62013FJ0048_EN
Parties
Grounds
Operative part
Parties
In Case F‑48/13,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
CW,
official of the European Parliament, residing in Brussels (Belgium), represented by C. Bernard-Glanz, lawyer,
applicant,
v
European Parliament,
represented by M. Dean and S. Alves, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
composed of M.I. Rofes i Pujol, President, K. Bradley and J. Svenningsen (Rapporteur), Judges,
Registrar: J. Tomac, Administrator,
having regard to the written procedure and further to the hearing on 13 March 2014,
gives the following
Judgment
Grounds
1. By application received at the Registry of the Civil Service Tribunal on 21 May 2013, CW brought the present action for annulment of the final version of her staff report for 2011, as amended by the decisions of the European Parliament appointing authority (‘the appointing authority’) of 18 July 2012 and 29 January 2013 (‘the 2011 staff report’).
Legal context
1. The Staff Regulations of Officials of the European Union
2. Under the first paragraph of Article 21 of the Staff Regulations of Officials of the European Union, in the version applicable to the present dispute (‘the Staff Regulations’):
‘An official, whatever his rank, shall assist and tender advice to his superiors; he shall be responsible for the performance of the duties assigned to him.’
3. Article 43 of the Staff Regulations provides:
‘The ability, efficiency and conduct in the service of each official shall be the subject of a periodical report made at least once every two years as provided for by each institution ...’
2. Provisions Applicable to Permanent, Temporary and Auxiliary Interpreters of the Parliament
4. By decision of 3 January 2006, the Secretary-General of the European Parliament (‘the Parliament’) established the Provisions Applicable to Permanent, Temporary and Auxiliary Interpreters of the Parliament. Article 7 of those Provisions, entitled ‘Composition of teams’, provides:
‘1. The number of interpreters per booth for simultaneous interpretation varies with the number of languages, and in particular:
– there must be [two] interpreters per booth for up to [six] passive languages;
– there must be [three] interpreters per booth for [seven] or more passive languages ...’
3. The Team Leader Guide
5. The version of the Team Leader Guide applicable to the present dispute, adopted by the Parliament’s Directorate-General (DG) for Interpretation and Conferences (‘the DG for Interpretation and Conferences’) provides, under the heading ‘On your return’:
‘You must always submit a “Team Leader Report” to the Director-General through her secretariat. The Director-General, the Directors and the Heads of Unit ... need to be made aware of any relevant details and specific problems arising on a particular mission in order to avoid their recurrence in the future.
...
The “Team Leader Reports” need to be extremely accurate and objective .... [Drawing up such reports] is part of your obligations as officials and you will be assessed for these capacities.’
Background to the dispute
1. Overview and subject-matter of the dispute
6. On 6 October 2003, the applicant was recruited as a member of the Parliament’s auxiliary staff and was assigned to the Slovak Interpretation Unit of the Directorate for Interpretation in the DG for Interpretation and Conferences. From 8 October 2004, she was employed as a temporary member of staff in that Unit.
7. On 1 October 2008, the applicant was appointed as a probationary official of the Parliament and was assigned to the Czech Interpretation Unit (‘the Unit’). She was established in her post on 1 July 2009.
8. From 2008 to 2010, the applicant and Ms H. were Unit colleagues. When the post of Head of Unit became available, both women submitted applications. At the end of the selection procedure, the applicant’s application was rejected in favour of Ms H. (‘the Head of Unit’)’s application.
9. The applicant was a team leader on a number of occasions in the Parliament’s three places of work and took part in several missions outside those locations. In addition, in September 2009, she was the team leader for a long-term mission in the Czech Republic.
10. At the beginning of 2012, the applicant’s draft staff report for 2011 was drawn up by the Head of Unit (‘the first reporting officer’). There was no consultation process.
11. On 8 March 2012, the first reporting officer validated the draft staff report for 2011 and, on 14 March 2012, it was approved by the Director of the Directorate for Interpretation (‘the final reporting officer’ or ‘the Director’).
12. On 3 April 2012, the applicant signed that version of her 2011 staff report, but submitted some observations.
13. On 26 April 2012, the final reporting officer responded to the applicant’s observations.
14. On 10 May 2012, the applicant contested that version of the 2011 staff report before the Reports Committee, particularly with regard to six comments and opinions included in that report (‘the contested remarks’).
15. By decision of 19 June 2012, the Director-General of the DG for Interpretation and Conferences awarded the applicant one merit point.
16. On 4 July 2012, having heard the applicant and the first reporting officer on 13 June 2012, the Reports Committee delivered an opinion in which it concluded that, given its redundancy, it was necessary to delete the phrase from the first reporting officer’s assessment indicating that the applicant ‘is expected to improve communication and receptiveness to instructions’. By contrast, it considered that there was no need to uphold the applicant’s other ‘complaints’.
17. By decision of 18 July 2012, the Secretary-General of the Parliament stated that he was of the view that the note ‘is expected to improve communication and receptiveness to instructions’ which appeared in the version of the 2011 staff report submitted to him for approval should be retained, given the reporting officers’ wide discretion. Otherwise, he found that there was no need to amend the 2011 staff report.
18. By letter of 21 September 2012, the applicant lodged a complaint against her 2011 staff report, as amended by the Secretary-General’s decision of 18 July 2012, and the decision to award her one merit point for the year in question.
