Judgment — ECLI:EU:F:2013:137
Date: 2013-09-30
Language of the case: English
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Action for damages - successful;Staff cases - successful

summary of his performance during his employment at Frontex. Mr B included in that section the opinion that he had expressed, as countersigning officer, dissenting from that of the reporting officer on the performance of the applicant in the appraisal report relating to 2009. That appraisal report, he claims, was not drawn up in accordance with the decision of 27 August 2009, since the dissenting opinion had never been notified to the applicant, in breach of Article 11(6) of the decision of 27 August 2009 and his rights of defence. It was only in the context of the non-renewal of his contract that the applicant learned that Mr B had not confirmed the positive opinion of the reporting officer expressed in the appraisal report for 2009. As the abovementioned dissenting opinion had been expressed irregularly in that appraisal report, it should not have been taken into account in the context of the renewal of the applicant’s contract. 56 Frontex contends that the applicant had been aware of the dissenting comments made by Mr B in his appraisal report for 2009. As the applicant had not disputed those comments, Frontex could only conclude that he was satisfied with the result of the appraisal carried out and consider that he had accepted that report as being final. 57 At the hearing, Frontex maintained that Mr B’s decision of 10 December 2009, under which the ICT Sector had been restructured, had been taken because of the bad management of the applicant. That restructuring meant that the applicant no longer supervised 20 members of staff who had, until then, worked under his guidance, and that his duties were reduced to services connected to contracts awarded by Frontex. According to Frontex, the applicant should have realised that that restructuring had been decided by Mr B because he considered that the applicant’s performance did not meet expectations. – Findings of the Tribunal 58 First, the Tribunal notes that, according to Article 11(4), (5) and (6) of the decision of 27 August 2009, where the countersigning officer does not agree with the opinion expressed by the reporting officer in an appraisal report, he must meet the latter in order to try to reach an agreement. At the end of that meeting, it is for the countersigning officer to countersign the report, amended where appropriate, and to forward it to the jobholder or to the reporting officer so that the latter can forward it in turn to the jobholder. Likewise, Article 12(5) of the decision of 27 August 2009 provides that, with effect from the 60th working day after the starting date of the appraisal exercise, if the jobholder refrains either from signing the report, sending it to the reporting officer or seeking a dialogue with the countersigning officer, he shall be deemed to have accepted the content of that report. 59 Secondly, it should be recalled that Article 26 of the Staff Regulations provides for the creation of a personal file for each official containing all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct, together with any comments by the official on such documents. Documents may not be used or cited by the institution against an official unless they were communicated to him before being placed in his file. According to the case-law, the purpose of those provisions is to guarantee the official’s right to defend himself (judgment of 13 January 2010 in Joined Cases F‑124/05 and F‑96/06 A and G v Commission, paragraph 275). 60 It follows that an institution commits an infringement of Article 26 of the Staff Regulations and of an official’s right to a fair hearing where it adopts a decision adversely affecting him without having previously communicated to him the assessments of his ability which justify the adoption of that decision. In that regard, it must be pointed out that the mere fact that the official concerned knew of these assessments, even if established, cannot be regarded as sufficient evidence that he had had the opportunity effectively to defend his interests prior to the adoption of the decision adversely affecting him. In order for the observance of his right to a fair hearing to be ensured, the institution must still demonstrate, by any means, that it had previously enabled the official concerned to understand that the assessments in question, which were not communicated to him before being placed on his personal file, were such as to justify the decision adversely affecting him. Failing that, the communication required by Article 26 of the Staff Regulations cannot be deemed to have taken place (see, to that effect, judgment of 5 October 2009 in Joined Cases T‑40/07 P and T‑62/07 P de Brito Sequeira Carvalho v Commission and Commission v de Brito Sequeira Carvalho, paragraph 94). 61 In the present case, it is apparent from the contested decision that the authority authorised to conclude contracts decided not to renew the applicant’s contract as a member of the temporary staff because of the insufficient quality of his work during 2009, thus following the opinion to that effect expressed by Mr B, the applicant’s countersigning officer, in the appraisal report relating to 2009, and because of the insufficient quality of the applicant’s work during 2010. 