62017TJ0808
JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
3 December 2019 (
*1
)
(Civil service – Officials – Appraisal report – Lawfulness of appraisal procedures and appraisal appeal procedures – Requirement for the appeal assessor to be impartial)
In Case T‑808/17,
Ralph Pethke, residing in Alicante (Spain), represented by H. Tettenborn, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė, acting as Agent, and B. Wägenbaur, lawyer,
defendant,
APPLICATION under Article 270 TFEU seeking annulment of the applicant’s appraisal report for 2016 and, if necessary, annulment of the decision of the Management Board of EUIPO of 18 October 2017 rejecting the applicant’s complaint,
THE GENERAL COURT (Fourth Chamber),
composed, at the time of deliberation, of H. Kanninen, President, C. Iliopoulos and I. Reine (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
Legal framework
1
Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:
‘The ability, efficiency and conduct in the service of each official shall be the subject of an annual report as provided for by the appointing authority of each institution in accordance with Article 110. That report shall state whether or not the performance level of the official has been satisfactory. The appointing authority of each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before the lodging of a complaint as referred to in Article 90(2).
…
The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant.’
2
In order to implement Article 43 of the Staff Regulations, as amended with effect from 1 January 2014, the European Union Intellectual Property Office (EUIPO) has applied Commission Decision C(2013) 8985 of 16 December 2013 laying down general provisions for implementing Article 43 of the Staff Regulations and implementing the first paragraph of Article 44 of the Staff Regulations (‘GIP 43’) since 1 October 2014.
3
Article 3 of GIP 43, headed ‘Respective roles and rank’, provides:
‘1.   The reporting officer shall be the jobholder’s direct superior and, as a general rule, the jobholder’s head of unit on 1 December of the reporting period.
…
2.   The appeal assessor shall be the direct superior of the reporting officer at the time of the superior’s first intervention in the appraisal procedure as laid down in Article 6.
… If the Director-General is the reporting officer, the appeal assessor shall be the Director-General of the Directorate-General responsible for human resources. …
A jobholder who has provided information under Article 22a(1) and (2) of the Staff Regulations may, at the time of his reasoned refusal to accept the report, as provided for in Article 7(1), request that the Director-General of the Directorate-General responsible for human resources or the Secretary-General act as appeal assessor.
3.   In exceptional cases, justified by the desire to act in the interests of the jobholder or in the event of a change in the organisation chart of a service or Directorate-General, the Director-General may derogate from paragraphs 1 and 2 above to take account of the specific context arising from the circumstances or the change respectively.
…’
4
Article 7 of GIP 43 governs the appeal procedure as follows:
‘1.   The jobholder’s reasoned refusal … shall automatically mean referral of the matter to the appeal assessor. …
2.   Upon a request by the jobholder expressed in his reasoned refusal to accept the report, the appeal assessor shall hold a dialogue with the jobholder within ten working days of the date of the reasoned refusal. The jobholder may arrange for another jobholder, other than the reporting officer, to assist him during the dialogue. The appeal assessor may ask another jobholder, other than the reporting officer, to assist him at the dialogue.
3.   Within 20 working days of the date of the reasoned refusal to accept the report and following the dialogue provided for in paragraph 2, the appeal assessor shall confirm the report or amend it, giving reasons.
…
The decision of the appeal assessor may not be based on facts which the jobholder has not yet had an opportunity to comment upon in the course of the appraisal or the appeal procedure, unless he is given an opportunity to do so by the appeal assessor in good time.
4.   The report shall become final by decision of the appeal assessor. …’
5
Annex I to GIP 43 governs special cases. In accordance with point 2 of that annex, if, during the reporting period but not less than four months after the period covered by the previous report or by the previous contribution included in the report, the jobholder is moved or transferred to another post within the Commission or seconded under the terms of Article 37(a) of the Staff Regulations, his immediate superior is to draw up a contribution on the jobholder’s performance, which will be incorporated in the report.
