JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
9 February 2022 (*)
(Civil service – Members of the temporary staff – ECDC staff members – Appraisal report for 2018 – Freedom of expression – Obligation to state reasons – Case requiring a specific statement of reasons – Manifest error of assessment – Duty to have regard for the welfare of officials – Right to be heard)
In Case T‑33/20,
Ivo Van Walle, residing in Järfälla (Sweden), represented by L. Levi and A. Champetier, lawyers,
applicant,
v
European Centre for Disease Prevention and Control (ECDC), represented by J. Mannheim, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
APPLICATION under Article 270 TFEU for annulment of the applicant’s appraisal report for 2018,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni (Rapporteur), President, P. Nihoul and J. Martín y Pérez de Nanclares, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 17 September 2021,
gives the following
Judgment
Legal framework
1        As provided in Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’):
‘The ability, efficiency and conduct in the service of each official shall be the subject of an annual report as provided for by the appointing authority of each institution in accordance with Article 110. That report shall state whether or not the performance level of the official has been satisfactory. The appointing authority of each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before the lodging of a complaint as referred to in Article 90(2).
…
The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant.’
2        Article 15(2) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) provides:
‘The provisions of Article 43 of the Staff Regulations, concerning reports, shall apply by analogy.’
3        On 13 April 2015, the European Centre for Disease Prevention and Control (ECDC) adopted Implementing rule No 20 relating to the appraisal of temporary staff (‘the Implementing Rule’). Article 2 of that rule provides:
‘1.      Every year, a report covering the period from 1 January to 31 December of the preceding year (hereinafter referred to as “the reporting period”) shall be drawn up for each jobholder …
2.      Each report shall include an individual qualitative appraisal of the jobholder’s efficiency, ability and conduct in the service. The report shall be concerned with all the jobholder’s professional activities.
3.      Each report shall also include a conclusion on whether the jobholder’s performance has been satisfactory. The conclusion that the jobholder’s performance has been unsatisfactory shall be based on factual elements.’
4        Under Article 3(1) to (3) of the Implementing Rule:
‘1.      The reporting officer shall be the jobholder’s direct superior and, as a general rule, the jobholder’s head of unit on 1 December of the reporting period. …
2.      The appeal assessor shall be the direct superior of the reporting officer at the time of the superior’s first intervention in the appraisal procedure as laid down in Article 6. …
3.      In exceptional cases, justified by the desire to act in the interests of the jobholder or in the event of a change in the organisation chart of a service, the Director may derogate from paragraphs 1 and 2 above to take account of the specific context arising from the circumstances or the change respectively.’
5        Article 4 of the Implementing Rule provides:
‘1.      A report concluding that the jobholder’s performance has been unsatisfactory needs to be confirmed by a countersigning officer, except where the Director acts as reporting officer.
2.      Countersigning officer shall be the direct superior of the reporting officer …
3.      The appeal assessor shall be the Director carrying out this duty at the time of his first intervention in the appraisal procedure. …’
6        Under Article 5 of the Implementing Rule
‘The individual qualitative appraisal shall be based on the ability, efficiency and conduct in the service of the jobholder, taking account of the context within which the jobholder has performed his duties. The individual qualitative appraisal shall not include a comparison with the performance of other individual jobholders.’
7        Article 7 of the Implementing Rule provides:
‘1.      The jobholder’s reasoned refusal to accept the report in accordance with Article 6(8) shall automatically mean referral of the matter to the appeal assessor. The jobholder may withdraw his reasoned refusal to accept the report at any time.
2.      Upon a request by the jobholder expressed in his reasoned refusal to accept the report, the appeal assessor shall hold a dialogue with the jobholder within ten working days of the date of the reasoned refusal. …
3.      Within 20 working days of the date of the reasoned refusal to accept the report and following the dialogue provided for in paragraph 2, the appeal assessor shall confirm the report or amend it, giving reasons.
In the case of a report assessing the jobholder’s performance as unsatisfactory, the appeal assessor shall consult the Agency entity in charge of human resources before taking his decision; the latter may in turn consult the Joint Committee. The decision of the appeal assessor may not be based on facts which the jobholder has not yet had an opportunity to comment upon in the course of the appraisal or the appeal procedure, unless he is given an opportunity to do so by the appeal assessor in good time.
4.      The report shall become final by decision of the appeal assessor. …’
Background to the dispute
8        The applicant, Mr Ivo Van Walle, was recruited on 1 November 2010 by ECDC as a member of the temporary staff. On 23 March 2015 his contract was renewed until 31 October 2020. At that stage, ECDC decided not to renew his contract.
9        On 18 July 2017, ECDC published a vacancy notice for a post for which the applicant applied on 27 August 2017. His application was rejected by decision of 26 October 2017. On 23 January 2018, the applicant lodged a complaint against the decision rejecting his application on the basis of Article 90(2) of the Staff Regulations. His complaint was rejected on 22 May 2018.
10      In 2018, the applicant’s appraisal in the context of the staff development dialogue for 2017 led to the conclusion that his performance had been satisfactory. That appraisal nevertheless contained negative comments on his conduct. On 12 March 2018, the applicant contested that appraisal but his challenge was rejected by decision of 11 April 2018. On 13 May 2018, the applicant submitted a complaint under Article 90(2) of the Staff Regulations.
11      On the same day, the applicant submitted a request for assistance under Article 24 of the Staff Regulations on account of a difficult working relationship with his line manager. Following that request, the Director of ECDC invited him, on 1 June 2018, to submit additional information and evidence, which was provided on 23 August 2018. By decision of 25 September 2018, the Director rejected the request for assistance made by the applicant and proposed ‘team coaching’ sessions. The first session, scheduled for 23 April 2019, was postponed until 13 May 2019.
12      Jobholders were invited to submit their self-assessments as part of the staff development dialogue for 2018. On 14 January 2019, the applicant submitted his self-assessment.
13      On 16 January 2019, the Head of the Disease Programme Food and Waterborne Diseases (‘the FWD programme’) submitted observations on the applicant’s performance in so far as he had worked partly under her supervision during the reference period. On 17 January 2019, a formal dialogue between the applicant and his line manager, as reporting officer, took place. On 28 January 2019, the reporting officer, while finding the applicant’s efficiency and ability satisfactory, drew up a report in which he reached the overall conclusion that the applicant’s performance had been unsatisfactory in 2018 in the light of his ‘conduct in the service’ (‘the contested report’).
