Information;Judgment — ECLI:EU:T:2019:683
Date: 2019-09-24
Language of the case: English;French
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

Summary Assessments’. Consequently, it is not reasonable to expect the two appraisers to mention all the duties and tasks completed by the applicant throughout the period under consideration. A fortiori given that, as is apparent from the documents before the Court, the deputy head of division reminded the applicant on a number of occasions that that task was not regarded as a priority. 114 Secondly, the applicant claims that none of the tasks he was given were supervised by the first appraiser and that the second appraiser almost systematically communicated with him indirectly through the principal supervisor. 115 That argument must also be rejected. 116 It cannot be disputed that, because of their hierarchical relationship with the applicant, the two appraisers, namely the deputy head of division and the head of division, were responsible for the supervision and completion of the tasks assigned to the applicant. In addition, the applicant himself refers, in his application, to two emails sent by his head of division on 25 May and 4 June 2016 which were addressed to him and others. In those emails, the head of division made positive comments about the team’s work in completing the drafting of two notes relating to the supervisory review and evaluation process and the less significant institutions risk assessment system The applicant cannot therefore validly maintain that his two appraisers did not supervise the tasks he completed. 117 Thirdly, the applicant maintains that, although he suggested organising meetings with his line managers in order to clarify the issues raised in his appraisal, his suggestion was rejected. 118 In that regard, it is not apparent from the documents before the Court and, in particular, from the applicant’s comments regarding his 2016 appraisal report which were submitted as an annex to the application, that he had suggested holding a meeting with his line managers and other colleagues with a view to clarifying the issues raised in his assessment and that that suggestion was rejected. 119 Fourthly, the applicant claims that several statements in the 2016 appraisal report are incorrect. In particular, he submits that there is no evidence supporting the first appraiser’s statement that the applicant failed to meet deadlines, which put pressure on the other team members and his line managers. In addition, he claims that, contrary to the statements made by his first appraiser, his performance was not unsatisfactory in April 2016 and that the statements regarding the alleged poor quality of his work and English drafting are unfounded. He adds that he did complete the task of drafting a note for the supervisory board on the supervisory review and evaluation process (‘SREP’) timeline. 120 Those arguments must be rejected. 121 The applicant disagrees with his appraisers’ comments without furnishing any proof to support his claims. More specifically, the comment in the 2015 appraisal report that the applicant completed his tasks ‘within the deadlines’, does not in itself contradict, as is claimed by the applicant, the comment in the 2016 appraisal report, which thus concerned the following year, that ‘on several occasions, he missed deadlines which created pressure on the other team members’. That is the case a fortiori since the applicant has not adduced any evidence in that regard, whereas, in the 2016 appraisal report, the first appraiser gives a specific example, namely the task of identifying the changes arising from the update of the ‘SSM manual’. 122 Moreover, the applicant is unable to substantiate his claims regarding not only the deficiencies in his performance, as noted by the first appraiser in respect of the month of April 2016, but also the task of drafting a note for the supervisory board on the SREP timeline and the fact that, linguistically, his work required fundamental revision. 123 In that regard, the applicant states that he has worked in English, in an international environment, since 1994 and that his Test of English for International Communication (‘TOEIC’) certificate indicates a score of 940, without specifying the score range for that test. However, in view, in particular, of the fact that the applicant worked as a senior supervisor of prudential supervision, those facts do not necessarily mean that he had the level of English required to complete the tasks he was given by his line managers. That is confirmed by the minutes, dated 19 July 2016, of the applicant’s meeting on 23 June 2016 with his superiors regarding the interim assessment of the quality of his work, which states, in particular, that: ‘… the quality of [the applicant’s] output did not meet basic expectations, for major (structural and substantial) changes to the draft note [regarding the SREP timeline] needed to be made. The lack of … efficient drafting skills were mentioned as the main concerns. The management also clarified that even if basic expectations were met by [the applicant], the requirements for a senior supervisor would still be substantially higher than the performance currently observed.’ It follows that the assessment of the first appraiser in the 2016 appraisal report regarding the linguistic aspect of the documents drafted by the applicant is not vitiated by a manifest error of assessment. 