19. By decision of 29 January 2013, the President of the Parliament, as the appointing authority, allowed the applicant’s complaint against the decision to award her one merit point, on the ground that the decision in question had been adopted before the 2011 staff report was finalised.
20. By that same decision of 29 January 2013, the President of the Parliament rejected the complaint against the 2011 staff report except in so far as it concerned the last part of the second of the contested remarks. On that subject, a decision was made to delete the phrase ‘[e.g.] on training (emails [of 17, 18 and 19 May 2011])’ from the note ‘[s]hould improve [her] knowledge of rules, [e.g.] on training (emails [of 17, 18 and 19 May 2011])’. On the basis of the documents provided by the applicant, the President of the Parliament considered that retaining that phrase represented a manifest error of assessment.
21. Following the hearing held on 13 March 2014, on 26 March 2014 the Parliament adopted a decision awarding the applicant one merit point for the year 2011.
2. The contested remarks as set out in the documents in the case-file
Facts relating to a mission to Baku — first contested remark
22. During a mission to Baku (Azerbaijan) on 20 and 21 June 2011 (‘the mission to Baku’), the applicant took on the role of Team Leader. Although the interpreting equipment was of high quality, the size of the booth did not comply with EU technical standards.
23. On 23 June 2011, before submitting her Team Leader Report (‘TLR’) later that day, the applicant informed her Head of Unit orally of the technical problem which the team had faced in the workplace during the mission to Baku. She explained that the team had adopted a flexible approach so as to ensure the quality of their work. At that time, the Head of Unit did not specifically ask for the ‘incident’ to be recorded in the TLR.
24. The TLR, drawn up by the applicant on the same day, makes no mention of any breach of the applicable technical standards, in the present case the technical standards relating to the size of interpreters’ booths.
25. On 27 June 2011, the Head of Unit sent the applicant an email containing the following question: ‘Did you describe the working conditions — including the matter of the booths — in the [TLR] just as you had described them to me on Thursday [23 June 2011] after the meeting?’
26. On the same day, the applicant replied by email that, having managed to find a solution to a problem which had not overly affected the team, she had felt that there was no need to refer to a breach of working conditions in her TLR.
27. On 28 June 2011, the Head of Unit, referring to the information which she had received orally from the applicant on 23 June 2011, asked the applicant if she were sure that there had been no breach of the working conditions. In an email sent the same day, the applicant explained that she had made an ad hoc decision on the spot in Baku.
28. In an email of 29 June 2011, the Head of Unit explained that a TLR must disclose any issue relating to a breach of working conditions so that the Secretary-General of the Parliament can take the necessary measures.
29. As part of her reply by email on 30 June 2011, the applicant wrote the following to her Head of Unit: ‘Just to make sure that I understand you correctly: are you asking me to put information that I relayed to you privately [on 23 June 2011] into the [TLR] ...? [I]f you think that I did not handle the task sufficiently well and you would like to write the [TLR] differently, let me know exactly what you want me to do and I will be happy to consider it.’
30. Later, in an email of 23 November 2011, the applicant informed her Head of Unit that she would like to participate in a team leader seminar. The Head of Unit replied to that request on the same day, stating that ‘[i]f such a seminar [were] available [she would] gladly recommend [the applicant] for it’.
31. The comment included in the 2011 staff report under the heading ‘Efficiency’ refers to the facts outlined above in the following terms: ‘Overall good, when [team leader] on a mission to Baku, good performance [even though she] did not[, during that mission,] mention a breach of working conditions’ (‘the first contested remark’).
Facts relating to a request to participate in a summer English refresher course — second contested remark
32. It can be seen from the staff report for 2010 that participation in a summer English refresher course was one of the objectives assigned to the applicant for 2011.
33. In order to enable the applicant to participate in a summer course of that kind, on 7 April 2011 the Head of Unit wrote a letter of recommendation supporting her application to take part in a course organised by the University of Bath (United Kingdom).
34. However, after submitting her completed file to the competent department of the Parliament, on 20 April 2011 the applicant learned that administrative rules precluded her from enrolling in a summer refresher course of that kind.
35. In relation to that training, a comment included in the 2011 staff report under the heading ‘Conduct’ stated that the applicant ‘[s]hould improve [her] knowledge of rules, [e.g.] on training (emails [of 17, 18 and 19 May 2011])’. However, as has been mentioned above, by decision of 29 January 2013 the appointing authority asked the applicant’s reporting officers to delete the last part of that comment, that is, the words ‘[e.g.] on training (emails [of 17, 18 and 19 May 2011])’. Consequently, only the note ‘[s]hould improve [her] kno wledge of rules’ (‘the second contested remark’) now appears in the 2011 staff report.
Facts relating to the applicant’s alleged contribution to a negative atmosphere in the Unit — third contested remark
36. On 22 June 2011, following a Unit meeting held on 23 May 2011 (‘the meeting of 23 May 2011’), copies of the minutes were distributed. These were followed by exchanges of views. The initial deadline for submitting comments — 1 July 2011 — was extended until 4 July 2011 by the Head of Unit.
37. By email of 4 July 2011, the applicant and three of her Unit colleagues proposed that amendments be made to those minutes.
38. By email of 11 July 2011, the Head of Unit announced that she could not accept the proposed amendments and, presenting the final version of the minutes from the meeting of 23 May 2011, pointed out to the applicant and her colleagues that, as a general rule, it was for her (as Head of Unit) to make the final decision on whether corrections and suggestions could be included in the minutes of Unit meetings.