14      On 1 February 2019, that appraisal was confirmed by the countersigning officer. On 8 February 2019, the applicant rejected the report drawn up by the countersigning officer, pursuant to Article 7 of the Implementing Rule.
15      The Director of ECDC, in her capacity as appeal assessor, held a meeting with the applicant on 4 March 2019 concerning that report. The appeal assessor also received comments from the applicant’s line manager, from the Head of Section and from the applicant’s head of unit. By decision of 8 March 2019, the appeal assessor confirmed the report.
16      On 6 June 2019, the applicant lodged a complaint against the contested report on the basis of Article 90(2) of the Staff Regulations. By decision of 7 October 2019, that complaint was rejected by ECDC (‘the decision rejecting the complaint’).
17      On 9 June 2020, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), and of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39), the applicant submitted a request for access to documents in the context of his complaint against the decision not to renew his contract. In his request, the applicant asked to be sent any document relating to the alleged issues of his conduct in the service. Following that request, ECDC sent him documents which were, inter alia, part of his appraisal reports.
Procedure and forms of order sought
18      By application lodged at the Court Registry on 17 January 2020, the applicant brought the present action.
19      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 17 September 2021.
20      The applicant claims that the Court should:
–        annul the contested report;
–        if necessary, annul the decision rejecting the complaint;
–        order ECDC to pay the costs.
21      ECDC contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
22      It should be noted as a preliminary point that, according to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 63 and the case-law cited). It must be held that the decision rejecting the complaint confirms the contested report and its statement of reasons. Moreover, the decision rejecting the complaint, without carrying out a review of the applicant’s situation based on new elements of law or of fact, addresses the objections raised in the complaint and thereby supplements the statement of reasons provided in the contested report. In those circumstances, it must be considered that the only act adversely affecting the applicant is the contested report and that the lawfulness of that report must be examined also taking into account the statement of reasons contained in the decision rejecting the complaint (see, to that effect, judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraph 53).
23      In support of his action, the applicant relies on four pleas in law, alleging, respectively, first, infringement of Article 43 of the Staff Regulations and Article 2(3) of the Implementing Rule and breach of the right to freedom of expression, second, the existence of manifest errors of assessment, third, breach of the duty to have regard for the welfare of officials and, fourth, breach of the right to be heard.
24      At the hearing, the applicant raised a complaint alleging infringement of Article 2(2) of the Implementing Rule, under which the appraisal report is to be concerned with all the jobholder’s professional activities. In that regard, he maintains that, having devoted half of his working time during the reference period to projects under the supervision of the Head of the FWD programme, ECDC infringed that article by failing to take sufficient account of the assessment drawn up by the latter.
25      When questioned by the Court at the hearing on the admissibility of that complaint, the applicant stated that it did not constitute a new formal plea, but was an additional argument in support of the plea alleging the existence of manifest errors of assessment.
26      ECDC replied that that complaint, raised for the first time at the hearing, should be declared inadmissible.
27      In that regard, it should be noted that that complaint, alleging infringement of Article 2(2) of the Implementing Rule, was not raised during the written part of the procedure. It is true that, in the fourth part of his second plea, alleging the existence of manifest errors of assessment, the applicant referred to the positive statements of the Head of the FWD programme in order to claim that ECDC had committed a manifest error in the assessment of his conduct in the service. However, the impact of positive statements from a person other than his line manager on the assessment of his conduct in the service and the question whether the contested report related to all the applicant’s professional activities are two separate issues, so that the new complaint, raised by the applicant at the hearing, cannot be regarded as amplifying a plea already raised. Consequently, it constitutes a new plea in law which must be rejected as inadmissible, pursuant to Article 84 of the Rules of Procedure of the General Court prohibiting the introduction of new pleas in law in the course of proceedings.
The first plea, alleging infringement of Article 43 of the Staff Regulations and Article 2(3) of the Implementing Rule and breach of the right to freedom of expression
28      The applicant claims that the conclusion of the contested report is justified solely in the light of the assessment of his conduct in the service and that that assessment is based entirely on his self-assessment, which not only infringes Article 43 of the Staff Regulations and Article 2(3) of the Implementing Rule, but also breaches his right to freedom of expression. This plea consists of two parts.
The first part, alleging breach of the right to freedom of expression
29      The applicant claims that ECDC found his performance to be ‘unsatisfactory’ on account of the comments he made in his self-assessment, which constitutes an infringement of his right to freedom of expression.
30      The applicant submits that his freedom of expression has also been infringed since ECDC referred, in the decision rejecting the complaint, to the comments he made in that complaint, whereas the lodging of a complaint is merely the legitimate exercise of a right which cannot adversely affect its author.
31      ECDC disputes the applicant’s arguments.
32      Freedom of expression, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, is one of the fundamental rights guaranteed by the legal order of the European Union.
33      In the context of the EU civil service, the Court of Justice has held that the obligation of allegiance to the European Union, as imposed on officials by the Staff Regulations and members of the temporary staff by the CEOS, cannot be construed in a manner contrary to freedom of expression (see judgment of 16 December 1999, ESC v E, C‑150/98 P, EU:C:1999:616, paragraph 13 and the case-law cited).
34      The Court of Justice has also held that observance of the right to freedom of expression is particularly important where an official is exercising his or her right under Article 43(3) of the Staff Regulations to make any comments he or she considers relevant on an appraisal report communicated to him or her (see, to that effect, judgment of 16 December 1999, ESC v E, C‑150/98 P, EU:C:1999:616, paragraph 14). The same applies to a member of the temporary staff such as the applicant, who enjoys, under the Implementing Rule, guarantees similar to those of an official with regard to appraisal.
35      Therefore, while it is legitimate to require officials to show discretion, as indeed they are expressly required to do by Articles 12 and 21 of the Staff Regulations, which is made applicable to members of the temporary staff by Article 11 of the CEOS, the fact remains that that duty to show discretion is not to be narrowly construed where the official exercises his or her right under Article 43(3) of the Staff Regulations. Accordingly, an official or member of the temporary staff cannot be considered to have failed to meet that requirement unless he or she uses seriously insulting language or language which seriously undermines the respect due to the reporting officer (judgment of 16 December 1999, ESC v E, C‑150/98 P, EU:C:1999:616, paragraph 15).
