62007FJ0114_EN
Parties
Grounds
Operative part
Parties
In Case F‑114/07,
ACTION under Article 40(3) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the establishment of a European Police Office (Europol Convention) and Article 93(1) of the Europol Staff Regulations,
Rainer Wenning,
former member of the staff of the European Police Office, residing in The Hague (Netherlands), represented initially by G. Vandersanden and C. Ronzi, avocats, and subsequently by L. Levi, avocat,
applicant,
v
European Police Office (Europol),
represented initially by B. Exterkate and D. El Khoury, acting as Agents, assisted by B. Wägenbaur and R. Van der Hout, avocats, and subsequently by D. El Khoury and D. Neumann, acting as Agents, assisted by B. Wägenbaur and R. Van der Hout, avocats,
defendant,
THE TRIBUNAL (Second Chamber),
composed of H. Kanninen (Rapporteur), President, I. Boruta and S. Van Raepenbusch, Judges,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 20 January 2009,
gives the following
Judgment
Grounds
1. By application received at the Registry of the Tribunal on 19 October 2007 by fax (the original being lodged on 23 October), Mr Wenning seeks, essentially, the annulment of the decision of the European Police Office (Europol) of 21 December 2006 not to renew his contract, the annulment of the assessment report drawn up for the period from January to September 2006 and an order that Europol pay damages in reparation of the material and non-material loss allegedly suffered.
Legal context
2. Article 6 of the Europol Staff Regulations, as amended by the Council Decision of 4 December 2006 (OJ 2006 C 311, p. 1, ‘the Staff Regulations’) provides:
‘All Europol staff, whether recruited to a post which can be filled only by staff engaged from the competent authorities referred to in Article 2(4) of the [Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the establishment of a European Police Office (Europol Convention)] or whether recruited to a post which is not subject to that restriction, shall initially be engaged for a fixed period of between one and five years.
First contracts may be renewed. The total length of the fixed-term contracts, including any periods of renewal, shall not be more than nine years.
Only staff recruited to a post not restricted to staff engaged from the competent authorities referred to in Article 2(4) of the Europol Convention may be engaged for an indefinite period after serving two contracts for a fixed period consistently to a highly satisfactory standard for a minimum period of service of six years.
The Management Board of Europol shall give its consent on a yearly basis in so far as the Director of Europol intends to grant contracts of indefinite duration. The Management Board may fix ceilings for the total number of such contracts to be granted.’
3. On 8 December 2006, the Director of Europol adopted a decision on the General Policy implementing Article 6 of the Europol Staff Regulations (‘the decision of the Director’).
4. Article 6(1) of the decision of the Director reads:
‘Where a First Contract comes up for renewal, Europol shall consider if it is in a position to offer a Second Contract, based on the following considerations:
– Does the respective staff member possess knowledge or skills that are of particular importance to Europol, or is it likely to find a person with knowledge and skills that would outweigh the loss of continuity?
– Based on the priority of the area of work the respective member has worked in, is it likely for that post to be assigned to that area of work for the term of a Second Contract?
– Are any outside developments, e.g. of a technical or methodological nature, likely to require such extensive training of the respective staff member that the granting of a Second Contract would run counter to the interests of Europol?
– What effect would it have on the balance of skills and experience of the Unit in question and Europol as a whole if a Second Contract was not granted to the respective staff member?
– Are particular projects planned or foreseeable which will require that the specific skills and knowledge of the respective staff member are maintained?
– How has the personal suitability of the respective staff member been seen in the past, in particular with a view to the criteria laid down in Article 24(1) of the Staff Regulations?
– What would be the impact of the decision upon Europol’s obligation to ensure both an adequate representation of all Member States and of all official languages of the European Union?
– Based on the yearly assessment of the respective staff member, has he or she performed at least satisfactorily in the past?
– Do exceptional personal or social consequences for the respective staff member of a negative decision outweigh all arguments that would normally lead to a negative decision?’
5. Article 9 of the decision of the Director provides that ‘[w]here the maximum period of nine years has not been reached under two or more Employment Contracts of a staff member, he or she may be considered for a further extension of the contract that makes, in addition to the length of all previous contracts of that staff member, the maximum period of nine years’.
6. Under the first paragraph of Article 28 of the Staff Regulations, ‘[t]he ability, efficiency and conduct in the service of each official, with the exception of the Director and Deputy Directors, shall be the subject of a periodical report made at least once a year’.
7. The parties refer to the Guidelines for managers and officials concerning the Staff Development and Review Process adopted by Europol on 13 October 2004 (‘the Guidelines’).
8. Under point 5.2 of the Guidelines all those responsible for the assessment of staff are to ‘adopt a no-surprises approach’.
9. The first paragraph of point 7.3 of the Guidelines provides:
‘At six months the official should be invited to attend an interim review meeting. The purpose of this meeting is to determine whether the objectives remain or have been changed by external factors. …’
10. Under the first paragraph of point 8.1 of the Guidelines:
‘A key principle of the Staff Development and Review Process is that the manager and official should reach agreement over performance in the past year and set both objectives and the [personal development plan] for the coming year together. However it is recognised that on occasions there may be some disagreement over some or all of the elements within the review. In the first instance these differences should be discussed between the official and the manager concerned with a view to resolving the issues together. Where initial discussions fail to resolve the issue this should be referred to the countersigning manager for discussion and resolution. This should be a joint process with all parties involved reaching a consensus’.
11. Point 8.2 of the Guidelines provides inter alia that ‘[w]here for any reason the review process is likely to be delayed the manager shall notify the Europol official accordingly’.
Factual background to the dispute
12. The applicant worked for Europol as an administrator in the ‘Corporate Communications Unit’ of the ‘Corporate Governance Department’ under an initial four-year contract running from 1 September 1999 to 31 August 2003, renewed for a subsequent four-year period from 1 September 2003 to 31 August 2007.
13. The applicant’s assessment report for the period from 1 September 1999 to 4 September 2000 contained the assessment ‘satisfactory or above’. For the periods from 5 September 2000 to 31 August 2001, 31 August 2001 to 31 August 2002 and 31 August 2002 to 31 August 2003, the applicant received the assessment ‘above satisfactory’.
14. In June 2004, the then head of the Corporate Communications Unit left Europol. Mr P. was hired from 16 August 2004 as First Officer in the Corporate Communications Unit with responsibility for leading it. As Head of the Corporate Communications Unit, Mr P. became the applicant’s hierarchical superior and his assessor.
15. There was no assessment of the applicant’s performance for the period from 31 August 2003 to 16 September 2004 and, consequently, there is no assessment report for that period in the applicant’s personal file.
16. On 24 January 2005, Mr P. assessed the applicant for the period from 16 September 2004 to 24 January 2005. The marks awarded to the applicant varied from 6 out of 10 to 8 out of 10, corresponding to the assessments ‘satisfactory’ or ‘above satisfactory’. Although the applicant disagreed with the mark of 6 out of 10 awarded to him under two headings of the assessment report drawn up for the period from 16 September 2004 to 24 January 2005, he decided not to challenge the assessment report formally.
17. The assessment report for the period from 24 January 2005 to 31 December 2005 (‘the 2005 assessment report’), contained, under the heading ‘Annual Summary of Performance’, an overall mark of 2 out of 5, and the assessment ‘partially meets performance expectations’. Although he disagreed with the mark and the assessment obtained, the applicant did not make a complaint or lodge an appeal against the 2005 assessment report.
18. The assessment report for the period from January 2006 to September 2006 (‘the 2006 assessment report’) contained, under the heading ‘Annual Summary of Performance’, an overall mark 2 out of 5 and the assessment ‘partially meets performance expectations’.
19. On 30 October 2006, Mr P. completed the applicant’s contract renewal consideration form, proposing two options, namely, either to renew or extend the applicant’s contract for one year on condition that Article 6 of the Europol Staff Regulations in the version in force until 5 December 2006 was amended, or not to renew the contract.
20. On 8 November 2006, Mr Q., Deputy Director of Europol, recommended to the Director of Europol that the applicant be awarded a one-year contract conditional on the amendment of Article 6 of the Europol Staff Regulations in the version in force until 5 December 2006.
21. On 17 November 2006, Mr P. signed the 2006 assessment report.
22. The decision to amend Article 6 of the Europol Staff Regulations was adopted by the Council on 4 December 2006.
23. Following the meeting which took place on 11 December 2006 between the applicant and the Deputy Director of Europol, in his capacity as countersigning manager and that which took place on 14 December 2006 between the applicant and both Mr Q. and Mr P., Mr Q. confirmed the overall mark of 2 out of 5 and signed the 2006 assessment report.
24. On 14 December 2006, the applicant signed the 2006 assessment report.
25. After a discussion on 15 December 2006 with Mr Q. and Mr P., on 21 December the Director of Europol, Mr R., signed the applicant’s contract renewal consideration form indicating that the contract would not be renewed.
26. By letter of 21 December 2006, Mr R. informed the applicant of his decision not to renew the applicant’s contract (‘the decision not to renew the contract’).
27. In the same letter, Mr R. extended the applicant’s contract for one month until 30 September 2007.
28. By two separate letters, both dated 13 March 2007, the applicant submitted, first, a request under Article 92(1) of the Europol Staff Regulations concerning the 2006 assessment report and, second, a complaint under Article 92(2) of those Staff Regulations against both the decision not to renew the contract and the 2006 assessment report.
29. By decision of 9 July 2007, Mr R. rejected the request and the complaint submitted by the applicant.
Procedure and forms of order sought
30. By letter received by fax at the Registry of the Tribunal on 14 July 2008 (the original being lodged on 16 July 2008), after the conclusion of the written procedure, the applicant sought the leave of the Tribunal to lodge six documents by way of offers of further evidence under Article 42 of the Rules of Procedure, namely, an article published in the magazine Der Spiegel
on 28 April 2008, an article published in the bulletin of the German Police trade union, the Gewerkschaft der Polizei, a letter from Mr T., the head of professional training for the largest trade union of the German criminal police, to the applicant on the subject of seminars conducted by the applicant, the report by Europol, dated 14 March 2008, entitled ‘Preliminary viewpoints of the Europol Directorate on the Europol Self-Assessment 2008’, the proposal, dated 17 March 2008, headed ‘Proposal to the Management Board 18 & 19 March – Indefinite Contracts’ and a letter from Mr R. addressed to the staff of Europol and liaison officers of 14 March 2008.
31. On 9 September 2008, the Tribunal informed the parties of its decision to register the documents lodged by the applicant by letter of 14 July 2008, without prejudice to their admissibility and invited Europol to submit its observations on the production of those documents.