124 In addition, the applicant’s claims concerning his satisfactory completion of tasks relating to internal governance and risk management, the significant institutions manual and the note for the supervisory board are not sufficiently established. As regards the task relating to internal governance and risk management, it is apparent from the documents before the Court that the applicant’s line manager clearly informed the applicant, on two occasions, that he was not satisfied with the applicant’s performance of that specific task. As regards the task relating to the note for the supervisory board, as has already been stated in paragraph 102 above, the applicant’s line managers gave him negative feedback regarding the quality of his performance in that regard in July 2016. The relevance of the assessments of the applicant’s line managers in that respect is corroborated by the comments of the project coordinator, who also referred to the applicant’s unsatisfactory performance. 125 Moreover, the encouraging feedback, noted by the applicant, from colleagues and persons outside the ECB, is not relevant for the purpose of establishing a manifest error of assessment in the 2016 appraisal report, since it does not come from his line managers. As regards the two emails with a positive tone sent on 25 May and 4 June 2016 by the applicant’s head of division, in view, inter alia, of their limited number, of the fact that they were not addressed solely to the applicant but also to other members of his team and, above all, of the considerations set out in paragraphs 121 to 124 above, those emails are not sufficient to establish that the 2016 appraisal report was vitiated by manifest errors of assessment. 126 Lastly, in the light of the fact that the comments made by the appraisers are corroborated by the documents before the Court, the applicant’s claims in connection with the tasks relating to certain significant changes made to the significant institutions manual, the execution of the monitoring of all passporting procedures and the fact that he was moved away from methodological tasks, do not render the appraisers’ assessments in the 2016 appraisal report implausible. In any event, as noted by the ECB, the applicant worked on matters relating to the issuing of passports for only a few days. As regards the argument concerning the applicant’s wish to work on matters relating to methodology and the refusal of his line managers to give him such tasks, even if those factors may have had an impact on the relevance of his appraisers’ assessments, it is clear that that is merely a subjective assessment of the applicant, which is not corroborated by the documents in the file. 127 Fifthly, the applicant considers that there was a structural problem relating to the workload in his division, which was not sufficiently taken into account by his appraisers. Lastly, he notes that his division obtained a particularly low score in the survey carried out by an outside company relating to the staff sentiment at the ECB, carried out on 27 May 2015. 128 As regards the heavy workload in the applicant’s division, the applicant has not sufficiently explained the impact that that fact, which affected all the workers in his division, may have had on his appraisal report. The same applies to the results of the staff survey cited by the applicant. Even if the results of that survey highlighted unfavourable working conditions in his division and were also negative in respect of his head of division, they would not be relevant for the purposes of establishing that the 2016 appraisal report is vitiated by a manifest error of assessment. In any event, it is apparent from the results of that survey that the applicant is selective in choosing statistics given that he failed to mention the positive results of the survey in respect of, inter alia, his head of division. 129 In the light of the foregoing, the arguments put forward by the applicant are not sufficient to render the assessments made by the appraisers in his 2016 appraisal report implausible. Consequently, the assessments at issue may be accepted as valid. 130 The present plea must therefore be rejected as unfounded and, more generally, the claim for annulment of the 2016 appraisal report, must also be rejected. The 2016 ASBR decision 131 In support of his claim for annulment of the 2016 ASBR decision, the applicant puts forward three pleas in law, alleging, first, that the ASBR guidelines are unlawful, breach of the obligation to state reasons and breach of the principle of legal certainty, secondly, failure to adequately explain the background of the applicant’s salary award and lack of transparency and, thirdly, a manifest error of assessment. 132 Given that some of the complaints raised in support of those three pleas overlap, in particular as regards the plea relating to the obligation to state reasons, those pleas will be examined together. 133 The applicant raises a plea of illegality in respect of the ASBR guidelines. He claims that the awarding of points under the ASBR procedure is not based on precise assessment criteria and therefore lacks clarity and transparency. 134 In particular, the applicant maintains that, in so far as the ASBR guidelines provide only for an oral statement of reasons by the line managers of the persons concerned, compliance with the obligation to state reasons is not guaranteed. He adds that the uncertainty arising from the ASBR guidelines may have a negative impact on the staff member’s chances of being awarded a contract for an indefinite period since ASBR decisions have become a crucial element in the conversion of contracts. 135 In addition, the applicant considers that there was a lack of transparency and a breach of the obligation to state reasons since he did not receive any due explanation regarding the background of his performance and the annual salary increase of one step, in either absolute or relative terms. 136 Lastly, the applicant claims that, as his assessment was vitiated by a number of irregularities, those irregularities also ‘undermined’ the 2016 ASBR decision. Given that the conclusions of the ASBR exercise must be consistent with those of the appraisal exercise, he considers that the 2016 ASBR decision was vitiated by a manifest error of assessment. 