36      Furthermore, while it is true that an official or other staff member may express himself or herself freely in his or her self-assessment, subject to the reservations indicated above, notwithstanding his or her duty to show discretion, observance of the right to freedom of expression does not prevent the administration from taking into consideration the content of that self-assessment in its assessment of professional conduct and the performance of the person concerned. That is all the more true where, as in the present case, self-assessment constitutes the starting point of the appraisal procedure and may serve as a basis for the interviews conducted in that context.
37      In the present case, it must be noted, as was acknowledged by both parties at the hearing, that the contested report did in fact refer, on several occasions, to the comments made by the applicant in his self-assessment. In his assessment, the reporting officer thus took the view that it was apparent from those comments that the applicant was ‘[profoundly misaligned] with the Center’s priorities’ and had ‘a lack of respect and understanding of the work provided by his colleagues’. The reporting officer added that the applicant’s self-assessment contained ‘personal attacks offending the dignity [of his] line manager’. As regards the countersigning officer, he noted that that self-assessment reflected ‘a continued disagreement with the strategic priorities of [ECDC], inability to convey his criticism in a constructive manner, disvaluing of the contribution of his colleagues, and the use of sarcasm towards the ECDC decision makers and his line manager’. For her part, the appeal assessor stated that the applicant’s difficulties in accepting ECDC’s strategic decisions and the expression of that disagreement ‘[became] evident in [his] self-assessment, where [the applicant] harshly and inappropriately criticise[d] ECDC decisions and [his] management’.
38      Nevertheless, the fact that the assessments relating to the applicant’s conduct in the service set out in the contested report are in part based on the applicant’s self-assessment does not reveal any unlawful interference with freedom of expression. It must be stated that the sole purpose of the references to the comments made by the applicant in his self-assessment is to support the finding that the applicant did not accept strategic decisions and had a questionable attitude in his relations with his colleagues and superiors. Therefore, those references must be regarded as additional examples capable of corroborating the evidence on which the administration based the conclusion in the contested report that the applicant’s performance had been ‘unsatisfactory’.
39      In any event, even if the comments made by the applicant in his self-assessment had been decisive in supporting that conclusion, it would not result in any breach of freedom of expression. As stated in paragraph 36 above, respect for freedom of expression does not prevent reporting officers from taking into consideration the content of a self-assessment in their appraisal. In addition, certain comments made by the applicant in his self-assessment, which cast doubt on the probity of his line manager in the context of the processing of his request for assistance, mentioned in paragraph 11 above, could rightly be regarded, since they were not supported by any evidence, as being detrimental to the professional dignity of his line manager and could not, therefore, be protected under the prism of freedom of expression.
40      Similarly, ECDC cannot be criticised for having reproduced in the decision rejecting the complaint the comments made by the applicant in his complaint. Apart from the fact that, in view of its obligation to state reasons under Article 296 TFEU, it was necessary for ECDC to examine those comments, it is not apparent from the decision rejecting the complaint that ECDC relied on them in order to hold that the applicant’s conduct in the service was unsatisfactory. On the contrary, it is apparent from that decision that, as it was expected to do, ECDC analysed the information contained in the contested report in the light of the complaints put forward by the applicant. Therefore, it cannot be held that the decision rejecting the complaint infringes freedom of expression.
41      The first part, alleging breach of the right to freedom of expression, must therefore be rejected.
The second part, alleging infringement of Article 43 of the Staff Regulations and of Article 2(3) of the Implementing Rule
42      First of all, the applicant submits that the repeated reference to his self-assessment in the part of the contested report relating to his conduct in the service proves that that report is based entirely on his self-assessment, which cannot constitute a factual element capable of satisfying the obligation to state reasons laid down in Article 2(3) of the Implementing Rule.
43      Next, the applicant states that the references made in the contested report to the appraisal reports for previous years are not relevant, since they do not cover the same appraisal period as that in respect of which the contested report was drawn up.
44      Lastly, the applicant recalls that, on 9 June 2020, he asked ECDC to provide him with any evidence relating to the issues of his conduct. The applicant is of the view that the failure to produce documents following that request is proof, first, that those issues were not discussed prior to the contested appraisal and, second, that that assessment was based solely on the subjective assessments of the assessors, which cannot constitute factual elements within the meaning of Article 2(3) of the Implementing Rule, since they are not accompanied by any tangible evidence.
45      ECDC disputes the applicant’s arguments.
46      In the first place, it is settled case-law that the discretion of the authority authorised to conclude contracts, such as that of the appointing authority, must be exercised in compliance with all the relevant regulations, including any rules of conduct which the authority has adopted for the exercise of its discretion. Such internal rules thus form part of the legal framework from which the competent authority may not depart without stating the reasons which led it to do so (see, to that effect, judgments of 10 September 2003, McAuley v Council, T‑165/01, EU:T:2003:225, paragraph 44, and of 7 July 2009, Bernard v Europol, F‑99/07 and F‑45/08, EU:F:2009:84, paragraph 79).
47      In the present case, ECDC provided, in Article 2(3) of the Implementing Rule, that a finding that a jobholder’s performance was unsatisfactory must be supported by factual elements. Therefore, ECDC was required to comply with that obligation when exercising its discretion or, failing that, to justify the failure to comply with that rule. The obligation to state reasons for such a conclusion on the basis of factual elements implies that the assessment is based not only on value judgments but also on concrete and precise factors capable of justifying it.
48      It is apparent from the contested report that its conclusion that the applicant’s performance was ‘unsatisfactory’ is solely due to the assessment of his conduct in the service, since the comments relating to efficiency and ability are, by contrast, positive overall.
