of the staff committee did not exceed 20% of those tasks considered as a whole, it cannot be ruled out that a positive assessment of those activities was capable, at least to some extent, of balancing the assessment of the applicant’s activities in connection with his post, which was, in essence, acknowledged by ESMA at the hearing, and, consequently, of leading the reporting officer to find that an overall assessment of the applicant’s performance during 2016 was still satisfactory. In those circumstances, it must be held that the reporting officer did not have all the information necessary to enable her to carry out the overall assessment of the applicant’s performance. 196 Moreover, the incompleteness of the 2016 appraisal report prevents the Court from carrying out an examination of the overall assessment of the applicant’s performance in 2016 as to the substance. 197 It follows that the second part of the second plea in law must be upheld and the 2016 appraisal report annulled, without it being necessary to examine the third plea. D. The application for annulment of the decision to terminate the contract 198 In support of the application for annulment of the decision to terminate the contract, the applicant relies on six pleas in law. 199 The first plea in law alleges, in essence, failure to comply with the rules governing notification of the decision to terminate the contract, the second, infringement of the right to be heard, the third, infringement of the obligation to state reasons, the fourth, in essence, manifest errors of assessment, the fifth, infringement of the principle of proportionality, and the sixth, infringement of the duty to have regard for the welfare of officials and of the principle of good administration. 200 It is appropriate to start by examining the fourth plea in law. 201 In the fourth plea, the applicant challenges the legality of the decision to terminate the contract, in particular on the ground that that decision is based on the 2016 appraisal report which is vitiated by manifest errors of assessment, which follows from his action in Case T‑77/18. 202 ESMA disputes those arguments. 203 As a preliminary point, it should be noted that, even if indefinite contracts are different, in terms of security of tenure, from fixed-term contracts, it cannot be denied that EU civil service staff employed on the basis of an indefinite contract must be aware of the temporary nature of their engagement and the fact that it does not confer on them any guarantee of employment (judgment of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 84). 204 Next, it is apparent from Article 47(c)(i) of the CEOS that, apart from cessation on death, the employment of temporary staff, where the contract is for an indefinite period, is to cease at the end of the period of notice stipulated in the contract; the length of the period of notice may not be less than one month for each completed year of service, subject to a minimum of 3 months and a maximum of 10 months. 205 In that regard, it should be recalled that it is settled case-law that, with regard to the termination of a contract for an indefinite period held by a member of the temporary staff, the AECE has, pursuant to Article 47(c)(i) of the CEOS and subject to the period of notice contained in the contract, a broad discretion and the judicial review exercised by the European Union judicature must therefore be limited to whether there has been a manifest error or a misuse of powers (see judgment of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 76 and the case-law cited). 206 Moreover, an error may be said to be manifest only where it can be readily detected, in the light of the criteria to which the legislature intended the exercise by the administration of its discretion to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken as a result, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent (see. to that effect, judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 95 and the case-law cited). 207 It is in the light of those principles that it must be assessed whether the termination decision is vitiated by a manifest error of assessment in that it is, in particular, based on an incomplete appraisal report (see paragraphs 171 to 196 above) finding that the applicant’s performance was unsatisfactory, without ESMA’s AECE having before it all the necessary information. 208 In that regard, it should be noted that the AECE based the dismissal of the applicant in the decision to terminate the contract, in essence, on his unsatisfactory performance during two consecutive appraisal periods, namely during 2015 and 2016. It is also stated that the decision was taken after weighing the interest of the applicant against that of the service. 209 Moreover, it is apparent from the decision rejecting the complaint of 11 June 2018, the statement of reasons for which supplements that for the decision to terminate the contract and must be taken into consideration in the review of its legality, in view of the evolving nature of the prelitigation procedure (see. to that effect, judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraphs 31 to 35), that the termination of the applicant’s contract following the two appraisal reports showing performance considered unsatisfactory was not mandatory. Nevertheless, it is also observed that it was for the AECE to guarantee the highest level of staff ability, efficiency and integrity and to assess whether it was in the interest of the service to retain in his post a senior officer whose performance was manifestly inadequate. 210 Similar considerations emerge from both the email of 23 May 2017, by which ESMA’s executive director informed the applicant of her intention to terminate his contract, and the transcript of the meeting of 22 June 2017 concerning the possible termination of the applicant’s contract, in the version annotated by the applicant, which form part of the context in which the decision to terminate the contract was adopted. 211 It follows that the AECE gave as the reason for the decision to terminate the contract, in essence, the applicant’s performance which was considered unsatisfactory in his appraisal reports for two consecutive years, namely during 2015 and 2016, and by the interest of the service in having staff of the highest standard. 212 Next, it should be noted that, following the annulment of the 2016 appraisal report, the decision to terminate the contract is also inevitably vitiated by an error in so far as it expressly takes account of the overall assessment of the applicant’s performance set out in that report (see. to that effect, judgment of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraph 90). 213 In those circumstances, in order to assess the inferences to be drawn from that error, it is also necessary to determine to what extent the impossibility of taking into account the 2016 appraisal report is likely to affect the grounds of the decision to terminate the contract. In other words, the error found would be ineffective and accordingly would not be sufficient to warrant annulment of the decision to terminate the contract if it could not have had a decisive effect on the outcome of that decision (see. to that effect, judgment of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraphs 91 and 92). 