39. On 12 July 2011, since there had been no response from her superior regarding the amendments to the minutes which had been proposed by one of her colleagues, the applicant asked the Head of Unit to show her where to find the rule which the latter was using as a basis for making the final decision on which corrections and comments should be included in the minutes of Unit meetings.
40. In addition, by email of 28 July 2011, a copy of which was sent to the members of the Unit, the applicant informed the Head of Unit that she would like to consult the internal rules on drafting minutes for Unit meetings. In an email of 29 July 2011, the Head of Unit once again emphasised that it was for her, as Head of Unit, to determine the points to be included in the minutes of Unit meetings. She also confirmed that she would endeavour, after the summer holidays, to find out if there were any written provisions on drafting minutes for Unit meetings.
41. On 18 August 2011, a meeting was held which was attended by the applicant, three of her colleagues, and the Director. The minutes of the meeting of 23 May 2011 were discussed at that meeting, but the discussions did not help to bring about a satisfactory solution for the applicant and her colleagues.
42. On 13 September 2011, having consulted the Director, the Head of Unit sent all Unit staff an email reiterating the general principles governing the drafting of minutes for Unit meetings. On 6 October 2011, making reference to points 6 and 7 of those principles, the applicant sent an email to all members of the Unit, asking the Head of Unit to attach the comments made by herself and her colleagues on 4 July 2011 to the minutes of the meeting of 23 May 2011.
43. On 24 October 2011, a meeting took place between the applicant, the Director and the Head of Unit (‘the meeting of 24 October 2011’). At that meeting, the Director asked the applicant immediately to withdraw her request concerning the minutes of the meeting of 23 May 2011, which she did.
44. At a Unit meeting held on 21 November 2011, the Head of Unit proposed to all Unit staff that a fresh start be made following the events which had taken place during the summer.
45. According to the appointing authority, those events were the reason for including the following comment in the 2011 staff report under the heading ‘Conduct’: ‘Contributed to a negative atmosphere in the [U]nit (meeting with the Director and the [Head of Unit] on 24 [October 2011])’ (‘the third contested remark’).
Facts relating to the applicant’s alleged intransigent attitude towards her superiors — fourth contested remark
46. When she was asked, on 7 June 2011, to hand over her passport to the competent department so that it could obtain a visa for her in time for a mission in a non-Member State from 20 to 21 June 2011, the applicant realised that she had left her passport at her parents’ house in the Czech Republic the previous weekend, that is, 4 and 5 June 2011.
47. By an initial email of 8 June 2011, the applicant informed her Head of Unit that the Parliament’s Protocol department was not able to guarantee that her visa application would be processed in time as she did not have her passport with her in Strasbourg (France). In her reply sent later that same day, the Head of Unit asked the applicant to provide the documents and photos requested by the Protocol department by 10 June 2011. In that reply, the Head of Unit also observed that the fact that the applicant had complained to a number of departments was not improving the situation.
48. In a second email sent on 8 June 2011, the applicant contested the Head of Unit’s observation regarding her alleged ‘complaining’ to various departments. She also informed the Head of Unit that, unfortunately, she would not be able to hand over the necessary documents and photos to the Protocol department on Friday, that is, 10 June.
49. In her reply to that second email, sent later that same day, the Head of Unit criticised the applicant for not declaring, when submitting a request on 7 June 2011 for annual leave for 10 June 2011, that she would be unable to provide her passport as part of the formalities for obtaining a visa. By a further email, also sent on 8 June 2011, the applicant replied that the issue she was facing had nothing to do with her leave application. It was in that context that she asserted in that email that ‘even though this is none of your business, just for the record I am informing you that I would not be able to present my passport [on Friday 10 June 2011] with or without the [request for] annual leave.’
50. On 10 June 2011, the applicant finally sent her passport to the Protocol department. Thus, she was able to take part in the mission as initially planned. In that regard, according to the applicant, she and the Head of Unit decided by mutual agreement, at a meeting which took place on 4 July 2011, to settle the ‘passport episode’ amicably.
51. However, that episode earned the applicant the following note in her 2011 staff report under the heading ‘Conduct’: ‘[n]eeds to adopt a less intransigent attitude towards [her] superiors (see Note on 20 [September 2011])’ (‘the fourth contested remark’).
Facts relating to the alleged need to issue reminders to the applicant in order for her to comply with instructions — fifth contested remark
52. On 31 August 2011, the applicant agreed to update the Common Consolidated Corporate Tax Base glossary (‘the CCCTB glossary’ or ‘the glossary’). At that time, she stated that, if the Head of Unit agreed, she would ‘start working on [the glossary] immediately after the seminar on Monday afternoon’, that is, 5 September 2011, the date of a seminar on the training subject ‘The Common Consolidated Corporate Tax Base’ (‘the seminar of 5 September 2011’) in which she was supposed to take part. The Head of Unit replied that of course the applicant could ‘start working on the glossary ... on Monday afternoon’.
53. According to the applicant, the Head of Unit did not set any specific deadline for carrying out the work of updating the CCCTB glossary.
54. By email of 10 November 2011, the Head of Unit asked the applicant ‘[h]ow far [she was]’ with the CCCTB glossary. The applicant replied that she would like ‘to dedicate one more half a day to [the glossary;] maybe during [“turquoise days”] again’. It can be seen from an email exchange between the Head of Unit and the applicant on 11, 14, 15, 17 and 18 November 2011 that the Head of Unit wished the CCCTB glossary to be finished as soon as possible and in any event before the ‘turquoise days’ (one of the annual weeks reserved for external Parliamentary activities during which no formal political or legislative activity takes place at the Parliament).
