62007CJ0198_EN
Parties
Grounds
Operative part
Parties
In Case C‑198/07 P,
APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 6 April 2007,
Donal Gordon,
former official of the Commission of the European Communities, residing in Brussels (Belgium), represented by J. Sambon, P.‑P. Van Gehuchten and P. Reyniers, avocats,
appellant,
the other party to the proceedings being:
Commission of the European Communities,
represented by J. Currall and H. Krämer, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Fourth Chamber),
composed of K. Lenaerts, President of the Chamber, R. Silva de Lapuerta, E. Juhász (Rapporteur), G. Arestis and J. Malenovský, Judges,
Advocate General: Y. Bot,
Registrar: R. Grass,
after hearing the Opinion of the Advocate General at the sitting on 16 October 2008,
gives the following
Judgment
Grounds
1. By his appeal, Mr Gordon asks the Court to set aside the judgment of the Court of First Instance of the European Communities of 7 February 2007 in Case T‑175/04 Gordon
v Commission
[2007] ECR II‑0000 (‘the judgment under appeal’) by which the Court of First Instance (i) held that there was no longer any need to rule on the appellant’s application for annulment of the decision of the Commission of the European Communities of 11 December 2003 (‘the contested decision’) rejecting his complaint against the decision of 28 April 2003 confirming his career development report (‘CDR’) for the period from 1 July 2001 to 31 December 2002, on the grounds of a lack of interest in bringing proceedings; and (ii) rejected as inadmissible his action for compensation for the damage he had suffered.
Legal context
The provisions relating to the appraisal of officials
2. Article 43 of the Staff Regulations of Officials of the European Communities, in the version applicable at the material time (‘the Staff Regulations’), provides that the ability, efficiency and conduct in the service of each official, with the exception of those in grades A 1 and A 2, are to be the subject of a periodical report made at least once every two years as provided for by each institution in accordance with Article 110 of the Staff Regulations.
3. On 26 April 2002, the Commission adopted a decision on general provisions for implementing Article 43 of the Staff Regulations (‘the general implementing provisions’) and a decision on general provisions for implementing Article 45 of the Staff Regulations. This introduced a new system of reporting. In consequence of the transitional rule set out in Article 4(1) of those provisions, the first reporting period under the new system ran from 1 July 2001 to 31 December 2002.
4. Under Article 5(3) of the general provisions for implementing Article 45 of the Staff Regulations, an official is, in principle, promoted when the total of (i) his merit points generated by the CDR marking and (ii) the priority points awarded in accordance with Articles 6, 7 and 9 of those provisions accumulated in the course of one or more exercises exceeds the ‘promotion threshold’.
5. The appraisal procedure for officials, the drawing up of the CDR and disputes about the CDR are governed principally by Articles 7 and 8 of the general implementing provisions.
6. Article 7(2) of those provisions states that ‘[t]he reporting officer shall meet the jobholder formally after the end of the reporting year to examine his performance, demonstrated competency and conduct as well as to discuss learning needs and future career development. … This formal annual dialogue is a fundamental management duty on the part of the reporting officer’.
7. According to Article 7(5) of those provisions, ‘… where the jobholder is dissatisfied with the content of the report, he shall immediately inform the reporting officer and indicate in the section on “comments” his wish to hold a dialogue with the countersigning officer explaining the reasons for such a request. Within five working days, the countersigning officer shall hold a dialogue designed to reach an agreement with the jobholder and shall then either amend the report or confirm it and transmits it once more to the jobholder. Within five working days the latter shall sign/visa it for acceptance and forward it to the reporting officer who shall sign/visa it without delay …’.
8. Article 7(6) states that ‘[i]f the jobholder is dissatisfied with the countersigning officer’s decision, he may, within five working days, ask the countersigning officer to refer the matter to the Joint Evaluation Committee provided for in article 8’.
9. Article 8(5) of the general implementing provisions states that ‘[a]lthough the Committee may not take the place of the reporting officers in evaluating the work of the jobholder, it shall verify that the report has been produced fairly, objectively and in accordance with normal reporting standards. It shall also verify that procedures have been correctly followed (dialogue(s), time-limits, etc.). To this end, it will carry out the consultations it deems appropriate’.
10. Article 8(7) of those provisions stipulates that ‘[t]he opinion of the Evaluation Committee, notified to the jobholder and to the reporting and countersigning officer, is transmitted to the appeal assessor. Within three working days, the latter will either confirm the report or amend it, and refer it to the jobholder. Where the appeal assessor departs from the recommendations contained in the Joint Evaluation Committee’s opinion, he shall justify the reasons for his decision. A copy of the report shall be sent to the Joint Evaluation Committee. This report will be considered final’.
The provisions relating to the situation of officials recognised as being in a state of invalidity
11. Article 53 of the Staff Regulations is worded as follows:
‘An official to whom the Invalidity Committee finds that the provisions of Article 78 apply shall automatically be retired on the last day of the month in which the appointing authority recognises his permanent incapacity to perform his duties.’
12. Article 78 of the Staff Regulations provides:
‘An official shall be entitled, in the manner provided for in Articles 13 to 16 of Annex VIII, to an invalidity pension in the case of total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket.