49      The contested report contains the assessments made in turn by several participants. First of all, the applicant’s line manager, in his capacity as reporting officer, stated that ‘[the applicant] indeed contributed to preparatory planning, but with signs of not agreeing to [the strategic decisions]’. Next, the countersigning officer noted that, ‘despite the disagreements regarding changes in the priorities of the service, [it remained the responsibility of the applicant] to demonstrate his involvement in the activities of his team, to respect [ECDC’s] strategic priorities and to refrain from insinuating that the performance and contribution of his colleagues [were] lower than his own’. Lastly, the Director of ECDC, in her capacity as appeal assessor, who met with the applicant and his superiors to ‘receive input and clarifications’, came to the conclusion that it was necessary ‘to uphold the assessment of [his] performance as unsatisfactory due to [his] behaviour relating to the non-acceptance of ECDC’s strategic decisions’. The appeal assessor considered that ‘it [became] clear that [the applicant] had difficulties [in accepting] certain decisions made by ECDC management and [continued] to express [his] dissatisfaction with those’ and stated that ‘this affect[ed] [his] collaboration with and engagement in [the] team’.
50      It is apparent from the contested report, and in particular from the comments referred to in paragraph 49 above, which are not based on the applicant’s self-assessment, that the ‘unsatisfactory’ assessment of the applicant’s conduct in the service results from his failure to accept strategic decisions and a questionable attitude in his relations with his colleagues. The reporting officer and the countersigning officer referred to an unequal level of engagement, a lack of proactivity in certain team projects and the manifestation of signs of disagreement with ECDC’s strategic decisions. The contested report mentions the applicant’s insinuations that his performance and contribution were superior to those of his colleagues. The appeal assessor also stated that that affected the applicant’s collaboration with his team.
51      It follows from the references thus made in the contested report that, contrary to what the applicant claims, the conclusion that his conduct in the service was unsatisfactory is not based exclusively on his self-assessment.
52      Admittedly, it is apparent from paragraph 37 above that the contested report does indeed refer, in addition, to certain comments made by the applicant in his self-assessment. However, as stated in paragraph 36 above, the administration was entitled to take those comments, which gave a real indication of the applicant’s difficulty in accepting the objectives assigned to him and corroborated the issues identified in his conduct, into consideration. Such assessments are based on factual elements within the meaning of Article 2(3) of the Implementing Rule and therefore do not infringe that provision. The reason for the ‘unsatisfactory’ conclusion of the contested report is the applicant’s poor personal relations and his failure to accept the strategic decisions of ECDC. All of those findings, which justified the ‘unsatisfactory’ assessment contained in the contested report, are based on the evidence set out in paragraphs 49 and 50 above and corroborated by the comments made by the applicant in his self-assessment, which, as noted in paragraph 38 above, does not constitute a breach of freedom of expression.
53      In the second place, as regards the reference to appraisal reports for previous years, it follows from Article 2(1) of the Implementing Rule that, when the appraisal report for a given year is drawn up, the jobholder’s efficiency, abilities and conduct in the service between 1 January and 31 December of that year are assessed. Thus, the appraisal must concern facts relating to the reference period in respect of which the report in question was drawn up.
54      In the present case, the contested report refers briefly to appraisal reports for previous years, which set out the applicant’s poor personal relations and set objectives in connection with those poor personal relations.
55      Nevertheless, such a reference to the applicant’s earlier poor personal relations cannot in itself demonstrate that the evaluation is based on evidence prior to the reference period (see, to that effect, judgment of 19 September 2007, Talvela v Commission, F‑43/06, EU:F:2007:162, paragraph 74).
56      It is apparent from the contested report, according to which the applicant’s poor personal relations were identified during the years preceding the reference period of the contested report, namely 2018, and continued during that period, that the references to those problems constitute, in the context of an on-going situation, a simple reminder of what the member of staff concerned is criticised for, which was already a problem before that period. Such references do not show that the applicant’s conduct was assessed in relation to another reference period (see, to that effect, judgment of 19 September 2007, Talvela v Commission, F‑43/06, EU:F:2007:162, paragraph 75).
57      Furthermore, even though the appraisal report must be drawn up on the basis of an assessment of the agent during the reference period, it does not appear inappropriate for the comments in that report to be able to refer to previous periods if that is useful for assessing any changes in the agent’s efficiency, ability and conduct in the service during the reference period compared with those previous periods. On that point, it should be borne in mind that, according to the case-law, particular care must be taken to provide a statement of reasons for an appraisal which includes assessments that are less favourable than those set out in a previous appraisal report (see, to that effect, judgment of 19 September 2007, Talvela v Commission, F‑43/06, EU:F:2007:162, paragraph 76). Since certain negative assessments of the applicant’s conduct appeared in the appraisal reports for the years preceding 2018, it was legitimate for the appraisal carried out for that year to refer to them in order to assess how the applicant’s conduct had evolved.
58      It follows from paragraphs 46 to 57 above that the contested report is indeed based on factual elements, in accordance with Article 2(3) of the Implementing Rule, which did indeed relate to the reference period of that report, namely 2018, with the result that it cannot be held, contrary to what is argued by the applicant, that that report relates to a period that is not relevant.
59      In the last place, as regards the applicant’s arguments relating to his request for access to documents, first, it is apparent from paragraphs 53 to 57 above that the issues of his conduct in the service had been discussed prior to the contested appraisal, since they had been mentioned in the appraisal reports for previous years. Second, as stated in paragraph 58 above, the contested report is indeed based on factual elements. Therefore, the applicant’s arguments cannot be accepted.
60      Accordingly, the second part, alleging infringement of Article 43 of the Staff Regulations and Article 2(3) of the Implementing Rule, cannot succeed, with the result that the first plea must be rejected in its entirety.
Second plea, alleging manifest errors of assessment
61      The applicant submits that a number of items of evidence show that the contested report is vitiated by manifest errors of assessment, which render implausible the assessments made by ECDC.
62      It must be borne in mind that it is not for the Court to substitute its own assessment for that of the persons responsible for appraising the work of the person on whom they are reporting. Reporting officers enjoy a wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the EU Courts of the content of appraisal reports is limited to ensuring that the procedure is conducted in a regular manner and the rules of law are properly applied, the facts are materially correct and there is no manifest error of assessment or misuse of powers (see, to that effect, judgments of 1 June 1983, Seton v Commission, 36/81, 37/81 and 218/81, EU:C:1983:152, paragraph 23, and of 19 September 2019, FV v Council, T‑153/17, not published, EU:T:2019:622, paragraphs 70 and 71).