55. On 14 December 2011, the applicant submitted the glossary which she had received at the seminar of 5 September 2011, supplemented with some new entries and additional translations of existing terms.
56. Making explicit reference to the updating of the CCCTB glossary, the following comment is included in the 2011 staff report under the heading ‘Conduct’: ‘Complied with instructions only after a reminder (CCC[TB] glossary, reminder on 10 [November] ...’ (‘the fifth contested remark’).
Facts relating to an alleged lack of communication and receptiveness to instructions — sixth contested remark
57. In the 2011 staff report, under the heading ‘General assessment’, it is stated on two occasions that the applicant must ‘improve [her] communication and receptiveness to instructions’ (‘the sixth contested remark’).
58. In its decision of 29 January 2013 on the applicant’s complaint, the appointing authority explained that the reason for the first part of the sixth contested remark was that, ‘although [her] Head of Unit [had] repeatedly invited [her] to personal meetings, [the applicant’s] insistence on written contact rather than personal dialogue made understanding and cooperation more cumbersome’. However, according to the applicant, the Head of Unit did not invite her to any personal meetings.
59. The second part of the sixth contested remark refers, in particular, to the email of 6 October 2011, in which the applicant, in response to the list of general principles governing the drafting of minutes for Unit meetings sent by the Head of Unit, returned to the issue of the minutes of the meeting of 23 May 2011.
Forms of order sought and procedure
60. The applicant claims that the Tribunal should:
– declare the action admissible;
– annul her 2011 staff report and, in so far as necessary, the appointing authority’s decision rejecting her complaint;
– order the Parliament to pay the costs.
61. The Parliament contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs.
62. On 7 March 2014, the applicant submitted new offers of evidence relating to the first and fifth contested remarks. Subsequently, in order to contest the arguments put forward by the applicant on the basis of those new offers of evidence, on 12 March 2014 the Parliament produced five new documents, the first two of which relate to the first contested remark and the next two of which relate to the fifth contested remark. The fifth document submitted is, in essence, related to a question asked by the Judge-Rapporteur in the preparatory report for the hearing.
63. At the hearing, the Tribunal, while reserving its decision on the issue of whether the parties’ new offers of evidence were admissible, decided to grant the applicant two weeks to submit her observations on the documents most recently filed by the Parliament, which she did on 26 March 2014.
64. In those circumstances, the Tribunal decides to accept the new offers of evidence submitted by the parties in relation to the first contested remark. By contrast, regarding the new offers of evidence submitted by the parties in relation to the fifth contested remark, the Tribunal finds that no proper reasons have been given by either party for the delay in submitting those offers. Accordingly, those offers must be rejected.
Law
1. Subject-matter of the dispute
65. It should be borne in mind that, under Article 91(1) of the Staff Regulations, only acts adversely affecting a person constitute acts open to challenge. In the present case, the 2011 staff report is an act adversely affecting a person. However, the only parts which are continuing to have an adverse effect are the contested remarks included in the 2011 staff report which the appointing authority, by its decision of 29 January 2013 concerning the applicant’s complaint, has refused to delete (see, to that effect, van Arum v Parliament F‑139/07, EU:F:2009:105, paragraph 29).
66. In that regard, it should be borne in mind that, according to settled case-law, actions for annulment formally directed against the decision to reject a complaint have the effect of bringing before the Tribunal the act against which the complaint was submitted when they, as such, lack any independent content (see, to that effect, judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).
67. Since, by its decision of 29 January 2013, the appointing authority revised its position and amended the 2011 staff report, the present action must be considered to be directed against that staff report as last amended by that decision rejecting the applicant’s complaint.
2. Action for annulment of the 2011 staff report
68. In support of her action, the applicant raises, in essence, two pleas in law, one alleging manifest errors of assessment and the other alleging a misuse of powers.
First plea in law, alleging manifest errors of assessment
69. By her first plea, the applicant claims that, in choosing to include the contested remarks in her 2011 staff report, the appointing authority has made manifest errors of assessment.
70. In that regard, the Tribunal observes, as a preliminary point, that reporting officers enjoy a wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the EU 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. Thus, 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 ( Wenning v Europol, F‑114/07, EU:F:2009:130, paragraph 111 and the case-law cited, and Faria v OHIM, F‑7/09, EU:F:2010:9, paragraph 44 and the case-law cited).
71. Since the first plea in law alleges manifest errors of assessment, it is necessary to recall the circumstances in which the Tribunal may find that a decision is vitiated by a defect of that kind, particularly in the field of assessing officials’ merits.
72. In that regard, an error may be regarded as manifest only where it can be easily detected in the light of the criteria to which the legislature intended the exercise of decision-making powers to be subject (see, to that effect, Canga Fano v Council, F‑104/09, EU:F:2011:29, paragraph 35).
73. As a result, in order to establish that the administration made a manifest error in assessing the facts which is such as to justify the annulment of the contested decision — in the present case the 2011 staff report — the evidence adduced by the applicant must be sufficient to render implausible the assessments of the facts made in that decision (see, to that effect, AIUFFASS and AKT
v Commission, T‑380/94, EU:T:1996:195, paragraph 59, and judgment in BUPA and Others
v Commission, T‑289/03, EU:T:2008:29, paragraph 221). In other words, the complaint alleging a manifest error of assessment must be rejected if, in spite of the evidence put forward by the applicant, the contested assessment still appears to be plausible.