6
Following the adoption of GIP 43, EUIPO adopted the instructions concerning appraisals of EUIPO officials and agents in a document entitled ‘Work Instruction: Appraisals at EUIPO’ (‘the EUIPO Work Instruction’). As regards Article 3 of GIP 43, the EUIPO Work Instruction provides that, if the Executive Director acts as reporting officer, the appeal assessor is to be a committee composed of the Deputy Executive Director, the Director of the Human Resources Department and the Director of the Department in charge of Legal Affairs.
Background to the dispute
7
The applicant, Mr Ralph Pethke, a lawyer by training, entered into the service of EUIPO in 2000 as a member of the temporary staff. In 2002, he was appointed as a permanent official in category AD (Administrator).
8
In 2006, the applicant successfully completed a managerial selection procedure to become a head of unit. Consequently, he was assigned to the post of head of unit in a trade mark service.
9
In May 2011, the applicant, who had in the meantime been promoted to grade AD 11, was reassigned to the post of Deputy Director of the International Cooperation and Legal Affairs Department. In October 2012, he was reassigned to the post of Director of the Personnel and Finance Department.
10
In October 2014, the applicant was reassigned to the post of Director of the Operations Department. His immediate superior was the Executive Director of EUIPO.
11
In the applicant’s 2014 appraisal report, it is concluded that, overall, the applicant’s ability, efficiency and conduct in the service corresponded to the level required for the post occupied. His 2015 appraisal report concluded that, overall, the applicant’s ability, efficiency and conduct in the service were above the levels required for the post occupied. Nevertheless, the applicant maintained that the scale of the successes achieved in the context of EUIPO’s reorganisation in 2014 and 2015 had not been properly appreciated and refused to countersign those reports, but did not, however, make a complaint.
12
By decision of 17 October 2016, the Executive Director of EUIPO reassigned the applicant, who was at that time the Director of the Operations Department, to the Observatory Department of EUIPO, as a senior legal expert, keeping him at the second step of grade 12 within the same function group. An action for annulment of that decision was brought before the General Court and was dismissed by judgment of 5 March 2019, Pethke v EUIPO (T‑169/17, not published, under appeal, EU:T:2019:135).
13
On 8 March 2017, the Director of the Observatory Department of EUIPO (‘the reporting officer’), who had become the applicant’s immediate superior with effect from 17 October 2016, held the annual appraisal interview for 2016 with the applicant.
14
On 9 March 2017, the reporting officer signed the applicant’s appraisal report for the year 2016 (‘the 2016 appraisal report’). It is apparent from that report that, with regard the period from 1 January to 16 October 2016, the reporting officer also consulted the Executive Director of EUIPO, who was the applicant’s immediate superior during that period (‘the former immediate superior’). The latter made his written contribution, and this was incorporated into the 2016 appraisal report in accordance with point 2 of Annex I to GIP 43.
15
The 2016 appraisal report concludes that ‘overall, the [applicant’s] efficiency, … abilities and the aspects of [his] conduct appraised correspond to the level required for the post occupied’.
16
More specifically, in the ‘Competencies’ section, the reporting officer based his assessment of the applicant entirely on the contribution written by the applicant’s former immediate superior. Moreover, in the section ‘Reporting officer’s assessment’, it is mentioned at the outset that the applicant had been reassigned to the Observatory Department only with effect from mid-October 2016. The reporting officer then makes reference to the assessment of the applicant for the first nine months of 2016, which was made by his immediate superior at that time, namely the Executive Director of EUIPO. That assessment reads as follows:
‘… [The applicant’s] performance at [the Operations Department] has been lower in terms of results and loss of productivity especially in the [oppositions] area, but also due to a lack of transparency in terms of measurement of performance and a partial and incomplete communication of the results to [the Executive Director]. His conduct is also criticised as he did not share critical information in an appropriate manner.