63      Next, it should be noted that an error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise of decision-making powers to be subject. As a result, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of an appraisal report, the evidence, which it is for the applicant to adduce, must be sufficient to render implausible the assessments made by the administration. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as plausible (see, to that effect, judgment of 18 July 2016, SD v EUIPO, F‑48/15, EU:F:2016:149, paragraph 36 and the case-law cited).
64      It is in the light of those considerations that the arguments put forward by the applicant in support of the second plea, which comprises six parts, must be examined.
First part of the second plea
65      The applicant submits, as he does in the context of his first plea, that the contested report is based on the self-assessment he drafted, with the result that there is no factual element capable of justifying the conclusion that his conduct in the service had been unsatisfactory.
66      ECDC refers to the explanations provided in response to the first plea and submits that the applicant’s lack of proactivity and engagement gave rise to a negative assessment of his conduct in the service.
67      As held in paragraph 58 above, the applicant is wrong to claim that the contested report is not based on factual elements arising during the reference period and that it results exclusively from his self-assessment. Consequently, it also cannot be held that ECDC committed a manifest error of assessment on the ground that it relied solely on the comments contained in the self-assessment. The first part of this plea must therefore be rejected.
Second part of the second plea
68      The applicant considers that, by failing to take into account the overall context in which he found himself at the time his appraisal was drawn up, ECDC committed a manifest error in the assessment of his conduct in the service.
69      He claims, in that regard, that ECDC should have taken into consideration the difficult relationships he had with his superiors, which were mentioned by the Head of the FWD programme. He disputes that meetings were held with his line managers with the purpose of explaining to him ECDC’s strategic decisions, relying in that regard on the lack of evidence that such meetings took place. Lastly, the applicant submits that ECDC should have taken into consideration his request for assistance made on 13 May 2018, which led to a proposal to put in place coaching sessions.
70      ECDC disputes the applicant’s arguments.
71      It follows from settled case-law that the reporting officer has broad discretion in assessing the work of the persons under appraisal. The existence of that discretion presupposes that the reporting officers are not obliged to include in the appraisal report all the relevant factual and legal elements supporting their assessment, or to consider and reply to all the points disputed by the person under appraisal (see, to that effect, judgments of 10 September 2009, van Arum v Parliament, F‑139/07, EU:F:2009:105, paragraph 88, and of 12 July 2018, PA v Parliament, T‑608/16, not published, EU:T:2018:440, paragraph 32).
72      The purpose of the descriptive comments in an appraisal report is to justify the analytical assessments made in the report; they serve as the basis for drawing up the appraisal and enable the official or staff member concerned to understand the assessments made. Consequently, having regard to their dominant role in the drawing up of an appraisal report, the comments must be consistent with the assessments made, so that the assessment must be considered to be the quantified or analytical transcription of those comments (see, to that effect, judgment of 12 July 2018, PA v Parliament, T‑608/16, not published, EU:T:2018:440, paragraph 32 and the case-law cited).
73      In the present case, it must be noted that each of the participants in the appraisal procedure referred, in the contested report, to the relationship difficulties encountered by the applicant. That finding extends, moreover, to the Head of the FWD programme, who, despite writing favourably about the applicant, referred to the difficulties he encountered with his superiors. It follows from the foregoing that ECDC was well aware of the difficult relationships to which the applicant refers.
74      The applicant’s difficult relationships with his superiors were not merely one element of the context which had to be taken into account when drawing up the contested report, as required by Article 5 of the Implementing Rule, but constituted, specifically, one of the aspects of the applicant’s conduct complained of. ECDC rightly considered that the factual elements which justified the unsatisfactory assessment of his conduct constituted the material nature of those difficult relationships. Therefore, it must be held that, contrary to what is claimed by the applicant, those relationships were indeed taken into consideration in the contested report, in accordance with Article 5 of the Implementing Rule.
75      Moreover, the administration cannot be criticised, in the circumstances of the present case, for not having mentioned, in the contested report, in terms of taking the whole context into account, the request for assistance made by the applicant. That request had been rejected by a decision of 25 September 2018, which the applicant did not dispute and which had become final by the time the contested report was drawn up. Since the allegations made in that request were not confirmed, the contested report did not need to refer to it as a contextual element that it was necessary to take into consideration in the context of the applicant’s appraisal. Moreover, if the contested report had referred to it, such a reference could have been regarded as prejudicial to the applicant, since ECDC had considered that request to be unfounded.
76      For the sake of completeness, it should be noted that the applicant’s conduct in the service, as described in the contested report, cannot, in any event, be justified by the issue of difficult relationships relied on by the applicant. It is true that the existence of those difficult relationships was recognised in the decision rejecting the request for assistance made by the applicant, but those difficulties are not, in the present case, capable of justifying the applicant contesting ECDC’s strategic decisions.
77      Thus, the applicant does not put forward a sufficient argument to establish that ECDC committed a manifest error, within the meaning of the case-law cited in paragraph 63 above, in the assessment of his conduct in the service. The second part of the second plea must therefore be rejected.
Third part of the second plea
78      The applicant claims that ECDC committed a manifest error of assessment in considering that he had shown signs of not accepting ECDC’s strategic decisions and demonstrated limited willingness, whereas all the tasks and objectives connected with those strategic activities were performed satisfactorily according to the comments of his line manager and the only objective which was not achieved was unrelated to such decisions, but related to a more collaborative approach and better communication. In addition, the applicant is of the view that his comments relating to his workload, made in the context of his self-assessment, were wrongly interpreted as conveying a systematic challenge to the decisions of his superiors and devaluing of the work of his colleagues, and that that imbalance in the workload is proved by the testimony of two of his colleagues.
79      ECDC disputes the applicant’s arguments.
80      In that regard, it should be noted that the contested report lists the tasks and objectives set for the applicant during the appraisal year and states whether those tasks and objectives were ‘fully achieved’, ‘partly achieved’ or ‘not started’. It is apparent from that report that the tasks and objectives connected with ECDC’s strategic activities were all assessed as ‘fully achieved’, with the exception of the objective set for the applicant to demonstrate a collaborative approach with his team. Thus, contrary to what the applicant claims, the objective of a more collaborative approach and of better communication formed an integral part of the tasks and objectives relating to ECDC’s strategic decisions. It was in the context of those strategic activities that the applicant was expected to take a collaborative approach with his team. In addition, it is apparent from the comments of his line manager that the applicant’s work was considered to be ‘good’ and that his skills were deemed to be ‘relevant’. Therefore, ECDC validly took into consideration the work carried out by the applicant, including that carried out in connection with strategic activities.