74. That is particularly the case where the decision at issue is vitiated by errors of assessment which, taken together, are of only minor significance and hence are unlikely to have influenced the administration (see, to that effect, Adia Interim
v Commission, T‑19/95, EU:T:1996:59, paragraph 49; Belfass
v Council, T‑495/04, EU:T:2008:160, paragraph 63; and AJ
v Commission, F‑80/10, EU:F:2011:172, paragraph 36).
75. The contested remarks, being six complaints put forward by the applicant in support of her first plea alleging manifest errors of assessment, must now be examined in the light of those considerations.
First contested remark
– Arguments of the parties
76. The applicant claims that the remark stating that she did not mention a breach of working conditions in her TLR is unfounded. She submits in that regard that, having heard her oral explanations concerning the size of the interpreters’ booth in Baku (which did not comply with the applicable EU standards), the Head of Unit did not ask her to record them in the TLR. Thus she is of the opinion that she was entitled to conclude that the problem, which had been resolved on the spot, did not need to be referred to subsequently in that report. Moreover, according to the applicant, the situation her team had had to deal with could not be described as a ‘breach of working conditions’.
77. Making reference to the Team Leader Guide, as updated on 14 March 2013, which states that persons responsible for missions need to be ‘made aware’ of any relevant details and specific problems arising in the course of a mission, the applicant submits that, since she had — albeit orally — made the Head of Unit aware of the incident, she had complied with the requirements of that guide. It is therefore a manifest error to assert, as the appointing authority does in the 2011 staff report, that she did not mention that incident.
78. On that note, the applicant adds that she has been a team leader only on rare occasions and that she has expressed, on several occasions, her desire to participate in a team leader seminar. Thus, for that reason, she is of the opinion that, having already reported the incident orally to her Head of Unit, she had no reason to believe that there was any need to record it in writing.
79. In addition, concerning more specifically the question asked by the Head of Unit in her email of 27 June 2011, the applicant denies that the email in question constituted a ‘reminder’, given that it was not preceded by a request, and, in any event, she emphasises that the TLR had to be submitted ‘immediately after the mission concerned’ with the result that, on that date, there was no way that she could correct her TLR, submitted on 23 June 2011.
80. In its defence, relying on the version of the Team Leader Guide which was in force at the time the mission to Baku took place, the Parliament contends that the applicant was under an obligation to record the problem encountered during the mission in her TLR, which she failed to do. The fact that she informed her Head of Unit orally that ‘the size of interpreters’ booths did not comply with the applicable EU standards’ did not, according to the Parliament, absolve the applicant from her obligation to report that breach of the working conditions in her TLR.
– Findings of the Tribunal
81. According to the Team Leader Guide which was in force at the time of the mission to Baku, ‘[t]he Director-General, the Directors and the Heads of Unit ... need to be made aware of any relevant details and specific problems arising on a particular mission’. That obligation to inform the administration of any difficulties encountered was laid down so that the administration could adopt measures to avoid the recurrence of those relevant details and specific problems in the future.
82. Given the wording and the objective of that internal rule, the appointing authority did not make a manifest error of assessment in considering that the issue faced by the team of which the applicant was the leader during the mission to Baku was a ‘relevant detail’ or a ‘specific problem’ for the purposes of that internal rule and that, as such, the incident should have been mentioned in the TLR, notwithstanding the fact that it had been possible to resolve it on the spot or that it could be regarded as a ‘technical issue’.
83. Furthermore, the appointing authority did not make a manifest error of assessment in considering that, despite the fact that the applicant had informed her Head of Unit orally of the working conditions which did not comply with the applicable EU technical standards, she was not absolved from her obligation to report the incident in question in her TLR, which was to be submitted to her Director-General.
84. It follows that, irrespective of the information provided orally, the applicant did not record that incident in writing in the TLR even though it was an infringement, on the ground, of Article 7(1) of the decision of the Secretary-General of the Parliament of 3 January 2006 establishing the Provisions Applicable to Permanent, Temporary and Auxiliary Interpreters of that institution. In so doing, the applicant showed that, at that time, she was unaware of the requirements of the version of the Team Leader Guide which was then in force.
85. Regarding the email of 27 June 2011, in which the Head of Unit asked the applicant if she had recorded the working conditions in her TLR, it is sufficient to state, without it being necessary to determine whether that email was a ‘reminder’ or whether the Head of Unit was aware that the applicant had already submitted her TLR without mentioning the incident in question, that, in any event, that email does not alter the fact that the applicant had not complied with the internal rule in question which recommended reporting any relevant details.
86. Lastly, regarding the applicant’s argument relating to her supposed lack of experience as a team leader and her request for training, and assuming that the argument is relevant, it is sufficient to observe that it is clear from the case-file that the applicant took on the role of team leader on several occasions and that, in addition, her Head of Unit did not reject any particular training request submitted by the applicant. Moreover, it is not the applicant’s ability to act as a team leader during a mission which is being called in question by the first contested remark, but rather her failure to comply with a clear rule appearing in the version of the Team Leader Guide which was then in force.
87. In those circumstances, it must be found that the first contested remark is not vitiated by any manifest errors of assessment.