As [Operations Department] Director, [the applicant] has not taken the necessary measures to tackle the situation, which put the Office in a complex situation in terms of backlogs and has led his [former immediate superior] to lose confidence towards him as a Director. If [the applicant] has the required skills and competences for a managerial position, however, in 2016, he did not show himself capable of taking the right steps to manage the exceptional situation.
During the appraisal interview (the president of the staff committee was present), [the applicant] contested a number of facts, findings and figures of production included in [the Executive Director’s] assessment. The only unsatisfactory element agreed by [the applicant] [was] timeliness for [opposition] decisions.’
17
Lastly, in the same section, ‘Reporting officer’s assessment’, the reporting officer responds to the applicant’s criticism concerning his position in the Observatory Department. In that regard, he states that that department had been pleased about the applicant joining it, in view of his extensive experience and competence in the field of intellectual property. It is also observed that the applicant was rapidly allocated important tasks, with his agreement, and that his performance was good.
18
On 16 March 2017, the applicant appealed against the 2016 appraisal report and asked to have a discussion with the appeal assessor, namely the Executive Director of EUIPO, who is his former immediate superior. That discussion took place on 27 March 2017.
19
By email of the same date, the Executive Director of EUIPO, in his capacity as appeal assessor, requested the applicant to provide his reasons for appealing against the 2016 appraisal report, in writing, by 30 March 2017, so that they could be taken into account for the purposes of finalising that report.
20
By email of 30 March 2017, the applicant submitted his additional comments on the 2016 appraisal report to the appeal assessor. In particular, the applicant alleged infringement of the rules of the appraisal procedure. In that regard, he submitted, first, that the Executive Director of EUIPO, as the appeal assessor, did not have the right to refuse to complete the oral dispute settlement process established by the Commission and the Management Board of EUIPO in the context of the internal appeal against the appraisal report. Secondly, he observed that the reporting officer had not provided a personal assessment for a significant part of the period covered by the 2016 appraisal report.
21
The applicant’s comments also concerned the ‘Competencies’ section of the report, since the points made therein were, according to him, unjustified. In that regard, the applicant noted that the shortcomings relating to ‘prioritisation and organisation’, ‘resilience’ and ‘working with others’ were mentioned without any specific details being provided. As regards ‘quality and results’, the applicant stated that, in the third quarter of 2016, quality had reached the level of ‘compliance’ or ‘excellence’. As for results, the applicant stated that the delays in the adoption of opposition and cancellation decisions were the result of the transfer of 15% of the experienced staff to EUIPO’s other services in 2014 and 2015, despite the repeated warnings from both the applicant and his colleagues about the consequences of such a reduction in the workforce.
22
In conclusion, the applicant requested, first, that all references in the 2016 appraisal report to the contribution of his former immediate superior be deleted, secondly, that that contribution be removed in full and that an explanation be added to the effect that the contribution had been removed in the light of the result of the appeal process, and, thirdly, that the reporting officer be required to make his own, unbiased assessment.
23
By email of 30 March 2017, the appeal assessor informed the applicant that the discussion on the appeal was complete and that it would be taken into consideration along with the additional comments submitted by the applicant in his email of 30 March 2017. As regards the applicant’s request for the deletion from the 2016 appraisal report of all references to the assessment made by his former immediate superior concerning the period from 1 January to 16 October 2016, the former immediate superior explained that, in accordance with point 2 of Annex I to GIP 43 and with the EUIPO Work Instruction, the previous reporting officer’s contribution concerning the staff member’s performance was a part of the report, and that the current reporting officer had to take that contribution into account in his appraisal of that staff member.
24
By decision of 10 April 2017, the Executive Director of EUIPO, as the appeal assessor, confirmed the 2016 appraisal report drawn up by the reporting officer. He concluded that there were no reasons which would justify changing the reporting officer’s general assessment that ‘overall, the [applicant’s] efficiency, … abilities and the aspects of [his] conduct appraised correspond[ed] to the level required for the post occupied’.