81      Furthermore, although the assessment of the efficiency and ability of the person under appraisal is a strictly individual assessment of that person’s qualities, taken in isolation, the assessment of his conduct in the service, on the other hand, necessarily involves a more collective assessment, in the light of the team to which he belongs and his superiors. Therefore, positive comments on the efficiency and ability of the person assessed are not incompatible with unsatisfactory conduct on the part of that person in the service.
82      In the present case, it is apparent from the contested report that the objective of ‘demonstrat[ing] a collaborative approach throughout the roadmap implementation by ensuring effective communication and a receptive attitude towards comments provided by the … team’ was considered not to have been achieved. Moreover, among the positive comments in the ‘Efficiency’ section, the line manager nevertheless points to a lack of ‘equal engagement … and proactivity’ in team projects relating to strategic activities, which must be likened to the difficulties which are again mentioned in the assessments relating to conduct in the service.
83      On the basis of those findings, the truth of which the applicant has not been able to call into question, it must be held that ECDC was entitled, without committing a manifest error, to take the view that the applicant’s conduct in the service in connection with the performance of tasks and objectives relating to ECDC’s strategic activities was not satisfactory.
84      As regards the question as to whether ECDC misinterpreted the applicant’s statements concerning his workload, vitiating the criticisms made of the applicant relating to the devaluation of his colleagues’ work, the Court finds that there is nothing to indicate that those criticisms are motivated by those comments.
85      In addition, the Court finds that, contrary to what the applicant claims, it was not those remarks relating to the workload, but the comments referred to in paragraph 52 above, contained in the self-assessment, which were taken into account, together with other factors, as the basis for the conclusion of the contested report.
86      In any event, that analysis is not called into question by the witness statements relied on by the applicant, which were drafted by persons outside the service in which his conduct was considered unsatisfactory and are not capable of establishing the truth of the applicant’s remarks in that regard.
87      Thus, the arguments raised by the applicant are not such as to render implausible ECDC’s assessment of his conduct in the service, with the result that this part of the second plea must be rejected.
The fourth part of the second plea
88      The applicant is of the view that the absence of a document attesting to his difficult relationships with the members of his team and the positive statements made by the Head of the FWD programme and some of his colleagues contradict the assessors’ statements concerning the existence of such difficult relationships. He considers that that contradiction reveals a manifest error in the assessment of his conduct in the service.
89      ECDC disputes those arguments.
90      As regards the positive comments made with regard to the applicant by the Head of the FWD programme and by some of his colleagues, it should be noted that those comments come from persons outside the department in which the applicant’s conduct was considered unsatisfactory. The positive conduct of the applicant in one department does not render implausible the negative assessment of his conduct within another department, with the result that the applicant has not proven that the assessment of his conduct in the contested report is vitiated by a manifest error.
91      As regards the absence of a document attesting to his difficult relationships with the members of his team, it should be borne in mind that Article 2(3) of the Implementing Rule requires ECDC to state, by factual evidence, any finding that the jobholder’s performance was unsatisfactory. However, ECDC is under no obligation to produce material evidence in support of each of the factual elements relied on.
92      On the contrary, as noted in paragraph 63 above, the burden of proof lies with the applicant, who is required to adduce evidence capable of rendering the assessments made by the administration implausible. He has not done that here. The negative assessments concerning the conduct of the applicant appear plausible, in that they emanate from the reporting officer, the countersigning officer and the appeal assessor. In addition, they follow comments to that effect in the applicant’s previous appraisal reports. Moreover, the tone of some of the comments made by the applicant in his self-assessment corroborates his difficulty in accepting the priorities which had been assigned to him by his superiors. The applicant has not produced any evidence capable of casting doubt on the existence of difficult working relationships in the service, with the result that the fourth part of the second plea must be rejected.
The fifth part of the second plea
93      The applicant considers that the remarks made by the line manager in the contested report, inviting him to ‘valu[e] his own role without thinking that another job description is needed to make it more remarkable’, contradict the remarks made by the same line manager after the adoption of the contested report, at a meeting which took place on 13 November 2019, according to which he saw no issue with changing the job title. In the applicant’s view that contradiction establishes the existence of a manifest error of assessment.
94      ECDC disputes the applicant’s arguments.
95      In that regard, it should be noted that the comments of the line manager in the contested report were made in response to the ‘development aspirations’ set out by the applicant in that report. In the section of that report relating to the applicant’s development aspirations, the latter stated that he aspired to having more managerial responsibilities ‘where respect for each other as well as continuous improvement are paramount, and openness towards other groups is considered a virtue’. It was in response to that comment that the line manager first pointed out that the qualities that the applicant intended to develop when he became responsible for a team were those which he was lacking at the time of the assessment and which would make his career development faster. Subsequently, the line manager added that he invited the applicant to ‘valu[e] his own role without thinking that another job description is needed to make it more remarkable’.
96      However, the opinion expressed by the line manager at a meeting after the adoption of the contested report, according to which he saw no issue with changing the applicant’s job title, does not contradict the advice issued by the line manager in the contested report. By that advice, the line manager did not express a definitive opposition to a change of job title, but recommended that the applicant improve his conduct in the service in order to achieve the professional aspirations he described.
97      Accordingly, there is no contradiction in that regard and the fifth part of the second plea must be rejected.
Sixth part of the second plea
98      The applicant is of the view that several manifest errors were made in the assessment of the comments made in his self-assessment, which led ECDC wrongly to consider his conduct in the service to be unsatisfactory.
99      The applicant claims that his comments on ‘detractors’ of the Listeria whole genome sequencing project (ELiTE WGS) in his self-assessment were wrongly interpreted as referring to the chief scientists and the chief of microbiology, whereas the applicant did not state any name or function. In addition, he submits that the statement he made in his self-assessment, that during the procedure relating to his request for assistance he was not allowed to see the evidence produced by his line manager, with the result that that evidence could have been incorrect or misleading, was not correctly interpreted. By that statement, he merely set out a possibility and made no insinuation against his line manager.