32. By letter of 7 October 2008, received at the registry of the Tribunal the same day by fax (the original being lodged on 10 October 2008), Europol contended that some of the documents produced by the applicant were inadmissible and submitted that, in any event, the documents had no relevance.
33. By way of measures of organisation of the procedure, the Tribunal asked the applicant, by letter of 19 December 2008, pursuant to Article 55(2)(d) of the Rules of Procedure, to produce the following documents:
– a copy of the signed contract for the period from 1 September 1999 to 31 August 2003 and of its renewal concluded for the period from 1 September 2003 to 31 August 2007;
– a copy of the decision of 14 February 2005 on the general policy implementing Article 6 of the Europol Staff Regulations in the version in force until 5 December 2006 and of the decision of 8 December 2006 on the general policy implementing Article 6 of the Staff Regulations, cited by the applicant in his application;
– a copy of the medical certificates cited by the applicant in his application;
– a legible copy of the last page of the 2005 assessment report annexed to the application;
– a copy of the document referred to by the applicant as the ‘request’, cited in the application.
34. By letter received at the registry of the Tribunal on 8 January 2009 by fax (the original being lodged on 12 January), the applicant complied with the Tribunal’s request.
35. At the hearing, the applicant asked the Tribunal to place on the case-file two witness statements written by former colleagues. The representative of Europol expressed doubts, at the hearing, as to the admissibility of those documents. The President declared that the documents would be placed on the file but that this would be without prejudice to their admissibility. A copy of the documents was sent to Europol.
36. Also at the hearing the applicant sought leave to place his salary statement for October 2008 on the case-file. Europol raised no objection to the placing of that document on the file.
37. Following the hearing, on 22 January 2009, the applicant sent a letter to the Tribunal by fax (the original being lodged on 23 January) to which was annexed a letter from a German insurance company dated 8 January 2009. The applicant requested that the oral procedure be reopened so that that document could be placed on the case-file. Pursuant to Article 42 of the Rules of Procedure, the Tribunal rejected that request since no justification had been put forward for the late production of the document.
38. The applicant claims that the Tribunal should:
– annul the decision of the Director of Europol of 21 December 2006 not to renew his contract, and reinstate him at Europol as from 1 October 2007;
– annul, as a consequence, the 2006 assessment report on which the decision not to renew his contract was based;
– grant him damages to compensate for the material and non-material loss suffered;
– order Europol to pay the costs.
39. Europol contends that the Tribunal should:
– declare the action unfounded;
– order each party to bear its own costs.
Law
1. The applications for annulment
40. In support of his claims for annulment of the decision not to renew the contract and the 2006 assessment report, the applicant relies on:
– pleas of infringement of Article 28 of the Staff Regulations, infringement of the Guidelines, breach of the duty to state reasons, errors of fact and manifest errors of assessment;
– pleas of misuse of powers, abuse of powers and breach of the principle of the protection of legitimate expectations;
– pleas of breach of the duty to have regard to the interests of officials, the principle of sound administration, the interests of the service and the principle of non-discrimination.
41. By his argument as set out in the application, the applicant claims that the decision not to renew the contract, first, does not state sufficient reasons and, second, states erroneous reasons in that it relies on the assessment of his work set out in the 2006 assessment report.
42. It appears from the decision not to renew the contract that it is based, inter alia, on the assessment of the applicant’s performance over the eight previous years, which includes the assessment of his work made in the 2006 assessment report, as Europol expressly states in its defence.
43. Consequently, it is appropriate to consider first the pleas in law directly concerned with the 2006 assessment report, that is to say those of breach of Article 28 of the Staff Regulations, breach of the Guidelines, errors of fact and manifest errors of assessment, before ascertaining, in relation to the plea of breach of the duty to state reasons, whether the reasons stated for the decision not to renew the contract were sufficient and exempt of error. Second, the pleas in law alleging misuse of powers, abuse of powers and breach of the principle of the protection of legitimate expectations and the pleas in law alleging breach of the duty to have regard to the interests of officials, of the principle of sound administration, of the interests of the service and of the principle of non-discrimination will be examined.
The pleas in law of breach of Article 28 of the Staff Regulations, breach of the Guidelines, errors of fact and manifest errors of assessment directed against the 2006 assessment report
Arguments of the parties
44. The applicant claims, first, that the objectives set for 2006 were not measurable. In any event, the applicant met those objectives.
45. As regards the objectives set for 2007 in the 2006 assessment report, not only were they not measurable but the applicant was expected to meet them by March 2007.
46. The applicant also points out that it cannot be inferred from the fact that he managed to meet the objectives set for 2006 that those objectives were ‘specific, attainable and realistic’.
47. Second, the applicant points out that no assessment was made of him for 2004 and that the assessments for 2005 and 2006 were made late. He was never notified of those delays.
48. Third, the applicant claims that the result of his interview with Mr Q. in his capacity as countersigning manager should have been mentioned in the 2006 assessment report in line with the practice of the former Deputy Director of Europol in his 2005 assessment report. In the 2006 assessment report, Mr Q. confined himself to confirming the assessment made by Mr P. in his capacity as assessor. He did not examine the documents produced by the applicant and did not listen to his arguments.
49. In the course of the assessment for 2006, the countersigning manager did not attempt to resolve the problems existing between the applicant and his assessor. The countersigning manager confined himself, at the meeting of 11 December 2006, to indicating to the applicant that he did not know him, that he would not alter overall the mark given by the assessor and that the applicant’s performance was not good, thus demonstrating his lack of impartiality. At the meeting of 14 December 2006, the countersigning manager merely repeated what he had said at the meeting of 11 December 2006.
50. The applicant states that the countersigning manager did not attend a one-day training course for assessors until the end of December 2006. Moreover, the applicant expresses doubt as to whether the countersigning manager understood the arguments raised at the meeting of 11 December 2006, given his allegedly limited knowledge of the English language.
51. Fourth, the applicant points out that there was no interim assessment meeting, contrary to what is provided for by the Guidelines, nor any formal warning from his line manager informing him that his performance had not improved since the last assessment. As a consequence, the applicant only became aware of certain problems at the time of his assessment, which constituted a contravention of the ‘no-surprises’ approach laid down in the Guidelines.
52. Fifth, several errors of fact and assessment were made in the assessment of the applicant for 2006.
53. First, the applicant takes the view that certain matters should not have been mentioned in the 2006 assessment report, notably the comments relating to ‘smoking breaks’.
54. Next, the applicant maintains that most of the negative remarks and comments appearing in the 2006 assessment report are drafted in vague terms. The applicant observes in that regard that his countersigning manager told him that this was done on purpose in order to protect him.
55. Moreover, in the opinion of the applicant, the general observations made by the countersigning manager in the 2006 assessment report were positive. There was thus a clear inconsistency between the overall mark of 2 out of 5 obtained and the content of that report.
56. In addition, it is apparent from a comparison of the 2005 assessment report with the 2006 assessment report that the applicant’s attitude improved in 2006. No specific reasons were stated for that variation in the assessment.
57. The applicant also points out that, in the light of the promise made to him in 2005 that his mark would be increased if his performance continued to improve, the overall mark of 2 out of 5 is incomprehensible. This represents a further inconsistency in the 2006 assessment report.
58. The applicant also claims that there is a lack of proportion between the positive remarks and the negative remarks in the 2006 assessment report. Thus, while the report records ‘good feedback’ from exhibition organisers and from persons who have had their visits organised by the applicant, mention is made only of a ‘good result’ rather than a ‘very good result’. Similarly, it is not made clear that the persons in question were Ministers, Secretaries of State or other important figures. In support of this argument, the applicant also cites the fact that 35 evaluation forms were filled in regarding the organisation of a seminar on ‘Cooperation in the field of Public Relations’ in which the participants considered that the organisation of the workshops by the applicant was good or very good. The applicant also pointed out that he had always had good or very good feedback, particularly from the international media and the public.
59. The applicant also disputes the assessor’s remark in the 2006 assessment report that ‘the unit has got much more tasks as well as more staff. It sometimes seems as if [the applicant] doesn’t appreciate all new developments and challenges, maybe because some of these are different compared to those [he] used to be familiar with’. The applicant states that even if there had been an increase in the responsibilities and tasks of the unit, his own tasks had not changed. The applicant’s differences with his superiors concerned the lack of a strategy for the work to be carried out.
60. In addition, the countersigning manager concluded the 2006 assessment report with the remark that ‘input was a little superficial, but this might be due to the short notice given and time pressure’. The applicant alleges that this remark relates to his contribution to the ‘the external communication strategy’. According to the applicant, that contribution was not superficial. Moreover, in his contribution the applicant quoted from his final examination paper in an ‘exam of a long distance study’, which had received the highest score in the class. In addition, the pressure was real and not merely potential as the applicant had only six days to draft his contribution.
61. The applicant also points out that a certain confusion was apparent from the 2006 assessment report. For instance, the applicant drafted a contribution to ‘Europol’s media strategy’ following all the instructions given. However, the applicant states that Mr P., when offering to help him prioritise, accused him of hesitating. According to the applicant, even though certain tasks did not fall within the priorities set, the applicant none the less coped with them successfully.
62. Again on the subject of carrying out priority tasks, Mr P. alleged in the 2006 assessment report that the applicant frequently omitted to forward a monthly list of tasks and duties carried out. The applicant states that he did not fill in the forms detailing tasks carried out because Mr P. did not read them and priorities were not set on the basis of the content of the forms collected. The applicant illustrates this argument by describing how he sent Mr P. a note concerning the proposal to establish a communication outpost in the event of an attack on the Europol headquarters. The proposal was presented by the applicant at a conference in February 2006 to all the spokespersons of the police forces of the Member States. After this, the applicant made detailed arrangements with the units of Europol concerned. According to the applicant, Mr P. then had to submit the project for the approval of the Deputy Director and then of the Director of Europol, which he did not do, despite a reminder sent by the applicant to Mr P. on 11 October 2006. Thus, the applicant suffered damage as a result of the harm to his reputation with the police spokespersons of the Member States.
63. The applicant then states that the general reference in the 2006 assessment report to ‘some problems’ which he had in finalising a project for the creation of a ‘Europol Terminology Guide’ is not comprehensible. If those problems related to possible delays in the creation of that guide, the applicant points out, first, that it is clear from the 2006 assessment report that that project was not considered to be a priority. Second, the applicant points out that the ‘Europol Terminology Guide’ was finally completed and published at the beginning of December 2006.
