Judgment — ECLI:EU:F:2012:182
Date: 2012-12-11
Language of the case: English
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible

summary form, mentions a dialogue taking place between the various stakeholders and the delay with which the countersigning officer adopted her decision and notes that, in the light of the documents which were submitted to it, the assessment made of the ability, efficiency and conduct in the service of the applicant is not inappropriate. It follows that the third submission must also be rejected. 65 It follows from all the foregoing that the first plea must be rejected in its entirety. Second plea, alleging that the assessment made of the applicant’s conduct was unlawful 66 The applicant submits that the reporting officer did not bring to his notice during the reference period the problems in his conduct which are highlighted in the appraisal report, which states that ‘[the applicant] would gain from enhanced team spirit and interpersonal skills’ and that he ‘could further progress in interpersonal and communication skills as well as team spirit’. 67 Essentially, in the applicant’s view, the most appropriate means of remedying his behavioural weaknesses would have been to inform him of them before the appraisal report was drawn up, so that bringing them to his notice at the time when his appraisal report was drawn up infringes the principle of proportionality. 68 In this connection, it must be recalled that, according to case-law, the improvement of the conduct in the service of the staff member under appraisal is indeed an objective which the appraisal report aims to meet (see, to that effect, judgment of 9 November 2006 in Case C-344/05 P Commission v De Bry, paragraph 44). Thus, even if it were to be established that the reporting officer did not bring to the applicant’s notice the weaknesses in his conduct in the service during the reference period, the ECDC cannot be accused of having acted unlawfully on account of the fact that the reporting officer’s observations on the applicant’s conduct in the service are included in the appraisal report. 69 Consequently, the second plea must be rejected. Third plea, alleging factual error 70 The applicant alleges that the ECDC committed a factual error in stating that the legal team consisted of the head of section and two legal officers. The applicant considers himself to have been the only legal officer, as Mr B was only an interim ‘legal assistant’, and could not be considered to be a legal officer. It follows from that error that the applicant’s workload appears in the appraisal report to be less than it was in actual fact, which affected the overall mark given in his appraisal. 71 The Tribunal observes in this connection that, in the defence, the defendant submitted, without having been contradicted at the hearing by the applicant, that until 14 December 2010 the applicant’s post was named ‘legal assistant’. From that date onwards, that post was designated as being that of a ‘legal officer’, without, nevertheless, that having entailed any change in the tasks allocated to the applicant. Thus, for almost all of the reference period, the applicant and Mr B had the same title, that of ‘legal assistant’, even if Mr B was not a member of the contract staff like the applicant but was employed by the ECDC on the basis of a short term contract concluded under a framework contract between the ECDC and a Swedish interim employment agency. It follows that that plea lacks a factual basis and the applicant has not been able to demonstrate that the ECDC committed any error in the assessment of his workload. 72 Moreover, the applicant has not even attempted to demonstrate that the change in the title of his post resulted in a substantial increase in his workload in respect of the period from 14 December 2010 to 31 December 2010, in order to show a factual error as regards the description of the service. 73 It follows from the foregoing that the third plea is devoid of any factual basis and must therefore be rejected. Fourth plea, alleging an error of assessment 74 The applicant takes the view that the ECDC has not provided any example of the behavioural weaknesses highlighted in his appraisal report, according to which ‘[he] would gain from enhanced team spirit and interpersonal skills’ and he ‘could further progress in interpersonal and communication skills as well as team spirit’. 75 In addition, the applicant submits that the appraisal report does not take account of certain exceptional circumstances, such as the psychological pressure he was under as a result of the recruitment of another legal officer and his exceptional workload, both with regard to the quantity of the files handled and their importance. In that regard, relying on his previous experience acquired in a European Union body, the applicant claims that he handled a volume of files which, in terms of their quantity, nature and level of their importance, were equivalent to that handled by ‘at least’ five legal officers and a senior legal officer. 76 Lastly, the applicant submits that the appraisal report does not take into consideration his observations relating to the implementation of a computer application, an objective assessed as having been ‘partly achieved’. The applicant explains in that regard that the fact that he did not completely achieve this objective was due to his hierarchical superior’s lack of initiative and the unrealistic character of that objective. 77 As a preliminary point, the Tribunal observes that, although in the applicant’s pleadings the submissions mentioned previously are presented as concerning an alleged infringement of the obligation to state reasons, they must be interpreted as relating to a manifest error of assessment. 78 Next, it must be pointed out that it is not for the Tribunal to substitute its assessment for that of the persons responsible for appraising the work of the person under appraisal, since the European Union institutions have a wide discretion in the appraisal of the work of their officials and staff members (see judgment of 13 September 2011 in Case F-4/10 Nastvogel v Council, paragraph 32). Thus it is not for the Tribunal, save in the case of factual errors, manifest error of assessment or misuse of powers, to review the merits of the assessment made by the administration of the occupational abilities of an official or a staff member where it involves complex value judgments which, by their very nature, are not amenable to objective verification (see the judgment of 25 October 2005 in Case T-96/04 Cwik v Commission, paragraph 41 and the case-law cited). 