Judgment — ECLI:EU:T:2003:292
Date: 2003-11-05
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Reports;Freedom of trade union activity
Procedure: Staff cases - successful

SUMMARY — CASE T-98/02 
Summary 
1. Officials - Representation - Constraints associated with performance of duties 
as staff representative - Taking into account when staff report drawn up - Duties 
of assessors 
(Staff Regulations, Arts 24a and 43; Annex II, Art. 1, sixth para.) 
2. Officials - Reports procedure - Staff report - Drawing up - Officials 
performing duties as staff representative - System set up by the Commission — 
Duties of assessors - Account taken of opinions of the ad hoc staff reports group 
and the ad hoc joint appeals committee 
3. Officials - Reports procedure - Staff report - Obligation to state reasons -
Scope 
(Staff Regulations, Art. 43) 
1. The activities associated with staff representation must be taken into consideration 
when the staff reports of the officials concerned are drawn up, in such a way that 
they are not penalised for carrying out such activities. Consequently, even though 
the assessor and appeal assessor are authorised solely to assess the performance in 
the post to which he is assigned of an official who has a mandate as staff 
representative, to the exclusion of the activities connected with that mandate, which 
are not within their competence, they must none the less take account of the 
constraints connected with the exercise of those duties as staff representative. More 
specifically, they must take account (where appropriate) of the fact that the number 
of days' work which the official concerned has been able to provide in his 
department is less than the normal number of working days in the reference period 
as provided for in the Staff Regulations. The proficiency and work of that official 
must therefore be assessed, for the purposes of the staff report, on the basis of the 
performance which the institution is normally entitled to expect from an official of 
the same grade during a period corresponding to the time he has actually devoted 
to his activity in the branch to which he is posted after deducting the time spent, 
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LEBEDEF CAPONI v. COMMISSION 
under the conditions laid down in the Staff Regulations, in his activity as staff 
representative. 
(see para. 44) 
See: T-23/91 Maurissen v Court of Auditors [19921 ECR II-2377. para. 14 
2. Although, where an institution has not adopted a special system for reporting on 
officials performing staff representation activities, the assessors are not competent 
to evaluate those activities, that is not the case where an ad hoc assessment system 
has been set up for those officials. 
Thus, in the system introduced at the Commission, an ad hoc staff reports group 
and, where appropriate, an ad hoc joint appeals committee are required to intervene. 
The purpose of consulting the ad hoc staff reports group is to provide the assessor 
with the information he needs to assess the duties which the subject of the report 
performs as a staff or trade union representative, given that those duties are 
regarded as forming part of the services which such an official is required to 
provide in his institution. Furthermore, under the second indent of the sixth 
paragraph of Article 3 and Article 5 of the general provisions adopted by the 
Commission for the implementation of Article 43 of the Staff Regulations, the 
assessor is required to consult the ad hoc staff reports group before drawing up the 
preliminary draft report. 
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SUMMARY - CASE T-98/02 
It follows that the assessor is required to take account of the opinion of the ad hoc 
staff reports group when drawing up the staff report of an official performing staff 
representation or trade union activities. However, he is not obliged to follow that 
opinion. If he does not, he must then explain the reasons which led him to depart 
from it. Simply attaching the opinion to the staff report is not sufficient to be 
regarded as satisfying the requirement to provide a statement of reasons. 
Those principles also apply, mutatis mutandis, to the opinion of the ad hoc joint 
appeals committee. According to Annex II of the general provisions implementing 
Article 43 of the Staff Regulations, the opinion of that committee must be taken into 
account by the appeal assessor when drawing up the staff report. 
(see paras 46-51) 
See: Maurissen v Court of Auditors, cited earlier 
3. Since the staff report contains a sufficient statement of reasons, the appeal 
assessor cannot be required to provide further explanations of the reasons which led 
him not to follow the recommendations of the Joint Committee on Staff Reports 
unless that advisory body's opinion mentions special circumstances likely to cast 
doubt on the validity or proper foundation of the original assessment and therefore 
calls for a specific assessment from the appeal assessor as to any appropriate 
conclusions to be drawn from those circumstances. 
(see para. 61) 
See: T-187/01 Mellone v Commission [2002] ECR-SC I-A-81 and II-389, para. 33 
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