100    ECDC disputes the applicant’s arguments.
101    In the present case, without it being necessary to determine precisely the persons referred to by the words ‘detractors of the ELiTE WGS’, it is clear, in the context of the dispute, that those words refer, at the very least, to the persons competent to take strategic decisions relating to that project. Although, as the appeal assessor rightly pointed out, the applicant had the opportunity to voice his opinion, the freedom of expression recognised in the appraisal exercise cannot justify the use of such words.
102    Furthermore, as regards the applicant’s comments relating to the possibility that his line manager might have submitted incorrect or misleading evidence, ECDC was right to interpret them as an insinuation calling into question that line manager, since the applicant has not adduced any evidence to substantiate such an allegation.
103    Consequently, ECDC did not commit a manifest error of assessment in taking the view that the applicant’s remarks constituted indirect and insinuating allegations such as to discredit the professional integrity of his line manager and that they cannot be tolerated.
104    The sixth part is therefore also unfounded, with the result that the second plea must be rejected in its entirety.
The third plea, alleging breach of the duty to have regard for the welfare of officials
105    The applicant raises three complaints in support of this plea.
106    First, the applicant submits that ECDC should have taken into account his sick leave and the rejection of his request for assistance, when the Director of ECDC stated that the working relationship between the applicant and his line manager was ‘somehow difficult’. According to the applicant, that fragile situation in which he found himself when he drafted his self-assessment was not taken into consideration in the appraisal of his performance, which constitutes an infringement of ECDC’s duty to have regard for the welfare of officials.
107    ECDC disputes the applicant’s arguments.
108    According to the settled case-law, the administration's duty to have regard for the welfare of its staff reflects the balance of reciprocal rights and obligations that the Staff Regulations have created in relations between the public authority and public service employees. That duty implies in particular that when the authority takes a decision concerning the situation of an official or other staff member, it must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official or member of the temporary staff concerned (see judgment of 19 September 2019, FV v Council, T‑153/17, not published, EU:T:2019:622, paragraph 90 and the case-law cited).
109    In the present case, it should be noted that, as stated in paragraph 80 above, the contested report lists the tasks and objectives set for the applicant during the reference period and specifies whether those tasks and objectives were ‘fully achieved’, ‘partly achieved’ or ‘not started’. It is apparent from the contested report that one task relating to the FWD programme was deemed to be ‘partly achieved’ and another ‘not started’. In the comments, it is stated that the task partially achieved was explained by the fact that ‘sick leave reduced [the] number of days possible to put on [the] project’. As regards the ‘not started’ task, it is stated that it was not started ‘due to sick leave’ and that the ‘project [was] discontinued in 2019 due to new strategic priorities’. In that regard, it must be held that the comments thus made with regard to the tasks which were not fully achieved had no impact on the assessment of the applicant’s efficiency and ability, as evidenced by the positive comments made under those headings.
110    It follows from the foregoing that ECDC did indeed take into consideration the applicant’s sick leave and, in fact, the health problems he encountered during the reference year. In that regard, while it is possible that health problems may harm a person’s performance, or even his conduct in the service, the applicant must still establish a sufficient link enabling the Court to find that those difficulties are capable of being justified by those health problems. Yet it must be noted that the applicant has not put forward any evidence relating to his health capable of justifying his problems of conduct in the service.
111    Furthermore, it should be noted that the applicant’s difficult relationships had already been mentioned in the appraisal report for the previous year and that an improvement in that regard was one of the objectives for the reference period. In addition, it was noted by the reporting officer that the applicant ‘[had] contributed to preparatory planning, but with signs of not agreeing [with those strategic decisions]’. For his part, the countersigning officer pointed out that, ‘in the feedback of [the applicant]’s line manager, [he observes] an appreciation of [the applicant]’s work in terms of delivering what [is] expected in the work plan, but also the need to be more engaged in the core activities of his team’. As regards the appeal assessor, she stated that ‘while [the applicant had] the possibility to voice [his] opinion and discuss the matter constructively, if [he is] of a different opinion, [she] expect[s] every staff member to accept [strategic decisions taken by the management of ECDC] … and consequently the tasks allocated to [him] in line with these priorities without continuously questioning and criticising them’. Thus, it is apparent from those comments that the interests of the applicant were weighed against those of the service. The various participants highlighted the positive aspects of the work carried out by the applicant, which were, however, counterbalanced by his problems of conduct in the service, in particular regarding the acceptance of strategic decisions. It must be borne in mind that it was on the basis, in particular, of the lack of acceptance of strategic decisions and the lack of willingness in the performance of the tasks and objectives linked to those strategic decisions that the applicant’s conduct in the service was considered unsatisfactory.
112    Therefore, it is apparent from the contested report that ECDC took into consideration all the relevant factors in the applicant’s appraisal, taking into account not only the interests of the service but also the interests of the applicant.
113    The first complaint must therefore be rejected.
114    Second, the applicant submits that greater diligence in setting up the coaching sessions proposed by the Director following the rejection of his request for assistance would have influenced the comments he made in his self-assessment, which in his view is the basis of his appraisal report. When questioned in that regard at the hearing, the applicant added that those coaching sessions could have been a source of change by encouraging the resumption of the dialogue with his superiors.
115    ECDC disputes the applicant’s arguments.
116    It should be noted that, even if the coaching sessions were held earlier, from the end of 2018, and not from May 2019, they would have occurred at the end of the reference period and would have had no effect on the factual elements which justified the conclusion that the applicant’s conduct in the service for that period was unsatisfactory. The applicant is therefore wrong to consider that the delay in setting up those coaching sessions had an impact on his appraisal.
117    Third, the applicant submits in his reply that, in view of the situation in which he found himself at the time of his appraisal, ECDC breached its duty to have regard for the welfare of staff by failing to make use of Article 3(3) of the Implementing Rule, under which, in exceptional cases, justified by the desire to act in the interests of the jobholder or in the event of a change in the organisation chart of a service, the Director of ECDC may derogate from the rules governing the designation of various participants in the appraisal procedure.
118    ECDC disputes the applicant’s arguments.
119    At the hearing, the Court asked the parties to submit their observations on the admissibility of that complaint, submitted by the applicant for the first time at the stage of the reply.
