Opinion of the Advocate General — ECLI:EU:C:2006:483
Date: 2006-07-13
Language of the case: French
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Appeal - successful

Summary of the Judgment Officials – Reports procedure – Observance of the rights of the defence (Staff Regulations, Art. 26, first and second paras, and Art. 43) As a procedural guarantee, the fundamental principle that the rights of the defence must be observed cannot be interpreted, in the field of the appraisal of European Communities staff, as imposing, before the procedure leading to such an appraisal, any obligation to give prior warning. That principle must allow the individual concerned, during the appraisal procedure, to defend himself against any criticism of his conduct which might be taken into account, but its role is not to allow him to adapt his behaviour in the future in order to avoid the conduct proven being actually taken into account against him. Improving one’s conduct in the service is an objective which goes beyond the scope of observance of the rights of the defence. That objective is in fact served by the staff report. In addition, the first and second paragraphs of Article 26 of the Staff Regulations, the purpose of which is to guarantee the official’s right of defence relate to documents which already exist, and preclude, during the appraisal procedure, such documents from being taken into account to the detriment of the official under appraisal without having been communicated to him before being placed on his personal file, but do not require documents formalising any criticism of the conduct of the individual concerned to be prepared beforehand. It follows that neither the fundamental principle of observance of the rights of the defence nor the first and second paragraphs of Article 26 of the Staff Regulations make the fact that a matter may be held against an official in his appraisal report subject to the drawing-up, prior to the procedure leading to the adoption of that report, of a written warning and the communication of that warning to the individual concerned. (see paras 39, 41, 43-44, 52)