62 Frontex contends that the applicant had been aware that Mr B’s opinion diverged from that expressed by Mr A in the appraisal report for 2009. However, the Tribunal notes that, whereas it is true that that appraisal report was signed by Mr A, as the reporting officer, on 20 January 2010, that the appraisal made by the latter was signed and approved by the applicant on 21 January 2010 and that Mr B completed and signed the report as countersigning officer on 20 June 2010, the fact remains that the report was not signed by the applicant following the comments and signature by the countersigning officer. When questioned on this point in the context of measures of organisation of procedure, Frontex did not provide any document or other evidence from which it is apparent that the appraisal report for the year 2009 had been notified to the applicant after signature by Mr B as countersigning officer, in accordance with Article 11(4), (5) and (6) of the decision of 27 August 2009. Nor was Frontex able to explain how it had established in the applicant’s personal file that, with effect from the 60th working day after the start of the appraisal exercise relating to 2009, the applicant was deemed to have accepted the appraisal report drawn up in the context of that exercise, since he had not disputed it. 63 In response to the measures of organisation of procedure, Frontex did, however, adduce a sworn declaration by Mr B according to which, after he had signed, on 20 June 2010, the applicant’s appraisal report for the year 2009, Mr B gave that report to the applicant in person the following week. Moreover, Mr B states that he met the applicant on two occasions, on 28 May and 17 June 2010, to explain why his opinion diverged from that of Mr A. In support of that sworn statement of Mr B, Frontex submitted an exchange of emails from which it is apparent that the applicant agreed to meet Mr B on the two abovementioned dates. Furthermore, Frontex submitted an exchange of emails of 20 July 2010 between the coordinator of the Human Resources Sector and the applicant which shows that the applicant had been informed that the 2010 appraisal exercise had been finalised. 64 In that regard, the Tribunal notes, first, that the exchange of emails of 20 July 2010 does not show that the applicant was aware of Mr B’s dissent from the positive opinion that Mr A had expressed in the appraisal report for 2009. Furthermore, the emails produced by Frontex concerning the meetings held on 28 May and 17 June 2010 do not make it possible to determine the subjects covered during those meetings. In those circumstances, the Tribunal considers, without doubting the good faith of Frontex and in particular that of Mr B, that neither the sworn statement of the latter, together with the exchange of emails concerning the abovementioned meetings, nor the emails of 20 July 2010 have sufficient probative value within the meaning of the case-law cited in paragraph 60 of the present judgment. Therefore, since Frontex has not demonstrated to the requisite legal standard that Mr B’s dissent from the opinion of the reporting officer, concerning the appraisal of the applicant, was formally notified to the applicant in the context of drawing up the appraisal report relating to 2009, it must be concluded that the contested decision is vitiated by illegality in so far as it is based on that dissenting opinion. 65 It is, of course, very probable that the applicant became aware of that dissenting opinion at the latest during the meeting with Mr B on 24 January 2011, before the adoption of the contested decision. However, given its lateness, in breach of his rights of defence such notification did not allow him to put forward effectively his comments on the criticisms of Mr B, nor to challenge them in administrative or even legal proceedings, nor to take the measures necessary to improve the quality of his work thereafter in order to obtain a better appraisal for the year 2010. 66 Nor can Frontex succeed in its argument, submitted at the hearing, that the applicant should have realised, when the ICT Sector was restructured in December 2009, that Mr B considered that his work did not meet expectations. While it is true that the decision of Mr B of 10 December 2009 concerned a restructuring of the ICT Sector, the fact remains that nothing in that decision led to the conclusion that it was motivated by Mr B’s dissatisfaction with the applicant’s work. 67 It follows from the above that the second part of the third plea is well founded. 68 Consequently, there is no need to examine either the first plea, or the first part of the second plea, or the third part of the third plea, or the fourth plea. 69 In light of the foregoing considerations, the claim for annulment of the contested decision must be upheld. Damages 70 According to settled case-law, under the second sentence of Article 91(1) of the Staff Regulations, the Tribunal has, in disputes of a financial character, unlimited jurisdiction, pursuant to which it has the power, if need be, of its own motion to order the defendant to pay compensation for the damage caused by the defendant’s wrongful act and, in such a case, taking account of all of the circumstances of the case, to assess the damage suffered ex aequo et bono (judgment of 20 May 2010 in Case C‑583/08 P Gogos v Commission, paragraph 44). 71 According to the case-law of the Court of Justice of the European Union, an action by which an official seeks annulment of a decision affecting his position under the Staff Regulations may give rise to a dispute of a financial character within the meaning of Article 91(1) of the Staff Regulations (Gogos v Commission, paragraph 46). 72 In particular, the Court has held that an action by which an official seeks judicial review by the Courts of the European Union of the legality of his classification gives rise to a dispute of a financial character. The logic behind this is that the decision of the appointing authority on the classification of an official not only has an impact on the career of the person concerned and his personal position within the hierarchy of the authority, but also has direct effects on his pecuniary rights, in particular the level of his remuneration under the Staff Regulations (Gogos v Commission, paragraph 47). 