Judgment — ECLI:EU:F:2015:10
Date: 2015-03-18
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;Action for damages - unfounded

summary that weighs the strengths and weaknesses of the applicant; furthermore, the reasoning of the report was supplemented by the note of 23 May 2013 that the reporting officer drew up for the attention of the JEPC and that was copied to the applicant, which states the reasons why, in particular, the quality of the applicant’s decisions did not compensate for her shortcomings regarding meeting the set objectives and deadlines. In those circumstances, the applicant was able to understand exactly what was being alleged against her, without her needing an explanation of the method of calculation used in determining the averages for the department. Moreover, as already stated in paragraph 66 of the present judgment, it is not apparent from the reasoning of the contested appraisal report, or from the note of 23 May 2013, which is not even referred to in that report, that the reporting officer relied on a comparison of the results obtained by the applicant with those obtained by the other examiners of her department in order to find that the general assessment of her performance deserved only level 6. 92 In those circumstances, the sixth plea in law, alleging inadequate statement of reasons, must be rejected. The seventh plea in law, alleging breach of the principle of protection of legitimate expectations 93 The applicant points out that, in the development plan, it was indicated that if she met her revised objectives and ‘all other elements of her performance [were] in line with [those new objectives, a general] evaluation at … level 4 [would be] envisaged’. In so far as the insufficiency of her results is a consequence of factors other than her way of working, in particular the lack of clear guidelines following the IP Translator judgment, the fact that she was finally attributed a general assessment of level 6 constitutes, she claims, a breach of the principle of protection of legitimate expectations. 94 OHIM contends that the seventh plea should be rejected. 95 In that regard, it should be noted that the development plan, as drafted, could have led to confusion in the mind of the applicant, as it did not clearly state the consequences that failure to meet the objectives would have on her appraisal report. Notwithstanding that regrettable imprecision, it should be noted, as was stated in paragraph 87 of the present judgment, that the contested appraisal report is not vitiated, in any event, by any manifest error of assessment. In those circumstances, and without the need to recall the case-law definition of a breach of the principle of protection of legitimate expectations, since the applicant neither met the objectives set nor received an assessment corresponding to the level required for all the competencies appraised, the reporting officer was entitled to find that the general assessment of the applicant’s performance corresponded to level 6 and not level 4, without disregarding the principle of legitimate expectations nor the meaning of the development plan. The eighth plea in law, alleging breach of fiduciary duty 96 The applicant claims that the reporting officer, by adopting the 2011/2012 appraisal report, committed a breach of fiduciary duty on the ground, essentially, that she assessed the applicant’s performance according to the same criteria and under the same conditions as the other examiners, without taking her personal situation into account to assess compliance with the set objectives and deadlines, either with regard to her health, which resulted in an objective reduction in her working hours, or the specific complexity of her cases. Given that, as has been stated previously, the applicant was not in a different situation from that of the other examiners working on absolute grounds for refusal of applications for registration of a Community trade mark and working primarily in a less widely used language, that her state of health was duly taken into account when setting the objectives to be met and the complexity of the cases was the subject of a specific rating and was taken into account, such a plea in law, even if it is admissible, cannot be upheld. The ninth and last plea in law, alleging breach of the principle of equal treatment Arguments of the parties 97 The applicant submits her ninth plea in three parts. She claims, first, that she was in a different situation from that of the other examiners of the department, having regard, essentially, to her state of health and the complexity of her cases. Thus, it is claimed, the reporting officer should have assessed her performance in accordance with criteria other than those used to assess the performance of the other examiners. By using the same criteria, the reporting officer therefore breached the principle of equal treatment. 98 The reporting officer then breached that principle by assessing her performance on the basis of criteria other than those used to assess the performance of examiners who are, in fact, in a situation comparable to hers. 99 Finally, the reporting officer also breached that principle by treating the applicant less favourably than officials with competencies comparable to her own. 100 OHIM contends that the ninth plea should be rejected. Findings of the Tribunal 101 As regards the first complaint relating to the failure to take into account the applicant’s state of health or the complexity of the cases and the alleged difference of situation between that of the applicant and that of the other examiners, it must be rejected on the grounds set out in paragraphs 48, 60 and 66 of the present judgment. 102 As regards the second and third complaints, by which the applicant seeks, by contrast, to argue that she was treated differently from other officials in the same situation as her and that such treatment was unfavourable to her, it suffices to note that the applicant does not provide any evidence in support of that argument. 103 The ninth plea in law, alleging breach of the principle of equal treatment, must therefore be rejected. 104 In the light of all the foregoing, since all of the pleas in law have been rejected, the claim for annulment directed against the contested appraisal report must be rejected. 2. The claim for damages for the harm suffered 105 The applicant claims, first, that she was in a situation of permanent insecurity, particularly because of the pressure she had come under, which created a state of stress that aggravated her health problems. Indeed, that was the reason she was given sick leave and then worked half-time on medical grounds. 106 It must be noted, however, that the damage for which the applicant seeks compensation is due to non-decision-making conduct of OHIM, which was not the subject of a prior claim for compensation. As the proceedings are not, in any event, related to that point, the claim for damages for that head of damage, in respect of the alleged stress at work, cannot succeed. 107 The applicant claims, secondly, that the contested appraisal report caused her non-material harm in respect of the numerous illegalities with which it is vitiated. 108 As the claim for annulment directed against that report has been rejected without any illegality having been established, those claims for damages, therefore, must also be rejected. 109 It follows from all the foregoing that all the claims set out in the application must be rejected. Costs 110 Under Article 101 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 102(2) of that regulation, a successful party may be ordered to bear its own costs and to cover some or all of the costs incurred by the other party, if this appears justified by the conduct of that party, including before the proceedings were brought. 111 It is apparent from the grounds set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings OHIM has expressly requested that the applicant be ordered to pay the costs. 112 However, it is apparent from the case-file and the discussions at the hearing that OHIM gave rise to some confusion on the part of the applicant, both in the explanations of the reporting officer sent in response to the JEPC and copied to the applicant, relating in particular to the application of its internal rules, and in the explanations provided by the applicant’s superiors in the context of the development plan, by failing to state clearly, as mentioned in paragraph 95 of the present judgment, the consequences that plan would have on her appraisal report. Such ambiguity could have led the applicant to believe, in good faith, that OHIM had committed a manifest error in its assessment and to bring unnecessary legal proceedings. In those circumstances, it will be a fair reflection of the circumstances of the case to order OHIM to bear, in addition to its own costs, half of the costs incurred by the applicant. On those grounds, THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber) hereby: 1. Dismisses the action; 2. Declares that Ms Rajala is to bear half of her own costs; 3. Declares that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) is to bear its own costs and orders it to pay half of the costs incurred by Ms Rajala. Van Raepenbusch Kreppel Svenningsen Delivered in open court in Luxembourg on 18 March 2015. W. Hakenberg S. Van Raepenbusch Registrar President * Language of the case: English.