Judgment — ECLI:EU:F:2014:180
Date: 2014-07-08
Language of the case: English
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - unfounded

summary form. In this respect, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential submissions in law which must appear in the application. It is not for the Tribunal to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see, to that effect, Honeywell v Commission, T‑209/01, EU:T:2005:455, paragraphs 56 and 57, and Angelidis v Parliament, T‑424/04, EU:T:2006:376, paragraphs 39 to 41). 89 Consequently, the fourth plea is inadmissible. The fifth plea, alleging infringement of the duty to have regard for the welfare of officials Arguments of the parties 90 By his fifth plea, the applicant submits that OHIM infringed the duty to have regard for the welfare of officials in so far as not all of the applicant’s co-signing colleagues were heard and in so far as the countersigning officer was not replaced during the appraisal period. 91 OHIM contends that the fifth plea must be rejected. Findings of the Tribunal 92 Since the fifth plea was merely stated and was not developed in any way in the application, it must be declared inadmissible pursuant to Article 35(1)(e) of the Rules of Procedure. The sixth plea, alleging infringement of the principle of protection of legitimate expectations Arguments of the parties 93 The applicant claims that he was entitled to expect the reporting officer to recognise the corrective measures which he had taken in consequence of the warning of the reporting officer and countersigning officer in the mid-term review and to draw up a report fairly reflecting his work throughout the appraisal period. The general assessment that ‘[t]he efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied’ is not only incorrect but also perverse, since he had made the necessary improvements and had demonstrated this over six months. 94 OHIM contends that the sixth plea should be rejected. Findings of the Tribunal 95 It is settled case-law that the principle of the protection of legitimate expectations is one of the fundamental principles of the European Union (Dürbeck, 112/80, EU:C:1981:94, paragraph 48). Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances, from authorised and reliable sources, must have been provided to the person concerned by the administration (judgment in Mellett v Court of Justice, T‑66/96 and T‑221/97, EU:T:1998:187, paragraph 104). Secondly, those assurances must be such as to lead to legitimate expectations on the part of the person to whom they are addressed (Latham v Commission, T‑3/92, EU:T:1994:15, paragraph 58; Galtieri v Parliament, T‑235/94, EU:T:1996:22, paragraph 63; and Maccaferri v Commission, T‑56/96, EU:T:1998:33, paragraphs 54 and 55). Thirdly, the assurances given must comply with the applicable rules (see, to that effect, Vlachou v Court of Auditors, 162/84, EU:C:1986:56, paragraph 6). 96 The applicant has not identified the alleged precise assurances provided by OHIM which led to a legitimate expectation on his part that he would obtain level 5 as a general assessment. On the contrary, as observed at paragraph 73 above, the reporting officer’s intention, expressed at the appraisal interview of 20 October 2011, to award him level 5 as a general assessment was only a projected assessment communicated by way of an indication. Therefore, the applicant cannot legitimately claim that the reporting officer’s intention to award him level 5 as a general assessment constituted a precise, unconditional and consistent notification that he would be assessed at this level. 97 The sixth plea must therefore be rejected. The seventh plea, alleging infringement of the principle of equal treatment Arguments of the parties 98 The applicant submits that he has been discriminated against on the ground that he received a general assessment normally reserved to officials whose productivity is 20% lower than the objectives set, even though his productivity was not more than 17% lower than those objectives. In that connection, the applicant points out that the reporting officer did not provide the JEPC with the details concerning his productivity which the JEPC asked her for. The fact that the new criterion concerning the monthly distribution of decisions drafted was introduced retrospectively is also discriminatory, according to the applicant. 99 OHIM contends that the seventh plea should be rejected. Findings of the Tribunal 100 So far as concerns the applicant’s argument that he received a general assessment normally reserved to officials whose productivity is 20% lower than the objectives set, even though his productivity was not more than 17% lower than the objectives set, it can be rejected by reference to the grounds set out in paragraph 67 above. As regards the argument concerning the retrospective introduction of the criterion that decisions should be produced at regular intervals, it can be rejected by reference to the grounds set out at paragraph 58 above. Accordingly, the seventh plea must be rejected. The eighth plea, alleging infringement of the obligation to state reasons Arguments of the parties 101 The applicant claims: first, that the reporting officer and the countersigning officer did not satisfy their obligation to state special reasons in order to justify their refusal to follow the recommendations of the JEPC; secondly, that the two passages, one entirely favourable, the other merely recounting a fact, in the ‘Conduct in the service’ section of the contested appraisal report, relied on by the reporting officer and countersigning officer in order to justify his poor score, do not constitute a sufficient statement of reasons and, thirdly, that the general assessment of his performance is inconsistent