Second contested remark
– Arguments of the parties
88. The applicant claims that the appointing authority’s decision to ask the reporting officers to delete the words ‘[e.g.] on training (emails [of 17, 18 and 19 May 2011])’ from the comment included under the heading ‘Conduct’ which recommended that the applicant ‘[s]hould improve [her] knowledge of rules’ has had the unexpected result of harming her still further: since there is now no reference to any specific event, the amended comment contested by the applicant appears to be of general application, thus giving the impression that she is unaware of the rules in general, and not only of the specific rule which was previously identified. For that reason, a comment of that kind, which, following the deletion of its last part, does not refer to any specific situation, is vitiated by a manifest error of assessment.
89. According to the Parliament, which contends that the complaint should be rejected, the fact that the applicant had not mentioned the breach of working conditions in the TLR was grounds for including not only the first part of the contested remark, but also the second, since that incident in 2011 showed the applicant’s lack of knowledge — or limited knowledge — of the internal rules.
– Findings of the Tribunal
90. Following the complaint submitted by the applicant, the appointing authority, in its decision of 29 January 2013 on that complaint, acknowledged that, in view of the evidence provided by the applicant, the initial comment formulated by the reporting officers was vitiated by an error of assessment. However, on the basis of that finding, the appointing authority considered that the error could be rectified simply by deleting the last part of the comment.
91. In that regard, the Tribunal finds that it is true that the version of the second contested remark which appears in the 2011 staff report, if read in isolation, includes a general assessment which could give the impression that it adversely affects the applicant more than the initial wording used prior to the appointing authority’s intervention, inasmuch as it seems that the applicant is now required to ‘improve’ her knowledge of all the relevant rules in order to meet the objectives assigned to her, in her work, by the appointing authority.
92. However, it cannot be held that, in so doing, the Parliament exceeded the limits of its wide margin of discretion in evaluating its officials’ performance. In the present case, given that, contrary to the requirements of the applicable internal rules, the applicant had not mentioned the breach of working conditions encountered during the mission to Baku in her TLR, the appointing authority did not make a manifest error of assessment in finding that she ‘[s]hould improve [her] knowledge of rules’.
93. The fact that, as amended, the second contested remark no longer implies that specific rules are involved is irrelevant in that regard since the applicant had indeed disregarded a rule, which showed her lack of awareness in that area. Nor does the applicant’s argument that her Head of Unit had not thought it necessary to ask her to report the incident at issue in the TLR and had thus herself disregarded such a rule absolve the applicant from her own disregard of that rule. Lastly, the mere fact that that disregard of the rules is also the subject of the first contested remark cannot prevent the Parliament from using it as the basis for a general comment, such as the second contested remark, which, moreover, is merely intended to encourage the applicant to ‘improve’ in the future.
94. In any event, the mere act of retaining the second contested remark without being able to provide examples of a disregard of — possibly more general or basic — rules other than that which is already the subject of the first contested remark as a basis for so doing does not allow the Tribunal to find that the Parliament made a manifest error in assessing the facts which is such as to justify the annulment of the 2011 staff report.
Third contested remark
– Arguments of the parties
95. According to the applicant, the third contested remark is unjustified since, as the Head of Unit had admitted at the Unit meeting held on 21 November 2011, everyone — including management — was responsible for the controversy surrounding the adoption of the minutes of the meeting of 23 May 2011. She claims that her email of 6 October 2011 was merely a reply to the Head of Unit’s email of 13 September 2011 in which the Head of Unit had sent all members of the Unit a list of the general principles applicable to drafting minutes for Unit meetings. She contests the Parliament’s argument that the issue of the minutes should have been considered closed following the Head of Unit’s email of 11 July 2011.
96. The applicant also submits that, as the request for amendments to be made to the minutes of the meeting of 23 May 2011 did not originate from her alone but also from three more of the eight persons present at that meeting, it was perfectly understandable that, rather than discuss the contents of the minutes with the Head of Unit, she preferred to inform all members of the Unit.
97. Lastly, regarding more specifically the moment when she discovered that it was for the Head of Unit to decide whether the comments made by her and her colleagues concerning the minutes of the meeting of 23 May 2011 were admissible, the applicant claims that it was only at the meeting of 24 October 2011 that the Director informed her that the Head of Unit’s decisions on minutes were final. In suggesting, in her email of 6 October 2011, that the comments included in the email of 4 July 2011 be attached to the minutes of the meeting of 23 May 2011, the applicant was merely suggesting a compromise, as the Director had advised at the meeting of 18 August 2011.
98. The Parliament contends that the complaint should be rejected.
– Findings of the Tribunal
99. It should be borne in mind that, according to settled case-law, it is not for the Tribunal to substitute its assessment for that of the persons responsible for appraising the work of the person under appraisal: the EU institutions have a wide discretion in the appraisal of the work of their officials. The value-judgments made of officials in the staff reports are thus not subject to judicial review, except as regards any formal irregularities, manifest errors invalidating the assessments made by the reporting officer, or any misuse of powers ( van Arum v Parliament, EU:F:2009:105, paragraph 62 and the case-law cited).
100. In that regard, it should be observed that the Head of Unit, when sending out the final version of the minutes of the meeting of 23 May 2011 on 11 July 2011, confirmed that it was for her to give the final decision on any amendments to be made to minutes of Unit meetings. She confirmed that stance in an email of 29 July 2011. In addition, in the same vein, on 13 September 2011 the Head of Unit sent all Unit staff a message indicating the general principles governing the drafting of minutes for Unit meetings, which states that ‘the [Head of Unit] may refuse to accept a correction which does not reflect what was said at the meeting’.