79 In the first place, the Tribunal observes that the remarks concerning the applicant’s behaviour must be read in the context in which they were made. In particular, the reporting officer noted the positive aspects of the applicant’s performance, stating, inter alia, that he performed very well, demonstrating a high level of organisation and a strong ability to carry out his tasks in a timely and effective manner. In addition, the reporting officer observed that the applicant successfully contributed to the activities of the legal team and that his advice was very much appreciated. It follows that, far from being statements relating to alleged ‘behavioural weaknesses’ or from being comparable to ‘negative remarks’ as the applicant claims, the disputed remarks must be regarded as suggestions indicating to the applicant the fields in which he could further improve his performance, which was already clearly appreciated by his superiors. 80 In the second place, so far as concerns the alleged psychological pressure to which the applicant was subject, this related to Ms A’s supposed wish to replace the applicant by Mr B. However, the Tribunal notes that the applicant merely makes assumptions without producing any evidence capable of proving his claims. 81 The only considerations put forward by the applicant in support of his arguments concern the alleged irregularities in Mr B’s recruitment procedure, the allocation to Mr B of files which were at the level of responsibility of an administrator and the publication of a new vacancy notice, the vacancy notice ECDC/CA/IV/2010/RMU-LO, concerning a post which the applicant considered to be identical to his own. Even if those factual elements could be regarded as indications of an intention to replace the applicant by Mr B, it is clear from the file that they have not been proved by the applicant. 82 First, in respect of the alleged irregularities in the recruitment of Mr B, the Tribunal has already observed in paragraph 58 above that the applicant has not provided any evidence of those irregularities. Even if it is established that Mr B was allocated files at the level of responsibility of an administrator, that is perfectly consistent with the functions carried out by Mr B, which were those of a ‘legal assistant’, like the applicant. Second, the applicant’s job description was set out in the vacancy notice relating to his post, confirmed by the report at the end of his probationary period and then amended by the description signed by the applicant himself on 21 September 2010. Also, the vacancy notice ECDC/CA/IV/2010/RMU-LO did not concern the same post as that of the applicant, as the different descriptions of the two posts show. 83 In the third place, so far as concerns the applicant’s workload, it must be stated that this was taken into consideration in the appraisal report, which indicates that his efficiency was above the level required for the post. In this connection, the applicant claims that he was recruited to deal with ‘all aspects of EU administrative law’ but had demonstrated knowledge at a ‘level well above’, having dealt with a very high number of files on data protection and on copyright law. However, it is sufficient to observe that the issues which related to data protection and to copyright were expressly provided for in the applicant’s job description, so that the fact that he took care of those matters did not exceed his job description. 84 In the fourth place, the appraisal report mentions that the achievement of the objective relating to the implementation of a computer application did not only depend upon the applicant’s activity but also on other factors, such as organisational changes within the unit and the existence of other, more pressing, objectives, so that the statement that that specific objective had not been achieved is merely a finding of fact and not an assessment of the applicant’s efficiency. 85 It follows that the present plea is not well founded and must therefore be rejected. 86 It follows from all the foregoing that the action must be dismissed in its entirety as unfounded. Costs 87 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 he or she is not to be ordered to pay any. Lastly, under Article 88 of the Rules of Procedure, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought. 88 It is apparent from the grounds stated above that the applicant has been unsuccessful in his action and the ECDC has expressly requested that the applicant be ordered to pay the costs. 89 As it is, the circumstances of the present case do not justify application of Article 87(2) of the Rules of Procedure. 90 In addition, at the hearing the applicant requested that the ECDC be ordered to pay all the costs where, in the event that the action were dismissed, the Tribunal based its decision on the arguments developed by the ECDC in the defence. The applicant is basing his request on an alleged failure to state adequate reasons in the appraisal report, a failure which forced him to bring the present action. However, in the light of the circumstances of the case, and in particular of the fact that the Tribunal has not found that the appraisal report was vitiated by any failure to state reasons, this request should not be granted. 91 It is therefore appropriate to rule that the applicant must bear his own costs and be ordered to pay the costs incurred by the ECDC. On those grounds, THE CIVIL SERVICE TRIBUNAL (Second Chamber) hereby: 1. Dismisses the action; 2. Orders Mr Ntouvas to bear his own costs and to pay the costs incurred by the European Center for Disease Prevention and Control. Rofes i Pujol Boruta Bradley Delivered in open court in Luxembourg on 11 December 2012. W. Hakenberg M.I. Rofes i Pujol Registrar President * Language of the case: English.