with the detailed comments put forward to justify the poor score awarded to him. 102 OHIM contends that the eighth plea must be rejected. Findings of the Tribunal 103 As regards the alleged failure to state reasons in the reporting officer’s decision, communicated by note of 22 May 2012, not to follow all the JEPC’s recommendations, it must be observed that the reasons why the reporting officer wished to confirm the contested appraisal report and to depart from the JEPC’s recommendations, with the exception of that concerning the quality of the applicant’s work, are clearly shown in that note. 104 The applicant’s argument that, in the note of 22 May 2012, the reporting officer described the fact that he reacted positively to the warning given by his line managers in the mid-term review as ‘a serious failure in the conduct in the service’ is based on a clear misreading of that note. It is clear from the criticised passage of the note at issue that, by writing that ‘this was considered a serious failure in the conduct in the service’, the reporting officer was referring to the fact that the applicant increased his productivity only after receiving a serious warning from his line managers and after monitoring measures had been put in place. 105 The eighth plea must therefore be rejected. The ninth plea, alleging misuse of powers Arguments of the parties 106 In his ninth plea, the applicant claims that, by the contested appraisal report, OHIM wished to punish him for his audacity in publishing an article criticising several aspects of the recruitment policy at the time when the countersigning officer directed the Human Resources department and the approach adopted in opposition cases under the countersigning officer. In this connection, he submits, first, that there is no event between the 20 October 2011 and 9 January 2012 that might explain the discrepancy between the appraisal interview and the contested appraisal report. Secondly, the applicant submits that the countersigning officer was displeased by his article, which is apparent from the email which the reporting officer sent the applicant on 15 November 2011 and the interview which he had with the countersigning officer, as a result of that email, on 17 November 2011. Thirdly, the reporting officer and the countersigning officer did not dispute those facts in the action before the JEPC. 107 OHIM contends that the ninth plea should be rejected. Findings of the Tribunal 108 It is settled case-law that there is no misuse of powers, of which abuse of process is merely one form, unless there is objective, relevant and consistent evidence which makes it possible to establish that the contested act pursued an aim other than that ascribed to it by the applicable provisions of the Staff Regulations (see Skareby v Commission, F‑46/06, EU:F:2008:26, paragraph 156). 109 In that respect, it is not sufficient for the applicant to refer to certain facts in support of his claims; he must also adduce evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability, failing which the material accuracy of OHIM’s claims cannot be called into question (Skareby v Commission, EU:F:2008:26, paragraph 157). 110 So far as concerns the alleged discrepancy between the appraisal meeting and the contested appraisal report, it is sufficient to refer to paragraphs 52 and 53 above. 111 The claim that the countersigning officer was displeased by the applicant’s article, even if it were proved, is not, given the complete absence of other evidence which is sufficiently specific, objective and consistent, such as to warrant the claim that the countersigning officer punished the applicant by means of the contested appraisal report for publishing that article. Lastly, the fact that the reporting officer and the countersigning officer did not adopt a position on the applicant’s claims in the action before the JEPC in no way proves that those claims are well founded. 112 It is therefore appropriate to hold that the plea alleging misuse of powers must be rejected as unfounded. 113 Consequently, in the light of all the foregoing, the claims for annulment must be rejected. 2. The claims for damages Arguments of the parties 114 The applicant requests that OHIM be ordered to pay him damages of an appropriate amount left to the Tribunal’s discretion, which should be at least EUR 500, in compensation for the non-material harm allegedly suffered by him. 115 OHIM contends that the claim for damages should be rejected. Findings of the Tribunal 116 In accordance with settled case-law concerning civil service proceedings, where an application for damages is closely linked with an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for damages (Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43; Fries Guggenheim v Cedefop, F‑47/09, EU:F:2010:36, paragraph 119; and Časta v Commission, F‑40/09, EU:F:2010:74, paragraph 94). 117 In the present case, the claims for annulment have been rejected. 118 Accordingly, the claim for damages must also be rejected. 119 It follows from all the foregoing that the action must be dismissed in its entirety. Costs 120 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. 121 It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its claims OHIM has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant must bear his own costs and is ordered to pay the costs incurred by OHIM. On those grounds, THE CIVIL SERVICE TRIBUNAL (Third Chamber) hereby: 1. Dismisses the action; 2. Declares that Mr Morgan is to bear his own costs and orders him to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs). Van Raepenbusch Barents Bradley Delivered in open court in Luxembourg on 8 July 2014. W. Hakenberg S. Van Raepenbusch Registrar President * Language of the case: English.