62015FJ0048_SUM
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Single Judge)
18 July 2016
Case F‑48/15
SD
v
European Union Intellectual Property Office (EUIPO)
(Civil service — Officials — Reports procedure — 2013 appraisal exercise — Appraisal report — Manifest error of assessment — Recovery plan — Acts adversely affecting an official — Admissibility)
Application:
under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which SD essentially seeks annulment, first, of her appraisal report for the period from 1 January to 31 December 2013 and, secondly, of the ‘recovery plan’ adopted on the basis of that report, together with an order for the European Union Intellectual Property Office (EUIPO or ‘the Office’) to pay her, as compensation for the non-material damage she claims to have suffered, damages of an appropriate amount assessed, subject to any increase or decrease during the proceedings, at EUR 10000.
Held:
The action is dismissed. SD shall bear her own costs and is ordered to pay the costs incurred by the European Intellectual Property Office.
Summary
Officials — Reports procedure — Appraisal report — Discretion of reporting officers — Judicial review — Limits — Manifest error of assessment — Meaning
(Staff Regulations, Art. 43)
Actions brought by officials — Acts adversely affecting an official — Meaning — Recovery plan intended to improve performance at work, drawn up in conjunction with the appraisal report — Not included
(Staff Regulations, Art. 90(2) and 91(1))
In assessing merits, reporting officers have a very wide discretion and accordingly, the review carried out by the EU courts must be limited to verifying that there has been no error of fact, manifest error of assessment or misuse of powers.
In particular, an error may only be said to be manifest where it may easily be detected in the light of the criteria to which the legislature intended the exercise of decision-making powers to be subject. Consequently, the evidence, which it is for the applicant to adduce, must be sufficient to show that the factual assessments made in the contested appraisal report are entirely lacking in plausibility. In other words, a 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.
(see paras 35, 36)
See:
Judgments of 10 November 2009 in N v Parliament, F‑93/08, EU:F:2009:151, para. 58, and 18 March 2015 in Rajala v OHIM, F‑24/14, EU:F:2015:10, paras 41 to 43 and the case-law cited
A measure such as a recovery plan to improve performance at work, drawn up in conjunction with the appraisal report, is, by virtue of its content and purpose, not a independent measure which is severable from the evaluation of the merits of the official concerned, except where it is proved that it was adopted in order to achieve some purpose other than improving the official’s performance at work, by so affecting the rights of the official or his position under the Staff Regulations.
Accordingly, the Tribunal having found that the appraisal report is not vitiated by illegality, a recovery plan drawn up in conjunction with that report cannot be characterised, in itself, as an act adversely affecting the official and, consequently cannot be the subject either of a complaint or an action for annulment.
(see paras 57, 58, 61)
See:
Judgment of 3 December 2015 in Sesma Merino v OHIM, T‑127/14 P, EU:T:2015:927, para. 35