64. Mr P. also criticised the applicant for not keeping the colleague shadowing him informed of all developments within his area of responsibility, which, according to the applicant is a false accusation. Moreover, in an email of 4 December 2006 the applicant’s shadow stated that he failed to inform her only once, that this was not a serious omission and that it was an exaggeration to call it an error. In any event, the applicant claims that the assessor should specify the occasions on which he had asked or reminded the applicant to inform his shadow of important matters falling within his area of responsibility.
65. Mr P. also stated in the 2006 assessment report that, when taking leave, the applicant had handed over tasks to other members of staff in a manner which created extra work and frustration. The applicant produces an email dated 31 October 2006 sent by one of his colleagues, Mrs K., who took over his work while he was on holiday at the beginning of September 2006, which indicated that only one problem had arisen and that it was not a ‘disaster’.
66. Finally, the applicant maintains that it is false and misleading to state in the 2006 assessment report that he carried out some tasks in a little too casual a way, without making the extra effort which would have led to better results, in particular as regards the preparation of workshops for the seminar in February 2006. The applicant claims that no criticism was raised at the meeting held immediately after the seminar for all the press officers of the Member States. An overview of the evaluation of the ‘Awareness Seminar’ shows that the marks given by the participants in the workshops organised by the applicant were high. Moreover, when the applicant announced that he was leaving Europol, he received thanks for the work he had done from colleagues and persons outside Europol.
67. Europol counters, first, as regards the alleged lack of clarity in the establishment of objectives, that the present proceedings do not concern the 2005 assessment report. Moreover, there is a manifest contradiction in stating, on the one hand, that the objectives established for 2006 in the 2005 assessment report were not measurable, while declaring, on the other hand, that the applicant had met them.
68. As regards the applicant’s allegation that the objectives for 2007 were not measurable, Europol observes that objectives are explicitly set out in section 8 of the 2006 assessment report. Those objectives are measurable since they all relate to the accomplishment of specific tasks and were agreed to by the applicant at the first meeting between him and his assessor on 17 November 2006.
69. Europol notes, finally, that, under the Guidelines, each objective does not need to cover an entire year.
70. Second, as regards the alleged delay in assessment, Europol points out, first, that the assessment reports for the years before 2006, which are now final, are outside the scope of the present proceedings. Europol then maintains that the applicant is mistaken in asserting that he was not informed of the delay in his assessment for 2004, or that he was not assessed at all for 2004. The applicant was informed in June 2004 of the departure of his former line manager and of the delay which that departure would cause as regards his assessment. For the period from 16 August 2004 to 24 January 2005, the applicant was assessed on the latter date. For 2005, he was assessed on 22 January 2006. Finally, for the period from January to September 2006, he was assessed on 25 October 2006.
71. As regards the establishment of the 2006 assessment report, Europol states that it was signed on 17 November 2006 and finalised in December 2006. Therefore, the applicant cannot maintain that there was any delay in its establishment or that the delay was unreasonable. Even if the time taken were considered unreasonable, Europol points out that it cannot constitute a ground for annulment of the 2006 assessment report.
72. Third, regarding the alleged failure of the countersigning manager, Europol first observes that the applicant met Mr Q. twice, which gave him an opportunity to make known his views on the 2006 assessment report. Next, Europol points out that it cannot be inferred from the fact that Mr Q. approved the assessment made by Mr P., that he did not discharge his obligations as provided for by point 8.1 of the Guidelines. Moreover, according to the case-law of the Court of Justice of the European Communities, it is open to the countersigning manager to confirm the assessment of the assessor.
73. Moreover, the fact that Mr Q. confirmed the assessment made by Mr P. does not mean that he did not examine the documentation provided by the applicant. The attempt to present the practice of the former Deputy Director of Europol, who acted as countersigning manager in the context of the 2005 assessment report, as evidence for the applicant’s allegations is clearly unfounded. The practice of that Deputy Director in 2005 could not possibly prove that Mr Q. did not, in 2006, read the documents provided by the applicant.
74. Next, Europol turns to the role of the countersigning manager which is, according to the Guidelines, to ‘act as a mediator should a dispute arise’. As such, the countersigning manager is not required to substitute himself for the assessor. He is merely required to hear both sides in a dispute, examine the respective positions and come to a conclusion. This task cannot be interpreted as creating an obligation on the countersigning manager to find a compromise.
75. As regards the statement that Mr Q. showed a ‘biased attitude’ towards the applicant, Europol stresses, first, that the applicant is, again, attempting to justify his assertion by appeal to conjecture and speculation without providing the slightest evidence. Next, the fact that the countersigning officer did not ultimately side with the applicant cannot establish that he is biased. Finally, the countersigning officer discharged his duties as a mediator correctly in hearing the applicant’s concerns and then arranging the meeting of 14 December 2006, to allow the applicant and Mr P. to attempt to arrive at an agreement.
76. Fourth, Europol observes that it is contradictory of the applicant to claim both that the ‘no-surprises’ approach provided for by the Guidelines was disregarded and to express his point of view on the assessment of his performance as brought to his attention throughout the assessment period and as addressed in the 2006 assessment report. Thus, Europol observes that the applicant was able to make known his views on the concerns raised, such as his failure to forward a monthly list of tasks and duties carried out to Mr P., his failure to keep the colleague shadowing him informed or the handover of tasks when on leave.
77. Europol states, in addition, that a written warning was delivered in person to the applicant regarding his conduct in communications to his superior on 3 April 2006. Moreover, in an email of 13 April 2006 to the applicant, Mr P. expressed his dissatisfaction at not being informed of the applicant’s communications with the Director of Europol. Then in August 2006, Mr P. verbally brought to the applicant’s attention some concerns he had regarding the applicant’s failure to use time for daily tasks and its impact on discouraging team spirit.
78. Europol observes, finally, that point 5.2 of the Guidelines, which requires that a ‘no-surprises approach’ be adopted towards underperformance, must be interpreted as an exhortation to management to ensure underperformance is dealt with as quickly as possible. This does not translate into a requirement that every point made in criticism in an assessment report must be directly justified by a previously notified instance of underperformance. Europol observes in that regard that, according to the case-law of the Court of Justice, the value-judgments made in an assessment report do not have to be discussed in advance or be made subject to written warnings, provided they are discussed during the assessment process, as was the case at three consecutive meetings held in the presence of the applicant during the procedure followed for the 2006 assessment.
79. In general, Europol claims that, if the breaches of obligations alleged by the applicant were proved, which they are not in this case, they would have to constitute substantive errors to invalidate the assessment. Such substantive errors are not expressly pleaded by the applicant.
80. Fifth, as regards the alleged errors of assessment, Europol observes, in general, that the Court’s scope of review is limited to verifying whether the challenged act is based upon a manifest error, that assessors have a discretion in their appraisal of the work of persons they are required to assess, that it is for the applicant to establish the existence of a sufficiently serious inconsistency between two assessment reports to warrant a limitation of the discretion of the administration and, finally, that the general explanatory commentary to the analytical points made in an assessment enables the Court to exercise its power of review.
81. In the present case, the applicant has not established the existence of a manifest error. Moreover, his allegations regarding isolated points in the 2006 assessment report cannot invalidate the general comments in that report.
82. For instance, as regards the comment in the 2006 assessment report regarding ‘smoking breaks’, Europol contends that it is directly relevant to the applicant’s working hours and thus clearly an assessment-related issue.
83. Next, as regards the applicant’s discontent at the negative remarks and comments made by Mr P. in the 2006 assessment report, Europol observes that the applicant confines himself to mere unsubstantiated claims and speculative conclusions.
84. As regards the alleged inconsistency between the content of the 2006 assessment report and the overall mark of 2 out of 5 obtained, the applicant takes account only of the positive remarks made in the 2006 assessment report, thus limiting himself to a selective reading of the content of that report.
85. Similarly, the applicant’s selective reliance on two examples of improvement in his performance in 2006 compared with his performance as assessed in previous assessment reports does not automatically entitle him to a better mark. According to Europol, the assessor’s comments need to be taken as a whole.
86. Europol also contends that the applicant seeks to illustrate an alleged ‘disproportion’ between positive and negative elements in the 2006 assessment report by substituting, without any basis for doing so, his own speculative evaluation for that of Mr P.
87. As regards the alleged ‘promise’ made in the 2005 assessment report, Europol points out that the report signals that ‘there has been a change in attitude towards the job ... [If] this approach continues, there is no doubt that the mark given under “Annual summary of performance” will change for the next assessment’. However, Europol stresses that this wording clearly cannot be understood as a binding commitment undertaken by Europol to automatically improve the applicant’s score in the 2006 assessment report.
88. Finally, as regards the arguments put forward by the applicant summarised in paragraphs 60 to 66 of this judgment, Europol alleges that the applicant seeks to challenge a number of passages from the 2006 assessment report, by citing certain specific isolated events. However, those passages of the 2006 assessment report were intended to reflect the overall impression gained by the assessor of the entire period under assessment.
Findings of the Tribunal
89. In support of his pleas in law of breach of Article 28 of the Staff Regulations, breach of the Guidelines, errors of fact and manifest errors of assessment, the applicant makes several claims. It is appropriate, first, to consider the claims relating to the pleas of breach of Article 28 of the Staff Regulations and the Guidelines. The claims made in support of the plea of errors of fact and manifest errors of assessment will be examined second.
– The claims in support of the pleas of breach of Article 28 of the Staff Regulations and of the Guidelines
90. The applicant alleges, first, that the objectives set for the assessments prior to 2006 and those set for 2006 and 2007 were not measurable. In that regard, the applicant cites Annex 2 to the Guidelines which specifies that a measurable (verifiable) objective ‘must be capable of assessment on the basis of quality, time, quantity and resources’.
91. It must be observed, first, that the assessment exercises prior to 2006 were concluded by assessment reports which have now become final. Therefore, since he did not submit, within the time-limit laid down by Article 92(2) of the Staff Regulations, a complaint against the assessment reports prior to the 2006 assessment report, the applicant cannot contest their legality in the present proceedings.
92. Second, it must be observed that the applicant confines himself to alleging that the objectives set for 2006 and 2007 are not measurable without specifying the objective or objectives to which he refers. If the applicant intends to refer to all the objectives set for 2006 and for 2007, it must be held that the applicant has not made clear in what respect they are not measurable or verifiable.