101. In those circumstances, the applicant’s argument that her email of 6 October 2011 including a new request concerning the minutes of the meeting of 23 May 2011 can be regarded as being a simple reply to the Head of Unit’s email of 13 September 2011 listing the general principles for drafting minutes for Unit meetings must be rejected: the Head of Unit’s email, which simply listed general principles, in no way calls in question the fact that the minutes of the meeting of 23 May 2011 had been finalised. The applicant should therefore have accepted that, as of 11 July 2011 or, in any event, 29 July 2011 at the latest, the issue of the minutes of the meeting of 23 May 2011 was settled.
102. It is also necessary to reject the applicant’s argument that it was appropriate for her to send her email of 6 October 2011 to her Unit colleagues. It is clear that the applicant, rather than seeking to launch a discussion regarding the general principles listed in the Head of Unit’s email of 13 September 2011, attempted to use that email as a means of reopening the — closed — debate and re-involving her Unit colleagues.
103. The fact that the applicant was led to believe, following the Head of Unit’s proposal at the meeting of 21 November 2011 that a fresh start be made, that management was also partly responsible for the controversy surrounding the drafting of the minutes for the meeting of 23 May 2011 in no way means that the 2011 staff report may not include a remark on the applicant’s attitude during the period in question. Indeed, it is clear from the case-file that the applicant was at the forefront of the repeated requests for amendments to be made to the minutes of the meeting of 23 May 2011 and for access to be given to the internal rules governing the drafting of minutes for Unit meetings.
104. Accordingly, even if it may be lawful for a member of staff to ask to be made aware of internal rules such as those mentioned in the preceding paragraph, the appointing authority did not make a manifest error of assessment in considering that the applicant had ‘[c]ontributed to a negative atmosphere in the [U]nit’ in view of the context in which the email exchanges between the applicant and the Head of Unit took place.
Fourth contested remark
– Arguments of the parties
105. The applicant contests the remark which was made in connection with the ‘passport episode’. In her view, the appointing authority unduly distorted the message set out in her email of 8 June 2011: by that email, she merely sought to explain that, even if she had not taken leave for the morning of 10 June 2011, she would not have been able to submit her passport in time, given that she was unable to recover it before the evening of Friday 10 June 2011. She also claims that it was never her intention to say that the issue of submitting her passport did not fall within the Head of Unit’s sphere of competence.
106. In addition, she observes that, during her meeting with the Head of Unit on 4 July 2011, it was decided to settle the episode amicably. In those circumstances, the fourth contested remark is both unjustified and vitiated by a manifest error of assessment.
107. The Parliament contends that the complaint should be rejected.
– Findings of the Tribunal
108. As a preliminary point, it should be stated that it is common ground that the fourth contested remark does not concern a note dated 20 September 2011, but rather a note dated 14 September 2011 headed ‘Your mission to Baku ...’. In that note, the Director reprimanded the applicant for having, by her conduct, impeded the process of organising the mission to Baku.
109. In that regard, it should be noted that, in her email of 8 June 2011, the applicant not only failed to inform the Head of Unit of the fact that, following a visit from her parents to her home in Strasbourg, she would be able to hand over her passport by 10 June 2011, but also gave the Head of Unit to understand that she would be unable to hand over the necessary documents and photos by that deadline. In those circumstances, the fourth contested remark appears to be justified.
110. Moreover, it should be noted that, in her third email of 8 June 2011, the applicant used words which were uncalled for and which, especially in view of the deadlines for organising the mission to Baku and her managerial role as team leader, were potenti al grounds for the reporting officers making a remark in that regard in the 2011 staff report. In that context, it is irrelevant that, in this action, the applicant claims not to have intended to say that the issue of submitting her passport did not fall within the Head of Unit’s sphere of competence.
111. Lastly, without it being necessary to determine whether the applicant and the Head of Unit actually managed to settle the ‘passport episode’ amicably at their meeting of 4 July 2011, it is sufficient to state that, in the present case, there was no reason for the applicant to expect the administration to refrain from using its wide discretion and thus from mentioning that episode in the 2011 staff report. Therefore, the appointing authority cannot be accused of having made any manifest error of assessment in that regard.
Fifth contested remark
– Arguments of the parties
112. The applicant challenges the fifth contested remark which states that she ‘[c]omplied with instructions only after a reminder (CCC[TB] glossary, reminder on 10 [November])’. She claims that the Head of Unit had not given her any specific deadline for updating the CCCTB glossary and, what is more, had not issued her with any reminders on the subject.
113. The Parliament contends that the complaint should be rejected, observing, in particular, that the updating of the glossary could have been completed on 5 September 2011 or shortly thereafter and that, despite the Head of Unit’s reminder of 10 November 2011, the applicant took three and a half months to complete that small but important task.
– Findings of the Tribunal
114. It should be noted that, on 31 August 2011, when the applicant agreed to update the CCCTB glossary, she expressed her willingness to ‘start working on [the glossary] immediately after the seminar [of 5 September 2011]’. In replying that of course the applicant ‘[could] start working on the glossary ... on [the afternoon of Monday 5 September 2011]’ it is clear that the Head of Unit in fact encouraged her to begin that work without delay.