25
In that regard, the Executive Director of EUIPO, as the appeal assessor, stated first that the assessment of the applicant could legitimately be based on the results of the staff survey carried out in January 2016, since the results were available in February 2016, the applicant was the Director of the Operations Department at that time and therefore the results relating to the objective to develop staff engagement were relevant. He then asserted that, despite the staff departures in that department, 20 additional staff members joined the department between January and September 2016. As regards productivity, he noted that that department had accumulated a backlog in opposition decisions. Lastly, he criticised the applicant’s communication of the figures relating to the performance and results of the Operations Department.
26
On 19 June 2017, the applicant lodged a complaint, as provided for in Article 90(2) of the Staff Regulations, with the Management Board of EUIPO, in its capacity as appointing authority, against the 2016 appraisal report and the decision of the appeal assessor of 10 April 2017. The arguments put forward in support of the complaint were based, first, on an infringement of essential procedural requirements and, secondly, on a manifest error of assessment leading to the distortion of the facts. More specifically, as regards the infringement of essential procedural requirements, the applicant claimed that there had been two infringements of the appraisal procedure rules, as previously alleged in his additional comments on the 2016 appraisal report, in so far as, first, the reporting officer had explicitly refused to assess the appraisal carried out by the former immediate superior for the period from 1 January to 16 October 2016 and, secondly, in the context of appeal before him, the appeal assessor had terminated the discussion early. Moreover, he claimed that EUIPO had failed to carry out an independent review of his 2016 appraisal due to the fact that his appeal assessor had been his immediate superior that year and had played a decisive role in writing his 2016 appraisal report, which is contrary to the procedure provided for in the EUIPO Work Instruction. He also maintained that the appeal assessor had rejected many of his criticisms of the 2016 appraisal report without reason.
27
By decision of 18 October 2017, the Management Board of EUIPO rejected the applicant’s complaint lodged under Article 90(2) of the Staff Regulations as unfounded (‘the decision rejecting the complaint’). As regards the applicant’s allegation that there had been no independent review of the 2016 appraisal report, the Management Board of EUIPO concluded that the EUIPO Work Instruction relied on by the applicant was not relevant because it provides for a situation in which the former immediate superior acts as the reporting officer, which is not the case here. The Management Board also stated that the applicable rules did not provide that the appeal assessor must carry out an independent review, as he is the direct superior of the reporting officer, and is thus also the superior of the applicant, albeit indirectly. It added that the applicant had disputed, above all, the general assessment on page 3 of the 2016 appraisal report, according to which, overall, the applicant’s ability, efficiency and conduct in the service corresponded to the level required for the post occupied. In that regard, the Management Board recalled that that general assessment was made freely and independently by the reporting officer, and not by the applicant’s former immediate superior.
Procedure and forms of order sought
28
By application lodged at the Court Registry on 11 December 2017, the applicant brought the present action.
29
EUIPO lodged its defence on 27 February 2018.
30
By decision of 8 March 2018, the President of the Fourth Chamber requested the applicant to lodge his reply, focusing on EUIPO’s assertion, in paragraph 121 of the defence, that the plea alleging a manifest error of assessment was inadmissible in part. The applicant lodged his reply on 16 April 2018, also stating his views on substance of the action. EUIPO lodged the rejoinder on 28 May 2018.
31
Acting on a proposal from the Judge-Rapporteur, the Court (Fourth Chamber) decided to put questions to the parties in the context of measures of organisation of procedure. After answering those questions within the prescribed period, the parties were requested by the Court to submit any observations on those answers. The parties submitted their observations within the prescribed period. Following the applicant’s observations of 1 April 2019, the Court adopted a new measure of organisation of procedure by asking the applicant an additional question. In the light of the answer provided by the applicant on 2 May 2019, the Court invited EUIPO to submit its observations on the answers provided by the applicant both in his observations of 1 April 2019 and in those of 2 May 2019.