120    The applicant is of the view that that complaint was submitted in response to the argument put forward by ECDC, in its defence, that, even where there has been harassment, the reporting officer is not necessarily prevented from performing his duties in the reporting process. The applicant states that, by referring to Article 3(3) of the Implementing Rule, he wished to make clear that there was a possibility, specific to ECDC, of taking action and choosing another reporting officer.
121    In that regard, the Court observes that this is a new complaint, which appears only in the reply, which is not based on matters of law or of fact which came to light in the course of the procedure, with the result that, under Article 84 of the Rules of Procedure, that complaint must be declared inadmissible.
122    In any event, even if the complaint alleging failure to apply Article 3(3) of the Implementing Rule were admissible, ECDC is right to point out that that provision applies only in exceptional cases, in accordance with the conditions laid down therein.
123    In the present case, according to the applicant, such a procedure was justified by the difficult relationship which he had with his line manager.
124    Nevertheless, it is settled case-law that, even though the possibility cannot be ruled out that differences between an official or an agent and his immediate superior may cause a degree of irritation on the part of that immediate superior, that possibility does not, as such, imply that the immediate superior is no longer in a position to assess objectively the merits of the person concerned. It has moreover been held that, even the fact that a staff member has lodged a complaint of harassment against the person who is to assess his or her professional performance cannot of itself, without more, call into question the impartiality of the person against whom the complaint has been lodged (see judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 94 and the case-law cited).
125    It should be noted that, in the present case, it is true that the applicant had submitted a request for assistance under Article 24 of the Staff Regulations because of the relationship problems encountered with his line manager. Moreover, although that request for assistance was rejected, the rejection decision acknowledged that the relationship between the applicant and his line manager was ‘somehow difficult’. However, it must be noted that the applicant merely relies on the request for assistance, without producing any additional evidence capable, in accordance with the case-law referred to in paragraph 124 above, of supporting his allegations regarding the lack of impartiality of his line manager. Furthermore, the applicant has not adduced any evidence to establish an ‘exceptional case’ justifying recourse to Article 3(3) of the Implementing Rule. Consequently, the complaint alleging infringement of that article must, in any event, be rejected.
126    It follows from the foregoing that ECDC did not breach its duty to have regard for the welfare of its staff. Consequently, the third ground of appeal must be rejected.
The fourth plea, alleging breach of the right to be heard
127    The applicant maintains that he was not in a position to express himself on the elements used against him in the contested report before the countersigning officer took his decision, which constitutes a breach of his right to be heard. He asserts that, if he had had the opportunity to hold a dialogue with the countersigning officer, he could have further explained the situation in which he found himself, which could have led the countersigning officer to adopt a different position.
128    Furthermore, the applicant states that he was not informed of the arguments put forward to the appeal assessor by the reporting officer and the countersigning officer, with the result that he was not able to take a position on any new arguments.
129    ECDC contends that the applicant’s right to be heard was respected since he met with the reporting officer on 17 January 2019 and then with the appeal assessor on 4 March 2019. ECDC adds that, in addition to those two meetings, the applicant expressed his views in writing on two occasions, in his self-assessment of 14 January 2019, and then when challenging the unsatisfactory appraisal on 8 February 2019.
130    According to settled case-law, the right to be heard, enshrined in Article 41(2) of the Charter of Fundamental Rights, guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (see judgments of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 53 and the case-law cited, and of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 24 and the case-law cited).
131    In the context of the appraisal of EU staff, that principle must enable the person concerned, during the appraisal procedure, to defend himself or herself against alleged facts which may be taken into account in the appraisal report (see, to that effect, judgment of 8 May 2019, PT v EIB, T‑571/16, not published, EU:T:2019:301, paragraph 165).
132    That principle implies that, during the appraisal procedure, the administration must inform the person concerned of all the matters which might be relied on against him or her before the appraisal report is definitively drawn up (see, to that effect, judgment of 8 May 2019, PT v EIB, T‑571/16, not published, EU:T:2019:301, paragraph 166).
133    The mere establishment that the staff member concerned knew of the factual matters on which the appraisal report is based cannot be regarded as sufficient to establish that he or she had the opportunity effectively to defend his or her interests prior to the adoption of that report. It is also necessary for the administration to give the person concerned the opportunity to understand that those facts are such as to justify that report (see judgment of 8 May 2019, PT v EIB, T‑571/16, not published, EU:T:2019:301, paragraph 167 and the case-law cited).
134    In the first place, it should be noted that, under Article 7(4) of the Implementing Rule, the appraisal report becomes final after the appeal assessor has taken his or her decision.
135    In the second place, it must be noted that, in accordance with Articles 6 and 7 of the Implementing Rule, the applicant had the opportunity to comment on two occasions, during the meeting he had with the reporting officer and then during the meeting he had with the appeal assessor, as stated in paragraph 129 above. In addition, the applicant had the opportunity to make known his views on his personal situation in writing by means of his self-assessment, and then to share his observations by means of the reasoned opposition to his appraisal.
136    In the third place, as regards the communication to the applicant of the evidence relied on against him, it is apparent from the appraisal procedure as provided for by the Implementing Rule that the applicant was put in a position to know that evidence during the interviews in which he participated, but also through the opinions drafted by the various participants in the appraisal procedure.
137    In the fourth and last place, the applicant knew that the improvement of his conduct in the service was one of the objectives set in the appraisal of the previous year, since it was stated in the appraisal report relating to that report that ‘this change of behaviour should be visible in 2018, as explained in the objectives set out in [the applicant’s] appraisal report, in order to maintain a satisfactory performance’. He was therefore all the more able to understand what matters had given rise to the negative assessments made in that regard by his reporting officer and to submit his comments before the contested report was adopted by the appeal assessor. Although it is regrettable that the applicant could not have had a meeting with the countersigning officer, during which he could have made his comments and reacted before the latter expressed his position, it is apparent from the various stages of the appraisal procedure that that procedure, taken as a whole, respected the applicant’s right to be heard before a definitive conclusion was reached in the contested report on his manner of serving.
138    It follows from the foregoing that the fourth plea must be rejected, as must the action.
Costs
139    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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by ECDC.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Ivo Van Walle to bear his own costs and to pay those incurred by the European Centre for Disease Prevention and Control (ECDC).
Gervasoni
Nihoul
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 9 February 2022.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.