137 The ECB contends that the applicant has no legitimate interest in bringing proceedings because he was indeed provided with written reasons for his 2016 ASBR decision, namely the statement concerning the main points discussed during the applicant’s meetings with his line manager regarding the background of his 2016 ASBR decision’, dated 20 July 2017 and annexed to the decision on his grievance of 28 July 2017. 138 The ECB also disputes the merits of the arguments put forward by the applicant. 139 It should be noted at the outset that, as regards the plea of inadmissibility put forward by the ECB concerning the applicant’s alleged lack of interest in bringing proceedings, it is settled case-law that for an action to be admissible, the applicant must have, at the time of bringing the action, a vested and present interest, which is sufficiently established, in having the individual contested decisions annulled and such an interest presupposes that the action is likely, if successful, to procure an actual advantage for the applicant (see, to that effect, judgment of 9 December 2010, Commission v Strack, T‑526/08 P, EU:T:2010:506, paragraph 43 and the case-law cited). 140 In the present case, the parties do not dispute the fact that the annulment of the 2016 ASBR decision would procure an advantage for the applicant since the ECB would subsequently be forced to reinitiate the 2016 ASBR and possibly, as a result, to reassess the number of steps to be awarded to the applicant. Accordingly, the ECB’s plea of inadmissibility cannot be upheld. 141 In so far as, by that plea of inadmissibility, the ECB challenges the applicant’s complaint that he was not adequately informed of the reasons for the 2016 ASBR decision, it is necessary to examine the arguments relating to that complaint in the context of the examination of the merits of that complaint. 142 It should be noted that guidelines, although not constituting the legal basis of the 2016 ASBR decision, may be contested by means of an objection of illegality if they were used for the adoption of that act (see, to that effect, judgment of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101 paragraph 31). 143 Moreover, it follows from case-law that an act of general application within the meaning of Article 277 TFEU is an act which applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in the abstract (see, to that effect, judgments of 27 March 1990, Cargill and Others v Commission, C‑229/88, EU:C:1990:138, paragraph 18, and of 21 October 2010, Agapiou Joséphidès v Commission and EACEA, T‑439/08, not published, EU:T:2010:442, paragraph 53). 144 In the present case, it is apparent from the documents before the Court that the ASBR guidelines are an act of general application since they apply to objectively determined situations and produce their legal effects with respect to categories of persons envisaged in the abstract, namely the members of staff of the ECB. 145 Furthermore, it is not in dispute that the 2016 ASBR decision was adopted in accordance with the principles laid down by the ASBR guidelines. Accordingly, there is a direct legal connection between the two acts. In addition, there is no doubt that the ASBR guidelines apply to the situation at issue, since it concerns a dispute concerning the appraisal of a staff member of the ECB under the ASBR procedure. 146 As regards the merits of the present claims for annulment, they are unfounded. First of all, contrary to the claims of the applicant, point 5 of the ASBR guidelines provides that individual letters ‘are prepared by DG-H’ and handed out to staff members by local management. That is what happened in the present case, since a letter dated 24 May 2017 was addressed to the applicant personally, stating: ‘As explained by your management, this [salary] award is based on your personal development of relevance to the ECB, as well as on your contribution to the success of the business area and the ECB at large, as compared to the contribution of the other staff members in your business area. Your award has also taken into account your current level within your salary band and the concomitant expectations concerning your performance and personal development.’ 147 In addition, point 5 of the ASBR guidelines also provides that, when giving staff members the letter regarding the salary increase, line managers should explain the background of the decision relating to their award, based on their relative contribution. In the present case, it is not disputed by the parties that the applicant was informed by his superiors of the background of the adoption of the 2016 ASBR decision and his award of one step. 148 That is a fortiori the case since the document entitled ‘Declaration about the main points discussed during the meetings with [the applicant] regarding the background of his 2016 ASBR decision’ of 20 July 2017, drafted by his head of division and attached to the decision rejecting his administrative grievance of 28 July 2017, refers to two meetings at which the applicant was present, which took place on 11 January and 1 June 2017, during which the 2016 ASBR decision was raised and the applicant was informed in detail of the reasons for that decision. 149 It follows from the foregoing that, in the present case, the administration did not confine itself to merely informing the applicant orally, through his superiors, of his ASBR award, but had already sent to him a personal letter listing the factors and criteria it relied on when deciding to award him one salary step. 150 In that regard, and as regards the obligation to state reasons, it must be observed that, while the effect of that obligation is that when the administration, in the present case the ECB, exercises its powers it must comply with certain requirements, the effect cannot be that the ECB is compelled to abandon the wide discretion which it has decided to maintain in implementing its policy on awarding individual salary increases and to establish in a document the assessment criteria which it intends to use in order to exercise its discretion. 