93. In any event, it does not appear from the 2005 assessment report or from the 2006 assessment report that the objectives set for 2006 and 2007 respectively cannot be verified. For instance, the 2005 assessment report set the following objectives for 2006: ‘to arrange more interviews than in 2005; to harmonise publications; to improve speech writing capacity; to be more involved in strategic issues’. For 2007, the 2006 assessment report set the following objectives: ‘to arrange and initiate more interviews than earlier; to finalise a publications production plan; to improve speech writing capacity; to develop a new set of law enforcement publications; to contribute to the development and update of a Media Strategy’. The 2005 assessment report and the 2006 assessment report also indicate the link between each individual objective and the objectives set for the unit to which the applicant belonged (link to team/Unit objectives). Moreover, it must be observed that the applicant claims to have met the objectives set for him for 2006 and 2007. That assertion contradicts his argument that the objectives for 2006 and 2007 were not measurable.
94. Next, as regards the claim that the countersigning manager, who is alleged to have little knowledge of English, neither examined the documents produced by the applicant nor listened to his arguments, suffice it to observe that those allegations are not supported by any specific factual evidence. In his application, the applicant confines himself to stating that ‘[i]t is not because Mr [Q.] met twice with [him] that this means he examined the documentation submitted by the [applicant] and heard his arguments. In fact, this never happened’. Moreover, there is no evidence on the file that the countersigning manager did not examine those documents or listen to the applicant’s arguments. As Europol pointed out, the fact that the countersigning manager did not reach a different conclusion regarding the assessment of the applicant from that reached by the assessor is not sufficient to establish that Mr Q. did not carry out his duties as countersigning manager properly.
95. In that connection it must be borne in mind that point 8.1 of the Guidelines provides that the countersigning manager is to hear the assessor and the member of staff and try to resolve their differences. In the present case it is common ground that the countersigning manager held several meetings with the applicant and the assessor. The applicant does not adduce the slightest evidence capable of demonstrating that, at those meetings, the countersigning manager did not fulfil his role of mediator properly. He confines himself to maintaining that the countersigning manager said at those meetings ‘that he did not know the appellant and that he normally did not change the score of the line manager and that performance was not good’ and that the countersigning manager did not follow until the end of December 2006 the one-day training course for assessors, thus hinting at a certain incompetence on the part of the countersigning manager without, however, proving it.
96. The applicant claims in addition that, in 2004, his performance was not assessed. It must be found, first, that an assessment report was drawn up for the period from 16 September 2004 to 24 January 2005, which was annexed to the defence by Europol. Therefore the only item missing from the applicant’s personal file is an assessment report for the period from 31 August 2003 to 16 September 2004. It is true that, according to case-law, the absence of a staff report from an official’s personal file is liable to cause that official non-material damage if such absence was capable of having affected his career (Joined Cases T‑78/96 and T‑170/96 W
v Commission
[1998] ECR-SC I‑A‑239 and II‑745, paragraph 233, and Case T‑246/02 Ferrer de Moncada
v Commission
[2004] ECR-SC I‑A‑257 and II‑1137, paragraph 68). In the present case, the applicant appears to be maintaining that the absence of assessment for 2004 ‘led to many problems directly related to the [applicant’s] assessment and the decision not to prolong his contract’. However, not only is this allegation not supported by any specific facts, but it is also not clear from the evidence on the file that the absence of assessment for part of 2004 had an effect on the 2006 assessment report or on the decision not to renew the contract.
97. As regards the claim that the applicant was not informed of the absence of an assessment for 2004, in breach of point 8.2 of the Guidelines, it is to be noted, first, that only a part of 2004, that is the period from 1 January to 16 September 2004, was not assessed. The Guidelines were not adopted until 13 October 2004. Second, even if the Guidelines had been applicable to the period from 1 January to 16 September 2004, it must be pointed out that, although point 8.2 of the Guidelines provides that any delays in the assessment report must be ‘notified’ to the person concerned, which, by Europol’s own admission, did not seem to have happened, it is settled case-law that breaches of procedural rules constitute substantial irregularities of such a kind as to render an assessment report invalid if the applicant can show that in the absence of those irregularities the content of the report might have been different (see, to that effect, Case T‑212/97 Hubert
v Commission
[1999] ECR-SC I‑A‑41 and II‑185, paragraph 53; judgment of the Civil Service Tribunal of 15 December 2008 in Case F‑34/07 Skareby
v Commission
[2008] ECR-SC I-A-1-000 and II-A-1-000, paragraph 40, on appeal to the Court of First Instance, Case T‑91/09 P). It has in no way been proven by the applicant that the failure to notify him of delay in the drawing up of the 2004 assessment report had any effect whatsoever on the content of the 2006 assessment report, against which the action was brought.
98. As regards the alleged delay in the assessment of the applicant for 2006, it must be pointed out, first, that neither the Staff Regulations nor the Guidelines lay down an exact date for the completion of assessment reports. Article 28 of the Staff Regulations provides only that an assessment report is to be drawn up ‘at least once a year’. It must be borne in mind that, although the administration has an overriding duty to ensure that staff reports are drawn up periodically on the dates laid down by the Staff Regulations and that they are drawn up in a proper form, both for reasons of sound administration and in order to safeguard the interests of officials, the administration has a reasonable period in which to draw up assessment reports in the absence of rules making the conduct of the assessment procedure subject to specific time-limits (see, to that effect, Case T‑193/03 Piro
v Commission
ECR-SC I‑A‑121 and II‑547, paragraphs 76 to 78). In the present case, the 2006 assessment report, which covered the period from January to September 2006, was completed and signed by the assessor and the applicant on 17 November 2006 and countersigned by the countersigning manager on 14 December 2006. In those circumstances, it must be considered that the 2006 assessment report was drawn up within a reasonable time. Therefore, the claim that the report was delayed must be dismissed.
99. The applicant also criticises the fact that the objectives for 2007 had to be met by March 2007. According to the applicant they needed to have been met by August 2007, when his contract ended. Suffice it to note that no provision of the Staff Regulations or the Guidelines prohibits a requirement that an objective be met before the end of the assessment period. Moreover, the applicant does not cite any specific legal basis in support of his argument. On the contrary, it appears from the provisions of the Guidelines, and in particular from point 7.3, that the objectives initially set can be altered during the course of the assessment period. Moreover, Annex 2 to the Guidelines provides that objectives should be ‘time-related: the objective should possess clear deadlines by which outputs should be delivered’, and thus do not require that the deadline should correspond to the end of the assessment period. Finally, it does not appear unreasonable to require an objective to be met some months before the end of the contract which was fixed at 31 August 2007. In addition, it must be observed that the applicant placed his signature on the page of the 2006 assessment report setting objectives for the end of March 2007, confining himself to asserting, in his application, that he ‘agreed on objectives in order to avoid discussion with his line manager’.
100. As regards the fact that the countersigning manager did not mention in the 2006 assessment report the outcome of his interview with the applicant, it should also be noted that no provision of the Staff Regulations or of the Guidelines imposes such an obligation on the countersigning manager. There is nothing to prevent the countersigning manager from confining himself to confirming the assessment made by the assessor. Moreover, according to case-law, the assessor is to carry out the assessment in close association with the countersigning manager, it being specified that the countersigning manager has the discretion, following a dialogue requested by the official assessed, either to amend or to confirm the report (see, to that effect, Case T‑157/04 De Bry
v Commission
[2005] ECR-SC I‑A‑199 and II‑901, paragraph 44).
101. The applicant submits that he learned ‘with great surprise’, at the time of his assessment, that his performance was unsatisfactory. He adds that, contrary to point 7.3 of the Guidelines, there was no interim assessment meeting.
102. Point 7.3 of the Guidelines does provide that after six months the official should be invited to attend an interim review meeting. According to the case-file, Europol does not dispute that no such meeting took place. Moreover, section 10 of the 2006 assessment report, headed ‘Probation/Interim Review’, makes no mention of one. However, as point 7.3 of the Guidelines makes clear, the purpose of that meeting is to determine whether the objectives remain or have been changed by external factors. It is true that point 7.3 of the Guidelines also indicates that the official should be given a self assessment form in advance of the meeting to allow him to prepare areas for discussion. It should therefore be considered that the applicant could reasonably have believed that, at that meeting, the unsatisfactory aspects of his performance would be discussed. However, even if the failure to hold such a meeting may constitute a breach of a procedural rule, it must be borne in mind, as already recalled in paragraph 97 of this judgment, that, according to case-law, breaches of procedural rules constitute substantial irregularities of such a kind as to render an assessment report invalid if the applicant can show that in the absence of those irregularities the content of the report might have been different. In the present case, however, that condition cannot be found to have been met.
103. Moreover, it must be pointed out that, in its defence, Europol contended that the applicant was given information about his performance several times in 2006. A written warning was sent to the applicant on 3 April 2006 about his conduct towards his line manager. Europol also states that, on 13 April 2006, the applicant’s line manager expressed his dissatisfaction at not being informed of the applicant’s communications with the Director of Europol and that, in August 2006, he verbally brought to the Applicant’s attention some concerns he had regarding the applicant’s failure to use time for daily tasks and its impact on discouraging team spirit. That contention by Europol was not disputed by the applicant at the hearing.
104. In any event, it must be borne in mind that, according to case-law, the very purpose of the reports procedure is to review the work and abilities of the official concerned at each predetermined due date. Since the assessor’s judgment relating to the reference period is drawn up following a procedure involving the participation of both parties, the official concerned cannot rely, subsequently, on the absence of intermediate criticisms during the reference period. It cannot therefore be required that the value-judgments made by line managers in the course of the consultation held under the reports procedure in respect of a given period be discussed beforehand between the official assessed and his superiors or form the subject of a prior written warning during the reference period since they are the subject of a genuine exchange of views during the reports procedure (see, to that effect, Case C‑344/05 P Commission
v De Bry
[2006] ECR I‑10915, paragraphs 37 to 45; Joined Cases T‑155/03, T‑157/03 and T‑331/03 Cwik
v Commission
[2005] ECR-SC I‑A‑411 and II‑1865, paragraph 142). In the present case, not only does the applicant not claim that he was deprived of any discussion with the participation of both parties during the assessment procedure, but also, as indicated in paragraph 94 of this judgment, nor does he establish that the countersigning manager failed to read the documents he sent him or listen to his arguments.
105. The applicant also alleges that most of the negative remarks and comments made by Mr P. were rather vague. The applicant adds that Mr P. told him that he worded them in this way purposely in order to protect him.