32
On a proposal from the Judge-Rapporteur, the Court (Fourth Chamber) decided to rule on the action without an oral part of the procedure.
33
The applicant claims that the Court should:
–
annul the version of the 2016 appraisal report that was notified to him on 10 April 2017;
–
in so far as necessary, annul the decision rejecting the complaint;
–
order EUIPO to pay the costs.
34
EUIPO contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
Law
35
In support of the action, the applicant raises six pleas in law alleging, first, that his reporting officer did not personally assess his performance data for the period from 1 January to 16 October 2016, secondly, that the appeal assessor lacked competence, thirdly, that the appeal assessor was not independent, fourthly, arbitrary termination of the dialogue in the context of the procedure before the appeal assessor, fifthly, failure to state reasons in the decision confirming the 2016 appraisal report and in the decision rejecting the complaint, and sixthly, a manifest error of assessment in that his 2016 appraisal report is based on incomplete and arbitrarily selected performance data. In the reply, in response to paragraph 12 of the defence, he claims that it was unlawful for the contribution to the annual appraisal for the period from 1 January to 16 October 2016 to have been written by a representative of the Executive Director of EUIPO and not by the Executive Director himself. Lastly, in his observations of 1 April 2019 on EUIPO’s response to the measures of organisation of procedure, the applicant also complains that Version 6.7 (of 19 December 2016) of the EUIPO Work Instruction concerning the implementing rules for Article 43 and Article 44(1) of the Staff Regulations was unlawfully applied to him retroactively.
36
In response to a question from the Court in the context of the measures of organisation of procedure, the applicant clarified, in particular, the scope of the third plea, alleging the appeal assessor’s lack of independence, confirming that it had to be understood as alleging, in essence, the lack of impartiality on the part of the assessor. Therefore, the third plea seeks, in essence, to question the impartiality of the appeal assessor and should be examined first.
37
The applicant claims, in essence, that his former immediate superior could not be an impartial appeal assessor in his appraisal procedure for 2016 because he had already played a decisive role in writing his appraisal report for that year. He submits that such an approach constitutes an infringement of Article 3 of GIP 43 and of the EUIPO Work Instruction and has prevented an independent review of the contribution made by his former immediate superior, thus hindering the potential for a better assessment and an appropriate final grade. According to the applicant, it is clear from the EUIPO Work Instruction that complaints made against appraisals carried out by the Executive Director must be decided on by an appeal committee.
38
EUIPO disputes the applicant’s arguments. It contends that the EUIPO Work Instruction relied on by the applicant is not relevant because it provides for a situation in which the Executive Director acts as the reporting officer, which is not the case here. EUIPO also states that the applicable rules do not provide that the appeal assessor must carry out an independent review, as he is the direct superior of the reporting officer, and is thus also the superior of the applicant, albeit indirectly.
Preliminary observations on the scope of judicial review
39
It should be noted that, according to well-established case-law on the appraisal procedure for officials, reporting officers have the widest discretion when judging the work of persons upon whom they must report and it is not for the courts to interfere with their assessments or review the validity thereof, save in the case of error or manifest exaggeration (see, to that effect, judgments of 21 October 1992, Maurissen v Court of Auditors, T‑23/91, EU:T:1992:106, paragraph 40, and of 4 May 2005, Schmit v Commission, T‑144/03, EU:T:2005:158, paragraph 70 and the case-law cited). Indeed, review by the Courts of the content of appraisal reports is limited to ensuring that the procedure has been conducted in a lawful manner, the facts are materially correct and there is no manifest error of assessment or misuse of powers (see, to that effect, judgment of 26 October 1994, Marcato v Commission, T‑18/93, EU:T:1994:255, paragraph 45).