151 Likewise, as regards the principle of legal certainty, relied on by the applicant, it must be noted that, while that principle requires administrative authorities, when adopting rules, to draft them in such a way that they are sufficiently clear, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly, that principle does not oblige an administrative authority, in this case the ECB, to restrict the discretion which it means to exercise in relation to individual salary increases by adopting implementing measures to establish how it intends to exercise that discretion in the future. 152 Lastly, the plea alleging a manifest error of assessment is based on a mistaken premiss, in so far as the applicant considers that his 2016 assessment was vitiated by a number of irregularities that undermined the 2016 ASBR decision. Given that the claims directed against the 2016 appraisal report have been rejected, that plea for annulment is unfounded. 153 Moreover, contrary to the claims of the applicant, there is no inconsistency between his appraisal and the ASBR exercise. The fact that he was awarded one step in the 2016 ASBR is consistent with the critical assessments of the applicant’s appraisers in his 2016 appraisal report. In so far as the applicant claims, in the present plea, a lack of consistency between the conclusions in the 2016 ASBR decision and his 2016 appraisal report, it should be noted that, according to the ASBR guidelines, that procedure is a separate assessment independent from the Appraisal. As a result, a direct read across from one exercise to the other is not possible.’ 154 In the light of the foregoing, the ASBR guidelines clearly and sufficiently establish the administration’s obligation to include a statement of reasons in the 2016 ASBR decision. Moreover, that is what happened in the present case, given that the applicant received a personal letter in that regard and, as is clear from the statement made by his line manager of 20 July 2017, the applicant was subsequently informed by his head of division of the background to the adoption of the 2016 ASBR decision. 155 The claims for annulment of the 2016 ASBR decision, alleging that the ASBR guidelines are unlawful, breach of the obligation to state reasons, breach of the principle of legal certainty, and manifest error of assessment, must therefore be rejected. 156 In conclusion, in the light of all the above considerations, the claims for annulment must be declared unfounded in their entirety and, accordingly, they must be rejected. The claim for damages 157 The applicant seeks compensation, in the amount of EUR 20 000, for the non-material damage he claims to have suffered. He claims the non-material damage resulted from the lack of care in dealing with his file and the manner in which that affected his dignity, health and well-being, in addition to the negative repercussions it had on his professional performance. 158 The ECB contends that the rejection of the heads of claim seeking annulment must necessarily lead to the rejection of the claim for damages. 159 It must be observed that, in accordance with settled case-law, claims for compensation, submitted together with claims for annulment which have no foundation in law, are themselves without any foundation in law if they are closely linked to the claims for annulment (see judgment of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101, paragraph 86 and the case-law cited). 160 The applicant’s claims for compensation, submitted together with the claims for annulment, are based on the alleged illegality of the contested acts and are therefore closely linked to the claims for annulment. The claims for annulment have been declared unfounded in their entirety and have been rejected on that basis. 161 The claim for compensation must consequently also be rejected. Costs 162 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. 163 In the present case, since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the ECB. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders VF to pay the costs. Berardis Spielmann Csehi Delivered in open court in Luxembourg on 24 September 2019. E. Coulon G. Berardis Registrar President Table of contents Legal framework Framework Agreement on fixed-term work Relevant provisions relating to the ECB General provisions Annual appraisal report The ASBR Background to the dispute Facts relating to the applicant’s appraisal and ASBR for 2016 Facts relating to the non-conversion of the applicant’s contract Procedure and forms of order sought Law Subject matter of the action The heads of claim seeking annulment Preliminary observations The non-conversion decision of 2017 – The first plea in law, alleging infringement, by the conversion policy, of Article 10(c) of the Conditions of Employment and of Article 2.0 of the Staff Rules – The second plea in law, alleging infringement of Directive 1999/70 by Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules The 2016 appraisal report – The first plea in law, alleging a procedural irregularity and lack of dialogue – The second plea in law, alleging infringement of the obligation to state reasons and the principle of good administration and due care, and lack of information – The third plea in law, alleging manifest errors of assessment The 2016 ASBR decision The claim for damages Costs * Language of the case: English.