214 In that regard, it must be borne in mind that the 2015 appraisal report, which was also taken into account in the decision to terminate the contract, was not challenged by the applicant within the time limits laid down for that purpose and that, consequently, under the case-law cited in paragraph 40 above, the matters in that report must be regarded as established. As was already stated (see paragraph 7 above), in the 2015 appraisal report, the level of the applicant’s performance was regarded by his reporting officer as unsatisfactory. 215 However, contrary to ESMA’s submissions in response to a question from the Court, the impossibility of taking the 2016 appraisal report into consideration on the ground of its annulment – having the effect of retroactively eliminating it from the legal order – is likely to have a decisive influence on the outcome of the decision to terminate the contract. 216 Both in the decision to terminate the contract and at the meeting of 22 June 2017 concerning the possible termination of the applicant’s contract, ESMA’s executive director emphasised the continuing nature of the applicant’s unsatisfactory performance over two consecutive appraisal periods. Since a period can no longer be taken into consideration following the annulment of the 2016 appraisal report, the grounds of the decision to terminate the contract, based on underperformance over a period of two years, are substantially affected. 217 Furthermore, the fact that the decision to terminate the contract was taken only after the rejection of the applicant’s complaint against the 2016 appraisal report, which follows expressly from that decision, demonstrates the importance attached by the AECE to the conclusions which may be drawn from that report as regards the possible termination of the applicant’s contract. 218 Lastly, in so far as the AECE acknowledged, in the decision rejecting the complaint of 11 June 2018, that the termination of the applicant’s contract following two appraisal reports showing performance considered unsatisfactory was not mandatory, that applies a fortiori in the case of a single appraisal report, namely that for 2015, in which it was found that the level of the applicant’s performance was unsatisfactory. 219 It follows from all of the foregoing that the decision to terminate the contract must be annulled in so far as it is vitiated by a manifest error of assessment, without it being necessary to examine the other arguments raised by the applicant in the context of the fourth plea or the other pleas in the action brought in Case T‑567/18. E. The claims for compensation 220 In Case T‑77/18, the applicant maintains that the infringements invoked in support of the application for annulment of the 2016 appraisal report have caused him non-material damage, which he estimates at EUR 10 000. He contends, in essence, that that report seriously impaired his reputation, self-esteem and dedication. 221 In Case T‑567/18, the applicant claims compensation for the non-material harm allegedly suffered by him, in an amount of EUR 15 000. He considers that that harm was caused by the lack of care with which his case was handled, which resulted in high levels of stress and strong feelings of injustice, discrimination, disrespect and defamation, which affected his dignity, health and wellbeing, as well as his professional reputation, in a way that cannot be reversed at the current stage of his career. 222 ESMA disputes those arguments. 223 In that connection, it must be recalled that it follows from settled case-law regarding civil service matters that the European Union can be held liable for damages only if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (see judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 102 and the case-law cited). 224 As regards the non-material damage, it is apparent from the case-law that the annulment of a measure of the administration may in itself constitute appropriate and, in principle, sufficient reparation for any non-material damage which the applicant may have suffered, except where the unlawful act of the administration contains an assessment of the staff member’s abilities or conduct likely to cause him or her harm (judgment of 12 December 2000, Dejaiffe v OHIM, T‑223/99, EU:T:2000:292, paragraph 91). 225 In the present case, as regards the 2016 appraisal report, it must be held that the unlawfulness of that report stems from the fact that the assessment of the applicant’s activities as a member of the staff committee was neither carried out nor taken into consideration in the overall assessment of his performance (see paragraphs 171 to 196 above). 226 In so far as the non-material harm alleged to have been suffered by the applicant relates to the impact of the 2016 appraisal report on his self-esteem or his dedication and on the damage to his reputation, it must be held that there is no causal link between such harm, even if it were established, and the irregularity found. In any event, the 2016 appraisal report does not contain an assessment of the applicant’s abilities or conduct liable to harm him. Furthermore, that report cannot harm the applicant’s reputation, given that, as ESMA rightly points out, that report is confidential and anonymity has been granted to him in the present proceedings. In addition, it is apparent from the considerations set out in paragraphs 186, 188 and 189 above that the staff committee and its members contributed to the failure to assess the applicant’s activities as a member of that committee under the applicable rules. 227 As regards the decision to terminate the contract, it must be borne in mind that any dismissal is by nature likely to generate in the person dismissed feelings of rejection, frustration and uncertainty as to the future. Thus it is only where there are special circumstances that it may be declared that the unlawful conduct of an employer has had a psychological impact on the staff member beyond what a dismissed person normally feels, and that that person is entitled to payment of compensation for non-material damage (judgment of 26 May 2011, Kalmár v Europol, F‑83/09, EU:F:2011:66, paragraph 81). 228 In the present case, the applicant merely asserts, in general terms, that the lack of care with which his case was handled resulted in significant stress and strong feelings of injustice, discrimination, lack of respect and defamation, affecting his dignity, health and well-being and his professional reputation, without alleging, let alone proving, the existence of special circumstances justifying the payment of compensation for non-material damage. 229 It follows that the applicant’s claims for compensation for non-material damage in addition to the compensation already stemming from the annulment of the 2016 appraisal report and from the decision to terminate the contract must be rejected. Costs 230 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. 231 In the present case, since ESMA has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Joins Cases T‑77/18 and T‑567/18 for the purposes of the judgment; 2. Annuls the appraisal report of VE for the period from 1 January until 31 December 2016; 3. Annuls the decision of 14 November 2017 to terminate the contract of VE as a member of the temporary staff; 4. Dismisses the actions as to the remainder; 5. Orders the European Securities and Markets Authority (ESMA) to pay the costs. Papasavvas Spielmann Csehi Delivered in open court in Luxembourg on 23 September 2020. [Signatures] * Language of the case: English. 1 Confidential information omitted.