40
As regards that review of the lawfulness of the procedure, the Court of Justice and the General Court have generally held that, in cases where an EU institution has discretion, compliance with the procedural guarantees conferred by the EU legal order is of even more fundamental importance (see, to that effect, judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14; of 6 November 2008, Netherlands v Commission, C‑405/07 P, EU:C:2008:613, paragraphs 56 and 57; and of 9 November 1995, France-Aviation v Commission, T‑346/94, EU:T:1995:187, paragraphs 32 to 34). Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98, T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 404).
41
It must be concluded from the above that the particularly wide discretion enjoyed by the reporting officers for the purpose of the appraisal of officials must be counterbalanced by especially strict compliance with the rules governing the organisation of the appraisal and the conduct of the procedure laid down to that end (see, to that effect and by analogy, judgments of 24 September 2002, Girardot v Commission, T‑92/01, EU:T:2002:220, paragraph 24, and of 5 April 2005, Christensen v Commission, T‑336/02, EU:T:2005:115, paragraph 38).
Preliminary observations on the duty of impartiality incumbent on officials
42
It should be noted that the duty of impartiality incumbent on officials is enshrined in the first paragraph of Article 11 of the Staff Regulations, under which an official is to carry out the duties assigned to him objectively and impartially.
43
It must also be noted that the institutions, bodies, offices and agencies of the European Union are required to respect the fundamental rights guaranteed by EU law, which include the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 154).
44
Article 41(1) of the Charter of Fundamental Rights provides, inter alia, that every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union.
45
In that regard, it should be noted that the requirement for impartiality, which applies to the institutions, bodies, offices and agencies in carrying out their missions, is intended to guarantee equality of treatment, which is at the heart of the European Union. That requirement is intended, inter alia, to avoid a situation where there could be a conflict of interest with regard to officials or agents acting on behalf of those institutions, bodies, offices and agencies. Having regard to the fundamental importance of ensuring the independence and probity of EU institutions, bodies, offices and agencies as regards both their internal functioning and external reputation, the requirement of impartiality covers all circumstances in which an official or agent who is called upon to decide on an issue must reasonably consider that issue as being of such a nature as to be viewed by third parties as a possible source of impairment of his or her independence in that matter (see, to that effect, judgment of 25 October 2007, Komninou and Others v Commission, C‑167/06 P, not published, EU:C:2007:633, paragraph 57).
46
It is also incumbent upon those institutions, bodies, offices and agencies to comply with both components of the requirement of impartiality, which are, first, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice, and second, objective impartiality, under which there must be sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of the institution concerned (see, to that effect, judgment of 20 December 2017, Spain v Council, C‑521/15, EU:C:2017:982, paragraph 91 and the case-law cited).
47
It is in the light of the foregoing observations that it is necessary to examine the substance of the plea alleging, in essence, the appeal assessor’s lack of impartiality.
The substance of the plea alleging, in essence, the appeal assessor’s lack of impartiality
48
In the present case, first, the Director of the Observatory Department, who was the applicant’s immediate superior with effect from 17 October 2016, consulted the applicant’s former immediate superior regarding the period from 1 January to 16 October 2016, which is three quarters of the appraisal period in question (see paragraph 14 above). Secondly, the contribution made by the former immediate superior was incorporated, unaltered, into the 2016 appraisal report (see paragraph 14 above). Thirdly, it was the applicant’s immediate superior with effect from 17 October 2016 who signed the 2016 appraisal report as reporting officer (see paragraphs 13 and 14 above).
49
Moreover, in his comments on the 2016 appraisal report, the applicant primarily criticised the ‘Competencies’ section of the 2016 appraisal report (see paragraph 21 above), which was based entirely on the contribution of his former immediate superior regarding the period from 1 January to 16 October 2016, and which was also reproduced in the ‘Reporting officer’s assessment’ section, of which it forms the most substantial part (see paragraph 16 above).