106. According to Article 44(1)(c) of the Rules of Procedure of the Court of First Instance of the European Communities, applicable mutatis mutandis to the Tribunal by virtue of Article 3(4) of Council Decision 2004/752/EC of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7) until the entry into force of the latter’s own rules of procedure, an application must state ‘the subject-matter of the proceedings and a summary of the pleas in law on which the application is based’. According to case-law, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Tribunal to exercise its power of judicial review. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible under the aforementioned provisions, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see, by analogy, the order of 28 April 1993 in T‑85/92 De Hoe
v Commission
[1993] ECR II‑523, paragraph 20, and the order of 21 May 1999 in Case T‑154/98 Asia Motor France and Others
v Commission
[1999] ECR II‑1703, paragraph 42; and the judgment in Case T‑277/97 Ismeri Europa
v Court of Auditors [1999] ECR II‑1825, paragraph 29).
107. In that regard, suffice it to observe that the applicant confines himself to stating that the negative comments made about him in the 2006 assessment report are ‘vague’ without specifying which comments are referred to, so that it is not possible to assess whether that claim is well founded. It must also be observed that Europol, which contended in its defence that the applicant made ‘simple unsubstantiated claims’, was not able to prepare its defence on that point. As to the allegation that Mr P. told the applicant that the vague wording was deliberate, it must be found that that allegation is not substantiated by any specific evidence.
108. The applicant appears, finally, to contest the reasoning in the 2006 assessment report in so far as no reasons are stated for not increasing the overall mark of 2 out of 5 awarded in the 2005 assessment report although the 2006 assessment report indicates that his attitude had improved. In support of this claim, the applicant cites case-law according to which the duty to state reasons for any change in relation to the previous staff report is intended to enable the official to know why the analytical assessments have changed, to verify the factors relied upon and hence to submit his observations on the statement of reasons in the context of his right to be heard. The periodic report is vitiated by failure to observe an essential procedural requirement if the failure to state reasons has infringed the official’s right to be heard (Case T‑1/91 Della Pietra
v Commission
[1992] ECR II‑2145, paragraph 30; Hubert
v Commission, paragraph 79; and Case T‑50/04 Micha
v Commission
[2005] ECR-SC I‑A‑339 and II‑1499, paragraph 36).
109. However, in the present case, the applicant’s mark did not change between the 2005 assessment report and the 2006 assessment report. In 2005 the applicant had already obtained an overall mark of 2 out of 5 and the appraisal ‘partially meets expectations’. It is true that the assessments obtained by the applicant varied between the 2005 assessment report and his previous assessments. However, as the applicant himself mentioned in the application, he did not contest the 2005 assessment report, which has now become final.
110. On the basis of all the foregoing considerations, the claims relating to the pleas of breach of Article 28 of the Staff Regulations and of the Guidelines must be rejected. Accordingly, those pleas must be dismissed as unfounded.
– The claims relating to the pleas of errors of fact and manifest errors of assessment
111. It must be observed, as a preliminary point, that assessors enjoy a very wide discretion when appraising the work of persons upon whom they must report (Case T‑187/01 Mellone
v Commission
[2002] ECR-SC I‑A‑81 and II‑389, paragraph 51). Consequently, review by the Community judicature of the content of staff reports is limited to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers (Case F‑42/05 Rossi Ferreras
v Commission
[2007] ECR-SC 1-A-1-000 and II-A-1-000, paragraph 33). It is not for the Tribunal to review the merits of the administration’s assessment of the professional abilities of an official, where it involves complex value-judgments which by their very nature are not amenable to objective verification (Case T‑96/04 Cwik
v Commission
[2005] ECR-SC I‑A‑343 and II‑1523, paragraph 41).
112. The applicant’s arguments to the effect that the 2006 assessment report was vitiated by errors of fact and manifest errors of assessment should be examined in the light of the above considerations.
113. The applicant submits, first, that the comments relating to ‘smoking breaks’ contained in the 2006 assessment report wrongly imply that the fact that he absents himself from his office for such breaks affects his performance.
114. It is not disputed by Europol that, in the 2006 assessment report, there is a comment in section 4, according to which, ‘since the discussion of time used in the office is a difficult issue [the applicant] and the first officer in charge of [the Corporate Communications Unit] have to agree on a more accurate time tracking system to cover breaks used for smoking’. However, the applicant’s argument that that comment wrongly implies that his absences from the office affect his performance is based on a purely subjective interpretation of that comment. The applicant has not established that it is clear from that comment that his ‘smoking breaks’ were considered to have had an effect on his performance. In any event, even if that were the case, it must be observed that the applicant has not established that that comment had a decisive influence on the outcome of his assessment for 2006 (see, to that effect, De Bry
v Commission, paragraphs 92 and 93). Rather, it must be held that this brief comment refers to an incident relating to the management of use of working time and invites the person concerned to make suitable arrangements and that it is accompanied by several other comments of a more general scope concerning the applicant’s performance.
115. Second, the claim that the overall mark of 2 out of 5 awarded to the applicant in the 2005 assessment report was not increased in the 2006 assessment report although a promise had been made in the 2005 assessment report that it would be if he were to improve, cannot be upheld.
116. It is true that the 2005 assessment report indicates that ‘there has been a change in [the] attitude [of the applicant] towards the job, which he still finds interesting, and the challenges which [the Corporate Communications Unit] faces; [if] this approach continues, there is no doubt that the mark give under “Annual Summary of Performance” will change for the next assessment’.
117. However, even if this comment amounts to a promise made to the applicant that his mark would be increased, it must be observed that the 2006 assessment report does not record the maintenance by the applicant of the positive attitude described in the 2005 assessment report. On the contrary, the assessor notes that it sometimes appears that the applicant ‘doesn’t appreciate all new developments and challenges’. It is true that the assessor also noted, in the 2006 assessment report, that ‘[c]ompared to the previous assessment the dissatisfaction felt by [the applicant] is not seen that often during 2006’ and that ‘[t]he general attitude towards the first officer in charge of the [Corporate Communications Unit] has changed to the better’. However, the marks awarded to an official by his hierarchical superiors in a staff report are a matter for their personal judgment alone and it is not for the Tribunal to substitute its own assessment for theirs (Case T‑53/99 Progoulis
v Commission
[1999] ECR-SC I‑A‑255 and II‑1249, paragraphs 27 and 29). Thus, even if the attitude of the applicant may have improved in 2006, he has not established that, by not awarding him a mark of 3 out of 5 as he wished, Europol has made a manifest error of assessment.
118. Third, the applicant alleges that there was a lack of proportion between certain comments contained in the 2006 assessment report. According to the applicant, whereas the assessor could have mentioned a ‘very good’ result, he only stated that ‘[g]ood feedback regarding [the applicant’s] performance [has] been received from exhibition organisers and also from persons who had their visits organised by [the applicant]’.
119. However, it is not apparent from the file that the applicant received from exhibition organisers or visitors only very good feedback. The applicant himself states, in the application, that the feedback on seminars which he organised and on comparable projects was good or very good, which clearly does not make the mention of ‘good feedback’ in the 2006 assessment report disproportionate.
120. Fourth, the applicant submits that his line manager was wrong to assert in the 2006 assessment report that ‘[i]nput [on the external communication strategy] was a little superficial but this might be due to the short notice given and time pressure’. According to the applicant, his contribution was not superficial. The applicant points out in that regard that, in his contribution, he quoted from his final examination paper in an ‘exam of a long distance study’, which had received the highest score in the class.
121. It must be observed that the applicant confines himself to maintaining that his contribution was not superficial, contrary to the contention of his line manager, without establishing that the latter made a manifest error of assessment. The mere fact that in that contribution the applicant quoted from his examination paper, which received the best mark, does not suffice to establish that his contribution was not ‘a little superficial’.
122. As to the applicant’s assertion that the pressure was ‘real and not “might be”‘, it must be observed that, in the 2006 assessment report, his line manager does not assert otherwise. He recognises the short notice given and the pressure, which are thus accepted, but confines himself to suggesting that they might be the reason for the fact that the contribution was ‘a little superficial’.
123. Fifth, the applicant claims that, in the 2006 assessment report, Europol made a number of errors of fact. First, the comment that ‘[d]uring the last two years the unit has got much more tasks as well as more staff [and it] sometimes seems as if [the applicant] doesn’t appreciate all new developments and challenges maybe because some of these are different compared to those [he] used to be familiar with’ is, he alleges, incorrect. Although the number of staff and the tasks of the unit had grown, the responsibilities and tasks of the applicant remained the same. The applicant merely disapproved of the unit’s lack of any strategy with regard to the work to be done.
124. It must be observed, on the one hand, that, contrary to the applicant’s claim, the 2006 assessment report indicates, not that his tasks and responsibilities had changed, but that the tasks and the staff of the unit had increased, which the applicant does not dispute. On the other hand, it must be considered that, by stating that he disapproved of the lack of a strategy with regard to the work to be done, the applicant does not contradict the assessor’s comment that ‘[i]t sometimes seems as if [the applicant] doesn’t appreciate all new developments and challenges’. In those circumstances, the applicant cannot maintain that an error of fact was made in the comment recorded in paragraph 123 of this judgment.
125. Next, the applicant disputes the assertion that he ‘hesitates when the line manager offers to help prioritising’. It must be observed that, while the applicant states in his application that he coped with the tasks required of him, he adds that they were ‘unnecessary changes in the priority setting [and] were quite confusing’. Therefore, the applicant does not entirely refute the above comment in the 2006 assessment report. He cannot therefore argue that that comment constituted an error of fact.
126. In addition, the applicant submits that, in the 2006 assessment report, it is incorrectly stated that he often neglected to forward a monthly list of tasks and duties performed. It must be observed that the applicant does not actually deny that finding but confines himself to explaining that if he did not ‘complete the work overviews’, it was because his superior did not read them.
127. As regards the reference to the applicant’s problems in finalising the project to create a Europol terminology guide, it must be observed that the applicant himself admits in his application that there was some delay in the project. In any event, it is apparent from the 2006 assessment report that his line manager attributes that delay to several factors.
128. The applicant also submits that it is not true that he failed to keep Mrs G., who was responsible for covering for him, informed. It must be found that, although Mrs G. took the view, in correspondence with the applicant, that that failure was not serious, she did none the less acknowledge that the applicant had failed to inform her. The applicant cannot therefore infer that that comment was vitiated by error when, in fact, he is putting a different interpretation on the significance of the fact at issue.
129. The applicant maintains that the comment in the 2006 assessment report that ‘the handover of tasks to other staff members in connection with leave can be improved in order to avoid unnecessary work and frustration’, does not reflect the truth. In that connection, the applicant produces a brief reply to an email of his from Mrs K., who took over his tasks when he was on holiday in September 2006, stating that only one problem arose and did not lead to a ‘severe disaster’. It must be observed that that email does not show that the comment in the 2006 assessment report does not reflect the truth. It is true that Mrs K. appears to confirm that the problem encountered in the handover of tasks did not lead to a ‘serious disaster’, but in writing that matters ‘can be improved’ the assessor does not contradict that assertion.