73 Consequently, where, as here, a former member of the temporary staff seeks judicial review by the Courts of the European Union of the legality of the decision not to renew his contract, it must be construed, a fortiori, that his action gives rise to a dispute of a financial character. The decision not to renew the contract has a direct effect on the continuity of the person concerned in his position as a member of the temporary staff within the institution concerned, and therefore on his remuneration and his pecuniary rights. 74 It follows that the action brought by the applicant is of a financial character within the meaning of Article 91(1) of the Staff Regulations. Accordingly, in the present case the Tribunal has unlimited jurisdiction, which entrusts it with the task of providing a complete solution (Gogos v Commission, paragraph 49). 75 That jurisdiction is primarily intended to enable the Courts of the European Union to guarantee the effectiveness of the judgments by which they annul decisions in staff cases, so that if the annulment of a decision of the appointing authority which contains errors of law is not sufficient to assist the official concerned in enforcing his rights or to protect his interests effectively, the Courts of the European Union may award compensation of their own motion (Gogos v Commission, paragraph 50). 76 The Tribunal requested the parties to address, at the hearing, the question whether, in the present case, it has unlimited jurisdiction under the second sentence of Article 91(1) of the Staff Regulations and whether, given that the applicant did not make any claim for compensation, the Tribunal may award him compensation of its own motion. 77 In reply, the applicant submitted that the Tribunal has such unlimited jurisdiction in the present case and that it should award him substantial compensation. In contrast, without denying that the Tribunal has such unlimited jurisdiction, Frontex contended that, in the light of the circumstances of the present case, the Tribunal should not exercise that jurisdiction for three main reasons, as follows: (i) the contested decision did not give rise to non-material damage in so far as the clause establishing 12 months’ notice only contained an obligation to use its best efforts; (ii) the applicant has no right to the renewal of his contract; and (iii) the applicant has found new employment in which he received nearly the same remuneration. In any event, should the Tribunal wish to award compensation, Frontex considers that such compensation should be symbolic. 78 In that regard, it must be recalled that it was held in paragraph 46 of the present judgment that Frontex was in breach of its duty to give 12 months’ notice of the contested decision, as established in the contract renewal rules. Frontex therefore committed an administrative fault capable of giving rise to compensation. Likewise, it is apparent from paragraph 51 that Mr B incorrectly replied in the negative to the question whether the non-renewal of the applicant’s contract would have exceptional personal or social consequences. Furthermore, Frontex’s argument cannot be accepted that, because of his new employment, the contested decision only gave rise to minimum financial loss to the applicant. It is apparent from the file that, in January 2012, the applicant was recruited by another agency of the European Union at grade AD 8 and that a weighting of more than 100 is applied to him, whereas a weighting of less than 100 was applied to the remuneration that he received as a grade AD 10 staff member of Frontex. 79 In accordance with Article 64 of the Staff Regulations and Article 20 of the CEOS, a weighting is applied to the remuneration of officials and members of the temporary staff, determined by reference to living conditions at their place of employment, to ensure that they have equal purchasing power irrespective of that place of employment (judgment of 10 July 1997 in Case T‑81/96 Apostolidis and Others v Commission, paragraph 3). The application of a weighting cannot, therefore, be taken into account for the purposes of comparing the level of remuneration received by those members of staff and officials. It follows that, even if it is established that the net remuneration currently received by the applicant, a grade AD 8 member of staff, is similar to that which he would receive as a grade AD 10 member of staff at Frontex, it must be concluded that as a grade AD 8 member of staff he receives lower remuneration than he received at Frontex. 80 In light of all the foregoing, the Tribunal considers that the annulment of the contested decision does not suffice to effectively protect the interests of the applicant. In the light of the circumstances of the case, the Tribunal, assessing the damage suffered ex aequo et bono, considers that an award of EUR 5 000 constitutes adequate compensation to the applicant. Costs 81 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any. 82 It follows from the reasoning set out in the present judgment that Frontex is the unsuccessful party. Furthermore, in his pleadings the applicant expressly requested that Frontex be ordered to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, Frontex must bear its own costs and be ordered to pay the costs incurred by the applicant. On those grounds, THE CIVIL SERVICE TRIBUNAL (Second Chamber) hereby: 1. Annuls the decision of 28 March 2011 not to renew the contract of Mr Possanzini as a member of the temporary staff, adopted by the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union; 2. Orders the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union to pay Mr Possanzini the sum of EUR 5 000 by way of damages; 3. Declares that the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union shall bear its own costs and orders it to pay the costs incurred by Mr Possanzini. Rofes i Pujol Boruta Bradley Delivered in open court in Luxembourg on 30 September 2013. W. Hakenberg M.I. Rofes i Pujol Registrar President * Language of the case: English.