50
Lastly, in the context of the procedure before the appeal assessor, the 2016 appraisal report was reviewed by the applicant’s former immediate superior as appeal assessor, who, having examined the applicant’s criticisms, set out in paragraph 49 above, concerning the contribution of the former immediate superior, concluded that there were no reasons which justified changing the reporting officer’s ‘general assessment’ (see paragraph 24 above).
51
In that regard, the Court of Justice has ruled that an internal appeal procedure against an appraisal report can contribute to the objectivity of the appraisal and prevent recourse being had to legal proceedings only if it offers the staff member who challenges his or her appraisal report the assurance that a genuine review will be carried out (judgment of 3 April 2019, CJ v ECDC, C‑139/18 P, not published, EU:C:2019:281, paragraph 44).
52
However, that is not the case here, where the appeal assessor, who is the applicant’s former immediate superior and whose contribution was incorporated into the official’s 2016 appraisal report, was called upon to review the general assessment of the applicant on the basis of observations made by the latter, which, in essence, consisted of criticisms of the appeal assessor’s own contribution, which formed a substantial part of the reporting officer’s assessment.
53
Thus, the internal appeal procedure as implemented in the specific circumstances of this case cannot offer sufficient guarantees to exclude any legitimate doubt as to the impartiality of the appeal assessor.
54
In those circumstances, the fact, relied on by EUIPO, that it was not the former immediate superior who had made the general assessment of the applicant and that it was not he who ticked, from among the alternatives on page 3 of the 2016 appraisal report, the box to indicate that ‘overall, the [applicant’s] efficiency, … abilities and the aspects of [his] conduct appraised correspond[ed] to the level required for the post occupied’ is not relevant. Those circumstances do not call into question the fact that, when reviewing the general assessment of the applicant, the appeal assessor was called upon to take a position on the applicant’s criticisms made solely in relation to aspects of the contribution which the appeal assessor himself had made to the 2016 appraisal report as the applicant’s former immediate superior, and to which he was referred by the reporting officer.
55
The other arguments put forward by EUIPO cannot invalidate the conclusion reached in paragraph 53 above.
56
In the first place, EUIPO states that the appeal assessor carries out his or her duties as a person who knows the staff member to be appraised and, in that capacity, reviews the assessment made by the reporting officer, which necessarily contains subjective elements.
57
It is true that, according to case-law, reporting officers cannot be considered to be partial or lacking in objectivity merely because, in their capacity as immediate superiors, they are responsible for the work of officials placed under their authority and, consequently, are involved in the work of those officials, particularly since it is only that involvement which enables them to make the best possible assessment of the activities of the persons working under them (judgment of 13 July 2006, Andrieu v Commission, T‑285/04, EU:T:2006:215, paragraph 68).
58
However, there is nothing in the case file to indicate that the applicant objects to the involvement of his former immediate superior in the appeal procedure per se. The applicant criticises his involvement in the appeal procedure for a specific reason, namely that, as his immediate superior for three quarters of the period in question, he played a decisive role in the drafting of the 2016 appraisal report, and then made a decision on that report as the appeal assessor in the light of the applicant’s observations on aspects of his own contribution to the report.
59
In the second place, EUIPO’s argument that the general assessment of the applicant is not in any way negative, since it is in line with what is expected of all members of staff, is, in any event, the subjective view of EUIPO, and not of the applicant himself. In that regard, it is sufficient to note, first, that the general assessment of the applicant for 2016 was not the best of all the available options on the appraisal sheet. Secondly, the general assessment of the applicant for 2016 was not as good as his 2015 assessment (see paragraph 11 above). Thirdly, the applicant refused to countersign the appraisal reports for s2014 and 2015, although his general assessments were identical or better than that which he received in the 2016 appraisal report (see paragraph 11 above).