130. As regards the applicant’s allegation that it is ‘false and misleading’ to state in the 2006 assessment report that ‘[i]t will be beneficial if [he] doesn’t see the interest in his daily tasks as if he is too much under administration, but instead sees it as a positive interest in his work to the benefit of the unit and the organisation’, suffice it to note that the applicant confines himself to describing the positive reactions to his work from participants in workshops organised by him and the thanks he received on his departure from Europol from his colleagues and people outside Europol, without, however, establishing that that comment is vitiated by errors of fact.
131. Sixth, the applicant submits that there is an inconsistency in the 2006 assessment report between the award of an overall mark of 2 out of 5, on the one hand, and the positive general remarks in the report, on the other.
132. As the applicant himself recalls in his application, it is settled case-law that the purpose of the descriptive comments in an assessment report is to justify the analytical assessments made in the report. Those comments serve as the basis for establishing the assessment and enable the official to understand the mark awarded. Consequently, having regard to their dominant role in the drawing up of an assessment report, the comments must be consistent with the marks awarded, to such an extent that the marking must be considered to be the quantified or analytical transcription of those comments. In view of the very wide discretion which assessors are recognised as having when making judgments in relation to the work of persons upon whom they must report, a possible inconsistency in a staff report nevertheless cannot justify the annulment of that report unless the inconsistency is manifest (see, to that effect, Cwik
v Commission, paragraph 80).
133. In the present case, although the comments in the assessment report include positive appraisals, they also express reservations as regards certain aspects of the applicant’s abilities, skills and conduct. For instance, it is stated that ‘[i]t sometimes seems as if [the applicant] doesn’t appreciate all new developments and challenges’ in the ‘Corporate Communications’ Unit. It is also stated that the objectives set for the applicant were partially met, that the harmonising of publications has been made difficult by the lack of approval of a corporate design and that input on the external communications strategy was a little superficial. As mentioned in paragraphs 111 to 130 of this judgment, it has not been established that these comments are vitiated by errors of fact or manifest errors of assessment.
134. In those circumstances, no manifest inconsistency can be identified between the comments in the 2006 assessment report and the overall mark of 2 out of 5 awarded to the applicant. That mark is clearly the quantified transcription of the comments in the 2006 assessment report taken as a whole and not only of the positive general comments, as the applicant appears to maintain.
135. The conclusion to be drawn from the considerations set out in paragraphs 111 to 134 of this judgment is that the applicant has not proved that the comments in the 2006 assessment report are wholly without foundation in fact or are the result of a manifestly erroneous assessment of the facts of the case. That being so, the plea of errors of fact and manifest errors of assessment must be rejected.
136. Consequently, it follows from all the foregoing that the pleas of breach of Article 28 of the Staff Regulations, breach of the Guidelines, errors of fact and manifest errors of assessment, directly challenging the 2006 assessment report, must be rejected.
The plea of breach of the duty to state reasons directed at the decision not to renew the contract
Arguments of the parties
137. The applicant submits that the decision not to renew the contract should state reasons to enable him to be clearly informed. However, it did not. The reasons stated for the decision not to renew the contract were insufficient and based on an ‘invalid’ assessment. In that connection, the applicant submits that the assessment made of him in the 2006 assessment report was based on errors and inconsistencies.
138. The applicant also maintains that the decision to reject his complaint does not state any reasons either. He alleges that the Director of Europol confined himself to repeating the comments of the assessor in the 2006 assessment report in vague terms and without adducing any evidence.
139. At the hearing, the representative of the applicant submitted that several of the questions on the applicant’s contract renewal consideration form, which corresponded to those mentioned in Article 6 of the decision of the Director, were not answered.
140. Europol contends, first, that the applicant does not substantiate his allegation that insufficient reasons are stated. Next, Europol alleges that the reasons for not renewing the applicant’s contract are apparent merely from reading the decision not to renew the contract. Moreover, Europol observes that the decision is not based solely on the 2006 assessment report. Europol also states that the complaint, which runs to 30 pages, attests to the abundance of information available to the applicant. Finally, Europol adds that, in so far as the decision not to renew the contract is based on the 2006 assessment report, it does not contain the inconsistencies alleged by the applicant.
Findings of the Tribunal
141. Under Article 94(1) of the Staff Regulations, the employment of Europol staff is to cease, where the contract is for a fixed period, ‘on the date stated in the contract’.
142. According to case-law, the administration is not, in principle, required to state reasons for a measure by which it decides not to renew a fixed-term contract of employment when it expires. That case-law takes account of the fact that, as a rule, each of the contracting parties must expect, from the start of their contractual relationship, that the other party will make use of his right to rely, before the date of the expiry of the contract, on the terms of that contract as they were agreed, that is to say, on the fact that the contract will end on the date stated therein. In the absence of any right to the renewal of a fixed-term contract, it appears that it should not be necessary for the administration to state reasons for its adherence to the terms of the contract as regards the date initially fixed for its expiry (see, to that effect, Case T‑143/03 Smit
v Europol
[2005] ECR-SC I‑A‑39 and II‑171, paragraphs 26 and 27, and Case T‑258/03 Mausolf
v Europol
[2005] ECR-SC I‑A‑45 and II‑189, paragraphs 21 and 22).
143. However, as mentioned in paragraph 3 of this judgment, on 8 December 2006, the Director of Europol adopted a decision on the General Policy implementing Article 6 of the Europol Staff Regulations, which contains provisions on the renewal of contracts with Europol, set out in paragraph 4 of this judgment.
144. Thus, it must be held that Europol did not simply apply Article 94(1)(a) of the Staff Regulations. Europol introduced a special system designed to ensure transparency in the procedures for renewing contracts (see, to that effect, Smit
v Europol, paragraph 28, and Mausolf
v Europol, paragraph 23).
145. By the introduction of that special system, Europol specified the criteria it intended to apply when exercising its discretion as regards the renewal or non-renewal of contracts of employment. This resulted in a voluntary curb on Europol’s discretion, given that it was incumbent on Europol to comply with Guidelines which it had imposed on itself ( Smit
v Europol, paragraph 30, and Mausolf
v Europol, paragraph 25).
146. Moreover, it must be observed that the applicant’s contract renewal consideration form sets out, under the heading relating to ‘Line manager’s comments’, the criteria listed in Article 6 of the Director’s decision, which attests to Europol’s intention to follow the instructions in Article 6 in exercising its discretion with regard to the renewal of contracts.
147. It follows that the applicant was entitled to expect Europol to examine carefully and objectively whether he fulfilled the conditions required to have his contract renewed. If renewal of his contract was refused, the applicant thus had a legitimate interest in being given a statement of reasons reflecting such careful and objective consideration (see, to that effect, Smit
v Europol, paragraph 32, and Mausolf
v Europol, paragraph 27).
148. It must therefore be ascertained whether the decision not to renew the contract states sufficient reasons.
149. In that regard, it must be recalled that, according to settled case-law, the duty to state reasons for a decision adversely affecting an official is intended, on the one hand, to provide the persons concerned with sufficient details to enable them to assess whether the decision was well founded and whether it would be expedient to bring legal proceedings to contest its legality and, on the other hand, to enable the judicial review of the decision (Case C‑150/03 P Hectors
v Parliament
[2004] ECR I‑8691, paragraph 39; Case F‑121/05 De Meerleer
v Commission
[2007] ECR-SC I-A-1-000 and II-A-1-000, paragraph 144).
150. It follows that the statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the administration (Case‑358/90 Compagnia italiana alcool
v Commission
[1992] ECR I‑2457, paragraph 40), and the scope of that duty must be determined on the basis of the particular facts of each case (Case C‑169/88 Prelle
v Commission
[1989] ECR 4335, paragraph 9, and Hectors
v Parliament, paragraph 40).
151. It is in the light of these principles that the reasons which Europol stated for its decision not to renew the contract must be examined.
152. The decision not to renew the contract reads, inter alia, as follows:
‘A business case has been prepared and I must now inform you of the outcome. This business case considers a balance between the business needs for the post and your performance.
…
Taking into account your performance, which was discussed with [Mr Q.] and your [head of unit, Mr P.,] on the 15 th
of December, I have come to the conclusion that your performance does not reach a level which I would expect from a Europol staff member in order to justify the award of an extension of your second contract. I regret to inform you that your contract as a Second Officer will not be extended.
I recognise that you have made efforts to improve over the last year; however, your last assessment clearly demonstrates that your performance is still below what is expected of Second Officer after eight years of service.’
153. It appears from the wording of the decision not to renew the contract itself that the needs of the service, on the one hand, and the applicant’s performance as assessed over his eight years of service with Europol, on the other, were taken into account. It is also clearly stated that ‘your last assessment clearly demonstrates that your performance is still below what is expected of Second Officer after eight years of service’. In those circumstances the applicant cannot maintain that he was not clearly informed of the reasons for the non-renewal of his contract. Europol indicated the specific and concrete reasons, relating to the interest of the service and to him personally, for the non-renewal of his contract.
154. It must also be observed that the applicant was in a position to assess whether the decision not to renew the contract was well founded and whether it would be expedient to bring legal proceedings to contest its legality. It is clear from the application and the argument of the applicant’s representative at the hearing that, in the applicant’s view, the decision not to renew the contract was taken on the basis, inter alia, of the 2006 assessment report and the contract renewal consideration form. The applicant also seeks the annulment of the 2006 assessment report, in so far as it constitutes, according to him, the basis for the decision not to renew the contract.
155. For the sake of completeness, as indicated in paragraph 150 of this judgment, account must be taken, in assessing the reasons stated for an act adversely affecting an official, not only of the act itself, but also of the circumstances in which it took place. It must be observed that the applicant was already in possession, before the adoption of the decision not to renew the contract, of the information on the basis of which the administration took that decision. In particular, the 2006 assessment report was signed by the applicant on 17 November 2006, that is to say, a little more than a month before the adoption of the decision not to renew the contract. The written pleadings of the parties also show that, on 11 and 14 December 2006, that is to say, a few days before the adoption of the decision not to renew the contract, the applicant had an interview with Mr Q., and then with Mr Q. and Mr P. together, and the evidence on the case-file does not show that those interviews did not involve a discussion in which both parties were heard on the subject of the applicant’s performance. Finally, it must be observed that, as mentioned in paragraph 103 of this judgment, the applicant’s line manager informed him during the course of 2006 of his dissatisfaction with some of his conduct, which the applicant did not dispute.