115. Although it is true that the Head of Unit had not set a specific deadline for finishing updating the glossary, it can be seen from the email exchange between the Head of Unit and the applicant on that subject and from the fact that the glossary was supposed to be used for interpretation scheduled for Autumn 2011 that the Head of Unit was entitled to believe that the applicant was aware that the updating of the glossary had to be completed within a reasonable time after 5 September 2011 or, at the very least, immediately after the email of 10 November 2011.
116. In that regard, the email of 10 November 2011, in which the Head of Unit sought information from the applicant regarding the progress made on updating the glossary, must be regarded as a reminder intended to prevent the applicant from taking longer than strictly necessary over the task which she was supposed to complete as quickly as possible.
117. Consequently, the fifth contested remark retained by the appointing authority is not vitiated by a manifest error of assessment.
Sixth contested remark
– Arguments of the parties
118. As regards the first part of the sixth contested remark, concerning her alleged failure to communicate, the applicant claims that, in view of the harassment to which she had been subjected, she had no choice but to favour written communication, given that it was the only way of documenting events. In that regard, she observes in particular that she had numerous reasons not to trust her Head of Unit. In addition, the applicant claims that, even without the harassment, it cannot be assumed that personal meetings would have been any better or more efficient than written contact. Lastly, the Head of Unit only suggested that the applicant should contact her in the event of needing further explanations and did not raise the possibility of a personal meeting with the applicant on that point.
119. Regarding the second part of the sixth contested remark, concerning her alleged failure to be receptive to instructions, the applicant claims that it is unfounded. She emphasises that, before 7 October 2011, the Head of Unit had never ordered her not to return to the issue of the minutes of the meeting of 23 May 2011. After receiving instructions to that effect on 7 October 2011 and instructions from the Director at the meeting of 24 October 2011, she stopped discussing that issue.
120. The Parliament contends that the complaint should be rejected.
– Findings of the Tribunal
121. As a preliminary point, it should be stated that, since the issue of psychological harassment allegedly suffered by the applicant is not the subject of the present action, the Tribunal cannot — as the applicant seems to wish — criticise the sixth contested remark on the basis of allegations of psychological harassment to which the applicant may have been exposed. Accordingly, the Tribunal will confine itself, in the context of this complaint, to examining the question of whether the 2011 staff report is vitiated by a manifest error of assessment as regards the sixth contested remark.
122. In those circumstances, first, regarding the alleged failure to communicate for which the applicant is criticised, it should be noted that the applicant’s argument consists of contesting the idea that personal meetings must be favoured over email exchanges in managing conflicts or misunderstandings within a Unit.
123. However, it is sufficient to state on that subject that, in view of the margin of discretion which the appointing authority enjoys when organising its departments, it is not for the applicant or for the Tribunal to determine the method of communication which should be favoured between a Head of Unit and members of a Unit. In any event, the applicant is obliged to make herself available to meet with her superior when that person summons her to a meeting. However, it is clear from the case-file that this was not always the applicant’s attitude in 2011.
124. Next, regarding the alleged lack of receptiveness to instructions for which the applicant is criticised, it is necessary to reiterate what has already been stated in this judgment in the analysis of the first, third and fifth contested remarks, namely that, although she had been reminded of her obligations in the situations to which those remarks refer, the applicant did not always show sufficient willingness to accept the Head of Unit’s instructions in 2011.
125. In those circumstances, and given that the sixth contested remark merely expresses a wish for the applicant to ‘improve’ her communication and receptiveness to instructions, that remark is not vitiated by a manifest error of assessment.
Second plea in law, alleging a misuse of powers
Arguments of the parties
126. First, as part of the arguments which she puts forward to show that the first contested remark is vitiated by a manifest error of assessment, the applicant submits that the appointing authority made that comment — which relates to a breach of working conditions — with the (hidden) objective of downgrading her. Second, as part of the arguments which she puts forward to show that the fifth contested remark — which relates to a supposed need to issue her with reminders — is vitiated by a manifest error of assessment, the applicant considers that, in view of the harassment to which she is subject, that remark represents a misuse of powers.
127. The Parliament contends that the plea should be rejected.
Findings of the Tribunal
128. It should be borne in mind that, according to settled-case law, a decision may amount to a 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 ( CT
v EACEA, F‑36/13, EU:F:2013:190, paragraph 72).
129. In the present case, regarding the first and fifth contested remarks, the evidence provided by the applicant does not, in itself, permit the conclusion that the appointing authority’s decision to include and retain those two remarks in the 2011 staff report was a misuse of powers. In particular, the evidence does not permit the assertion that the appointing authority’s objective in drawing up the 2011 staff report was to ‘downgrade’ the applicant. In addition, it should be observed that, in so far as the applicant is invoking the harassment to which she was allegedly subject in 2011 in order to prove that there was a misuse of powers, first, the issue of her harassment is not the subject of the present action, and, second, in terms of their content, the contested remarks, taken individually in the context of the 2011 staff report, do not in any way cross the line into offensive or hurtful criticism of the actual person of the official in question (see, to that effect, N
v Parliament, F‑26/09, EU:F:2010:17, paragraph 86).
130. The second plea must therefore be rejected as unfounded and, accordingly, the action must be dismissed in its entirety.
Costs
131. Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
132. It can be seen from the grounds of this judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the Parliament has expressly requested that she be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant must bear her own costs and be ordered to pay the costs incurred by the Parliament.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders CW to bear her own costs and to pay the costs incurred by the European Parliament.