60
Moreover, even if the general assessment of the applicant for 2016 were considered not to be negative in any way, it must be noted that the applicant disputes the competence and impartiality of his former immediate superior, as appeal assessor, to review not only the general assessment in the 2016 appraisal report but also the remarks made therein.
61
The remarks made in the 2016 appraisal report cannot be regarded as not being negative in any way. Indeed, those remarks are based almost entirely on the assessment made by the applicant’s former immediate superior concerning the first nine months of 2016, which contained the following criticisms of the applicant. First, the applicant was criticised for his performance in the Operations Department in terms of results and lower productivity in the area of oppositions, and as regards a lack of transparency in the measurement of performance and the partial and incomplete communication of results to the Executive Director. Secondly, he was criticised for not having taken the necessary measures to tackle the situation, which put EUIPO in a complex situation in terms of backlogs and led his former immediate superior to lose confidence in the applicant as director. Thirdly, it was stated that, if the applicant had the required skills and competences required for a managerial position, he had not, in 2016, proven himself capable of taking the right steps to manage an exceptional situation.
62
In the third place, EUIPO states that the provisions in the EUIPO Work Instruction according to which an appeal committee is to decide on complaints against appraisals conducted by the Executive Director are not relevant in this case.
63
As pointed out by EUIPO, the Executive Director was not the applicant’s reporting officer in 2016 and it was therefore unnecessary to use an appeal committee to review the 2016 appraisal report, in accordance with Article 3 of GIP 43. Moreover, as stated by EUIPO, the EUIPO Work Instruction does not provide for any specific exception governing a situation where a staff member who has been the immediate superior of the jobholder in the period concerned becomes the appeal assessor, either through internal transfer or promotion.
64
However, as the applicant rightly notes, the fact remains that Article 3(3) of GIP 43 provides that the Director-General – in the case of EUIPO, its Executive Director – may, acting in the interests of the jobholder, derogate from the procedure provided in principle to take account of the specific context arising from the circumstances. The obligation of impartiality constitutes a fundamental guarantee which is required in order to prevent the applicant’s right to a genuine review of his appraisal report being rendered meaningless or deprived of its effectiveness, in accordance with the case-law referred to in paragraph 51 above. Accordingly, the obligation to ensure the impartiality of the internal appeal procedure justified a derogation, in the present case, from the provisions governing the appeal procedure set out in the EUIPO Work Instruction.
65
In the light of all the foregoing, the plea alleging, in essence, the appeal assessor’s lack of impartiality should be upheld. That conclusion alone justifies the annulment of the 2016 appraisal report in so far as it was unlawful and, had this not been the case, its content might have been different. In those circumstances, there is no longer any need to rule on the other arguments and pleas raised by the applicant in the present action.
66
As regards the application to annul, in so far as necessary, the decision rejecting the applicant’s complaint, it must be noted that, in the present case, it was not until that decision was adopted that there was a detailed examination of the applicant’s arguments relating to compliance with the procedural guarantees offered by the internal appeal procedure against the 2016 appraisal report, which are reproduced, in essence, in the third plea in particular. It follows that the decision rejecting the complaint should also be annulled in this case.
Costs
67
Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
68
In the present case, since EUIPO has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fourth Chamber),
hereby:
1.
Annuls the appraisal report for 2016 of Mr Ralph Pethke and the decision of the Management Board of the European Union Intellectual Property Office (EUIPO) of 18 October 2017 rejecting the complaint made by Mr Pethke;
2.
Orders EUIPO to bear its own costs and to pay those incurred by Mr Pethke.
Kanninen
Iliopoulos
Reine
Delivered in open court in Luxembourg on 3 December 2019.
[Signatures]
Table of contents
Legal framework
Background to the dispute
Procedure and forms of order sought
Law
Preliminary observations on the scope of judicial review
Preliminary observations on the duty of impartiality incumbent on officials
The substance of the plea alleging, in essence, the appeal assessor’s lack of impartiality
Costs
(
*1
)	Language of the case: German.