156. From the considerations set out in paragraphs 152 to 155 of the present judgment, it is clear that sufficient reasons were stated for the decision not to renew the applicant’s contract.
157. That conclusion cannot be undermined by the applicant’s argument raised at the hearing that certain questions on the contract renewal consideration form were not answered by Europol. First, Article 6 of the decision of the Director, which establishes the list of questions for assessing whether an employment contract with Europol should be renewed or not does not require that all the questions on the form be answered. Second, it must be observed that Mr P., who filled in the form, answered six of the nine questions on the form. Third, it must be observed that Mr P.’s answers to the questions on the form are to the same effect as the reasons stated for the non-renewal of the applicant’s contract as set out in the decision not to renew the contract.
158. First, as regards the needs of the service, Mr P. answered the question ‘[d]oes the respective member possess knowledge or skills that are of particular importance to Europol which … could not easily be replaced by a recruitment procedure?’ and the question ‘[a]re particular projects planned or foreseeable which will require the specific skills and knowledge of the respective staff member?’ in the negative; and he circled the answer ‘no substantial loss’ in response to the question ‘[w]hat effect would the loss of this staff member’s skills and experience have on the skills profile of the unit and department in which [she/he] works?’. Second, as regards the applicant’s performance, in response to the question ‘[b]ased on the yearly assessments of the respective staff member, how has he or she performed in the past?’, Mr P. circled ‘below satisfactorily’ and ‘above satisfactorily’, thereby reflecting the respective assessments obtained both since and before the drawing up of the 2005 assessment report. In that latter regard, it is to be noted that, under the heading ‘Performance Summary’ on the contract renewal consideration form, the following assessments are given: ‘[p]robation satisfactory, [1 September 1999 to 4 September 2000] satisfactory or above, [5 September 2000 to 31 August 2001] above satisfactory, [31 August 2001 to 31 August 2002] above satisfactory, [31 August 2002 to 31 August 2003] above satisfactory, [24 January 2005 to December 2005] partially meets [performance] expectations (disagreement with countersigning officer).’
159. As it has been held that sufficient reasons were stated for the decision not to renew the contract, the claim that insufficient reasons were stated for the decision rejecting the complaint must be rejected.
160. Finally, as regards the claim that the decision not to renew the contract was erroneous in so far as it was based on the assessment of the applicant’s performance in the 2006 assessment report, suffice it to observe that, as set out in paragraphs 89 to 136 of this judgment, the pleas in law directly relied on against that report have been rejected. It follows that the present claim must be rejected. It should be added that the same would be true if this claim were classified as a plea in law of errors of fact concerning the decision not to renew the contract.
161. As a result of all the foregoing, the plea of breach of the duty to state reasons must be rejected as unfounded.
The pleas of misuse of powers and abuse of powers and breach of the principle of the protection of legitimate expectations
Arguments of the parties
162. The applicant submits that the sole aim of his line managers was not to renew his contract, despite the quality of his performance and the promise made to him in the 2005 assessment report, that he would be given a better mark if his approach continued.
163. The applicant alleges that the 2006 assessment report was used as a means of not extending his contract rather than assessing him, which also constituted a misuse of procedure. In that regard, the applicant’s representative pointed out at the hearing, clarifying an argument already put forward in the application, that, until the arrival of Mr P. as head of the Corporate Communications Unit, the results of his assessments were ‘satisfactory’ or ‘above satisfactory’. The applicant’s representative then pointed out that, after Mr P.’s arrival, the applicant obtained the assessment ‘partly meets expectations’ in the 2005 assessment report and the 2006 assessment report, with an overall mark of 2 out of 5.
164. The applicant thus believes that the assessment made of him could not be objective. He adds, moreover, that he was the victim of a bullying/mobbing strategy perpetrated by his superior. This also had a negative effect on his health, as it is attested by several medical certificates.
165. The applicant also points out that Mr P. told him on 5 January 2007 that he would support the applicant in his job applications only if he did not obstruct matters after the announcement that the contract would not be renewed, which, he argued, was an abuse of power
166. The applicant also submits that he had a legitimate expectation that his contract would be converted into one of indefinite duration or at least extended. He points out in that connection that, on 8 November 2006, Mr Q. recommended granting him a one year contract if the changes to Article 6 of the Staff Regulations were adopted by the Council.
167. According to Europol, the applicant has failed to adduce any objective, relevant and consistent evidence in support of his allegation.
168. Moreover, it contends that the applicant’s assertions are erroneous. In that regard, Europol points out that the decision not to renew the contract was not ta ken solely on the basis of the 2006 assessment report. It was the result of a balance between the overall level and evolution of the applicant’s professional performance during his eight years at Europol, on the one hand, and the business needs for the post, on the other.
169. As regards the plea of breach of the principle of protection of legitimate expectations, Europol points out that the indication in the 2005 assessment report that the applicant might get a better mark was clearly subject to a condition, that is to say, the continued improvement in the applicant’s performance. Second, according to Europol, an assessor cannot validly insert binding promises into an assessment report relating to the possible score of a future assessment report. Third, Europol asserts that the 2005 assessment report did not and could not validly prejudge the outcome of the overall assessment of the applicant’s performance in 2006. Nor could it predetermine either the decision on the renewal of the applicant’s contract, this being a matter which involved weighing up the applicant’s performance during his eight years as a member of staff of Europol, or the needs of the service. Finally, this passage, coming at the end of the 2005 assessment report, should be understood as an encouragement and not as a promise.
Findings of the Tribunal
170. As regards the plea in law of misuse of powers, it must be recalled that, according to case-law, the concept of misuse of powers applies to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may be vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (Case T‑111/99 Samper
v Parliament
[2000] ECR-SC I‑A‑135 and II‑611, paragraph 64, and Case T‑282/03 Ceuninck
v Commission
[2008] ECR-SC I-A-2-000 and II-A-2-000, paragraph 48; Case F‑46/07 Tzirani
v Commission
[2008] ECR-SC I-A-1-000 and II‑A‑1‑000, paragraph159). It is not, therefore, sufficient to refer to certain facts in support of claims; there must also be adduced evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability (see, by analogy, Case C‑274/99 P Connolly
v Commission
[2001] ECR I‑1611, paragraph 113; Ceuninck
v Commission, paragraph 48; Tzirani
v Commission, paragraph 159).
171. In the present case, the applicant cannot be found to have adduced any specific, objective and consistent evidence that Europol was pursuing an aim other than that stated.
172. The applicant confines himself to alleging that, with the arrival of Mr P. as head of the Corporate Communications Unit, the results he obtained in his assessment reports worsened, without, however, establishing that the sole purpose of the worsening marks was the non-renewal of his contract.
173. Moreover, as regards the claim that the arguments put forward in support of the pleas of breach of Article 28 of the Staff Regulations and the Guidelines, errors of fact and manifest errors of assessment demonstrate misuse of powers, suffice it to note that those pleas in law have been rejected.
174. In addition, it is settled case-law that, even though the possibility cannot be excluded that differences between an official and his immediate superior may cause a degree of irritation on the part of the immediate superior, that possibility does not, as such, imply that the immediate superior is not in a position to assess objectively the merits of the person concerned (Joined Cases T‑7/98, T‑208/98 and T‑109/99 De Nicola
v EIB
[2001] ECR-SC I‑A‑49 and II‑185, paragraph 188, and Case T‑249/04 Combescot
v Commission
[2007] ECR-SC I‑A-2-000 and II‑A-2-000, paragraph 71).
175. As regards the plea of breach of the principle of the protection of legitimate expectations, it must be observed, as a preliminary point, that the principle of the protection of legitimate expectations is one of the fundamental principles of the Community (Case 112/80 Dürbeck
[1981] ECR 1095, paragraph 48; Case F‑84/05 Neirinck
v Commission
[2007] ECR-SC I-A-1-000 and II-A-1-000, paragraph 79). The right to claim the protection of legitimate expectations is subject to the fulfilment of three conditions. First, precise, unconditional and consistent assurances from authorised and reliable sources must have been provided to the person concerned by the Community administration. Second, those assurances must have been such as to give rise to a legitimate expectation in the mind of the person to whom they were addressed. Third, the assurances given must comply with the applicable standards (see, to that effect, Joined Cases T‑66/96 and T‑221/97 Mellett
v Court of Justice
[1998] ECR-SC I‑A‑449 and II‑1305, paragraph 107, and Case T‑329/03 Ricci
v Commission
[2005] ECR‑SC I‑A‑69 and II‑315, paragraph 79; Neirinck
v Commission, paragraph 79).
176. Suffice it to note that the applicant has not established that precise, unconditional and consistent assurances were given to him as regards the conversion of his contract into a contract of indefinite duration or the renewal of his contract. It is true that, on 8 November 2006, on the applicant’s contract renewal consideration form, Mr Q. recommended that the applicant’s contract be extended for a further year if Article 6 of the Europol Staff Regulations, in the version in force until 5 December 2006, were amended. However, it must be held, as the heading under which this proposal by Mr Q. appears suggests, that this is merely a ‘recommendation’ by the Deputy Director of Europol. In those circumstances, the applicant cannot maintain that assurances were given to him as regards the renewal of his contract.
177. Finally the claim that the applicant was the victim of bullying at work by his superior must be rejected. First, the applicant does not substantiate that allegation. Second, it does not appear from the medical certificates produced by the applicant at the request of the Tribunal, mentioned in paragraphs 33 and 34 of this judgment, that the applicant’s health problems are the result of an alleged strategy of bullying at work by his superior.
178. Nor can the claim that Mr P. told the applicant, on 5 January 2007, that he would support him in his job applications if he did not obstruct matters after the announcement that his contract would not be renewed be upheld, as the applicant does not put forward any specific factual evidence in support of this allegation.
179. Consequently, the pleas of misuse of powers, abuse of powers and breach of the principle of the protection of legitimate expectations must be rejected as unfounded.
The pleas of breach of the duty to have regard to the welfare of staff, of the principle of sound administration, of the interest of the service and of the principle of non-discrimination
Arguments of the parties
180. The applicant maintains that, at his meeting with Mr Q. on 11 December 2006, he had the impression that Mr Q. did not understand him. According to the applicant, a communication problem arose initially because of poor knowledge of languages. Then Mr Q. did not take account of the written documents given to him by the applicant. He merely told the applicant that his 2006 assessment report was not good and that he did not generally change the assessors’ assessments.
181. On 14 December 2006, the applicant went on holiday. On the afternoon of that day, Mr P. contacted him to ask him to attend a meeting at 6 p.m. The applicant agreed.
182. The meeting of 14 December 2006 was between Mr Q., Mr P. and the applicant. The subject-matter of the discussions was the same as at the meeting of 11 December 2006. None of the evidence produced by the applicant was accepted. Mr Q. told the applicant that he should look for another job.
183. The applicant did not have an opportunity, on 14 December 2006, to sign the 2006 assessment report, so that, the following morning, he was contacted by Mr Q.’s secretary, who asked him if he could come in to sign the report. The applicant replied that he had already interrupted his holiday once and would not therefore come in. A driver and the secretary were therefore sent to his home and the applicant signed the 2006 assessment report.
184. The applicant submits that this intrusion into his private life and the moral pressure he had to cope with are not in conformity with the principle of proper administration and the duty to have regard for the welfare of staff which every administration must comply with.
185. Further proof of negligence and the lack of care taken with regard to the applicant lies in the suggestion in the decision not to renew the contract that ‘[s]hould you feel that Europol can assist you during this time to prepare yourself for your future career and return to your Competent Authority please contact the [Human] Resources Unit’.
186. In the view of the applicant, the Director seemed to be unaware that he was not a police officer, that he did not come from a national authority and thus would be unemployed after eight years of service with Europol. Consequently, the applicant states that he ‘perceived’ that remark as rather ‘cynical’.
187. The applicant adds that it would have been in conformity with the interest of the service to keep him in Europol since he already knew the work that needed to be done and he had demonstrated he could perform it very well. In many years spent working at Europol, he had always had very good performance assessments and it could not be a coincidence that the negative assessments began when Mr P. was appointed to the Corporate Communications Unit.
188. The applicant alleges that he worked so hard and so well that he was in fact acting as a deputy head of unit, even if this was never officially recognised. In May 2004, he was even short-listed for the position of First Officer in his unit and ended up in second place in the selection procedure. Yet, two years later, his work was considered to be so bad that the contract was not extended. In the view of the applicant, this was totally inconsistent and illogical.
189. The applicant states that, on the contract renewal consideration form, Mr P. had indicated that his departure would not entail any substantial loss. The applicant maintains that this cannot be true after eight years spent working at Europol.
190. Finally, the applicant points out that, according to the information received from the Human Resources Department of Europol, he was the only one from his department whose contract was not extended in December 2006. This additional element, he alleges, proves the unfair and discriminatory treatment to which he was subject.
191. Europol observes, first, that the applicant’s assertions are partly unsubstantiated and in all instances unproven. This is true, for example, of the applicant’s statement that the Deputy Director of Europol was unable to understand the applicant’s comments made in English. As Europol is an organisation whose working language is English, such an assertion obviously cannot be taken seriously.
192. Second, the applicant does not relate his assertions to any of the various pleas he raises.
193. Third, those assertions, even if proven, could not result in an annulment of the challenged decisions.
Findings of the Tribunal
194. To begin with, it must be observed that the applicant establishes a close link between the pleas of breach of the duty to have regard for the welfare of staff, of the principle of sound administration and of the interest of the service, on the one hand, and the pleas of breach of Article 28 of the Staff Regulations and the Guidelines, errors of fact and manifest errors of assessment, on the other. As a result, as Europol drew up the 2006 assessment report, against which those pleas were directed, without breaching Article 28 of the Staff Regulations and the Guidelines or committing errors of fact or manifest errors of assessment, the pleas of breach of the duty to have regard for the welfare of staff, of the principle of sound administration and of the interest of the service must be rejected, in so far as they are based on the pleas concerning the 2006 assessment report.
195. The applicant’s complaint that two members of Europol staff came to his home in order for him to sign his 2006 assessment report must also be dismissed. The applicant merely maintains in that regard that the incident, which was an ‘intrusion in [his] private life’ was ‘not in conformity with the principle of proper administration and the duty of care’, without making clear how such an incident breached the principle of sound administration and the duty to have regard for the welfare of staff.
196. The applicant’s argument that Europol breached the interest of the service by deciding not to renew his contract when he had, in his view, always had very good assessments until the arrival of Mr P. as head of the Corporate Communications Unit must also be dismissed. It has been held above that the 2006 assessment report was not vitiated by a manifest error of assessment and that the plea of misuse of powers is unfounded.
197. Nor is it possible to uphold the applicant’s argument that the principle of sound administration was breached by Europol when, in the decision not to renew the contract, it suggested that the applicant contact the ‘Human Resources’ Unit in the following terms:
‘I realise that this decision will none the less be disappointing for you, however I would still expect you to continue to support Europol for the remainder of your contract. Should you feel that Europol can assist you during this time to prepare yourself for your future career and return to your Competent Authority please contact the Human Resources Unit’.
198. As he was not on secondment from a national administration and thus had no guarantee of a job to return to, the applicant ‘perceived’ this proposal as the sign of a certain cynicism on the part of Europol. The applicant’s argument is based on a subjective interpretation of the decision not to renew the contract. It is true that the applicant was not on secondment from a national authority. However, it cannot be inferred from this mistake made by Europol that it breached the principle of sound administration in the absence of any indication or the slightest evidence put forward by the applicant to that effect. An objective reading of the decision clearly calls for the rejection of this claim.
199. Finally, as regards the plea of breach of the principle of non-discrimination, it must be noted that the applicant confines himself to maintaining that, in December 2006, he was the only staff member in the Corporate Governance Department whose contract was not extended, without substantiating this plea by specific legal and factual evidence.
200. It follows that the pleas of breach of the duty to have regard for the welfare of staff, of the principle of sound administration, of the interest of the service and of the principle of non-discrimination must be rejected as unfounded.
201. Accordingly, on the basis of all the foregoing arguments, the claims for annulment must be rejected.
202. In that regard, the evidence produced by the applicant by letter of 14 July 2008, mentioned in paragraph 30 of this judgment, cannot serve to invalidate that conclusion. Not only does that evidence, which is general in scope, concern the internal functioning of Europol, without its connection with the personal position of the applicant being established, but it must be held, without it being necessary to rule on its admissibility, that it is not such as to call into question the rejection of the claims for annulment.
203. Again, without it being necessary to rule on their admissibility, it must be observed that the witness statements from former colleagues mentioned in paragraph 35 of this judgment, produced by the applicant at the hearing, describe alleged management problems in Europol without establishing a clear connection between those problems and the personal position of the applicant in these proceedings.
204. As regards the applicant’s request that he be reinstated at Europol from 1 October 2007, suffice it to note that that request was subject to the annulment of the decision not to renew the contract. Moreover, it is settled case-law that the Community judicature may not, without encroaching on the prerogatives of the administrative authority, make declarations or findings of principle or address directions to Community institutions (see, to that effect, Case T‑583/93 P
v Commission
[1995] ECR-SC I‑A‑137 and II‑433, paragraphs 17 and 18; Case F‑68/06 Bakema
v Commission
[2008] ECR-SC I-A-1-000 and II-A-1-000, paragraph 24; and Case F‑104/06 Arpaillange and Others
v Commission
[2009] ECR-SC I-A-1-000 and II-A-1-000, paragraph 33).
2. The claim for damages
Arguments of the parties
205. The applicant claims that the failure to renew his contract for a ninth year has caused him material and non-material loss. In addition, he was unable to obtain or lost the chance of obtaining a contract of indefinite duration.
206. If the conversion of his contract into a contract of indefinite duration or the extension of his contract is not granted, the applicant considers that he should be compensated for the material and non-material loss suffered.
207. Moreover, even if he is successful in obtaining the annulment of the 2006 assessment report and the decision not to renew the contract, the applicant should, in any event, be granted appropriate compensation for the non-material loss suffered.
208. Europol counters, first, that the 2006 assessment report and the decision not to renew the contract are not unlawful. Next, as regards the material loss alleged, Europol points out that the applicant appears to base his claims on the argument that the award of a mark of 3 out of 5 in the 2006 assessment report would have led to the renewal of his contract, which, in turn, would have led to the granting of a contract of indefinite duration until he reached the age limit.
209. However, these arguments are purely hypothetical. First of all, the annulment of the 2006 assessment report cannot automatically give rise to the award of a better mark to the applicant. Second, even if a better mark were awarded to him, it could not automatically entail the renewal of his contract, given the obligation to find a balance between the overall performance of the applicant and the needs of the service. Third, even the renewal of the applicant’s contract could not automatically lead to its extension for an indefinite duration. In that regard, Europol stresses that the granting of a contract of indefinite duration requires not only the approval of the Director of Europol but also the consent of the Management Board of Europol, as provided by Article 6(4) of the Staff Regulations. Europol notes in that regard that, at the date when the defence was lodged, no contracts of indefinite duration had been granted by Europol, the Management Board of Europol having refused on two occasions to conclude such contracts.
Findings of the Tribunal
210. According to settled case-law in staff cases, a claim for compensation in respect of material and non-material damage must be dismissed in so far as it has a direct link with an action for annulment which has itself been dismissed as inadmissible or unfounded (Case T‑273/94 N
v Commission
[1997] ECR-SC I‑A‑97 and II‑289, paragraph 159; Case T‑214/02 Martínez Valls
v Parliament
[2003] I‑A‑229 and II‑1117, paragraph 43; and Cwik
v Commission, paragraph 72).
211. In the present case, there is a close link between the claims for annulment of the 2006 assessment report and the decision not to renew the applicant’s contract, on the one hand, and the claim for damages, on the other. In those circumstances, the claim for damages must be rejected in so far as the pleas put forward in support of the claims for annulment disclosed no unlawful conduct on the part of Europol and thus no wrongful act for which it could be liable.
212. Even if the applicant intended to allege wrongful conduct on the part of Europol, it must be held that he has not established the existence of a wrongful act distinct from the irregularities relied on in challenging the decision not to renew the contract and the 2006 assessment report.
213. In these circumstances, the claim for damages must be rejected as unfounded.
214. Accordingly, it follows from all the foregoing that the action must be dismissed in its entirety.
Costs
215. Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs apply only to cases brought before the Tribunal from the date on which those Rules entered into force, namely 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance on the subject continue to apply mutatis mutandis
to cases pending before the Tribunal before that date.
216. Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of those Rules, in proceedings between the Communities and their servants the institutions are to bear their own costs. Since the applicant has been unsuccessful, each party must be ordered to bear its own costs.
217. In the present case, as the applicant has been unsuccessful, each party must be ordered to bear its own costs.
Operative part
On those grounds,
THE TRIBUNAL (Second Chamber)
hereby:
1. Dismisses the action.
2. Orders each party to bear its own costs.