…’
13. Annex VIII to the Staff Regulations establishes the pension scheme. Articles 13 to 16 in Chapter 3, entitled ‘Invalidity Pension’, are worded as follows:
‘ Article 13
Subject to the provisions of Article 1(1), an official aged less than 65 years who at any time during the period in which he is acquiring pension rights is recognised by the Invalidity Committee to be suffering from total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket, and who is obliged on these grounds to end his service with the Communities shall be entitled, for so long as such incapacity persists, to invalidity pension as provided for in Article 78 of the Staff Regulations. Invalidity pension and retirement pension shall not be paid concurrently.
Article 14
The right to receive payment of invalidity pension shall have effect from the first day of the calendar month following the official’s retirement under Article 53 of the Staff Regulations.
When the former official ceases to satisfy the requirements for payment of the pension he must be reinstated in the first post corresponding to his career bracket which falls vacant in his category or service, provided that he satisfies the requirements for that post. If he declines the post offered to him, he shall retain his right to reinstatement when the next vacancy corresponding to his career bracket occurs in his category or service subject to the same proviso; if he declines a second time, he may be required to resign; in that case, the provisions of Article 16 of Annex VIII shall apply.
Where a former official in receipt of invalidity pension dies, entitlement to pension shall cease at the end of the calendar month during which he died.
Article 15
While a former official drawing invalidity pension is aged less than 60 years, the institution may have him medically examined periodically to ascertain that he still satisfies the requirements for payment of the pension.
Article 16
Where a former official who has been drawing invalidity pension is reinstated in his institution or in any other institution of the Communities, the time during which he received invalidity pension shall be included for the purpose of calculating his retirement pension, without payment by him of arrears of contributions.’
Background to the dispute
14. The material facts are described in paragraphs 7 to 12 of the judgment under appeal as follows:
‘7 At the time when the action was lodged, the applicant was an official in grade LA 5 employed in the Directorate-General for Translation.
8 On the evening of 11 March 2003 he received his CDR for the period from 1 July 2001 to 31 December 2002. On the morning of 12 March 2003 he informed the countersigning officer of his wish to hold a dialogue with him pursuant to Article 7(5) of [the general implementing provisions]. He then took two and a half days’ leave in the afternoon. On the same day the countersigning officer confirmed the applicant’s CDR after noting on it that “it was not possible to arrange [the dialogue requested by the applicant] as the person concerned left on leave in the afternoon of 12 [March] 2003”.
9 On 25 March 2003 the applicant held a dialogue with the countersigning officer. On the same day, at the applicant’s request, the matter was referred to the Joint Evaluation Committee … On 11 April 2003 the [Joint Evaluation Committee] delivered its opinion. That opinion states “[the Joint Evaluation Committee] finds that the formal dialogue has not taken place [and] consequently … recommends that the appeal assessor ask the countersigning officer to hold the dialogue”. Another meeting was held between the applicant and the countersigning officer on 14 April 2003.
10 On 25 April 2003 a meeting took place between the applicant and the appeal assessor. The appeal assessor gave his decision on 28 April 2003. He confirmed the applicant’s CDR, stating that “it was noted that [the applicant] had requested that a formal dialogue be held on 12 March [2003], but it did not take place because of the leave requested by the person concerned … and taking account of the original deadline for finalisation of the exercise (15 March 2003)” and that “two meetings subsequently took place with the countersigning officer on 25 March 2003 and 14 April 2003”. In a note of the same date, the appeal assessor transmitted his decision to the chairman of the [Joint Evaluation Committee]. In that note, he stated the reasons why the formal dialogue requested by the applicant could not be organised and added that “the comments of the countersigning officer were made … taking account of those points, the reasons stated by the person concerned and after hearing [the applicant’s] immediate superior”. He also mentioned that “two formal meetings had been organised on 25 March 2003 and 14 April 2003 with the countersigning officer”.
11 On 25 July 2003 the applicant lodged a complaint pursuant to Article 90 of the Staff Regulations against the decision of 28 April 2003 confirming his CDR. By [the contested decision], which was notified to the applicant on 2 February 2004, the appointing authority rejected the applicant’s complaint …
12 Following the findings of the invalidity committee of 1 February 2005, stating that the applicant “was suffering from total permanent disability and could no longer perform the duties corresponding to a post in his grade”, by decision of 15 February 2005 the appointing authority decided that the applicant “was to be retired with an invalidity allowance in accordance with the provisions of the [third] paragraph … of Article 78 of the Staff Regulations”. The decision took effect on 28 February 2005.’
Proceedings before the Court of First Instance and the judgment under appeal
15. By application lodged at the Registry of the Court of First Instance on 7 May 2004, Mr Gordon brought an action for annulment of the contested decision and an action for damages.
16. On 1 March 2005, the Commission lodged a request for an order that there was no need to adjudicate on the application for annulment owing to Mr Gordon’s retirement, maintaining that an official who is retired on the ground of a state of permanent invalidity, which is considered to be total, no longer has an interest in contesting his CDR since, according to the case-law, the only purpose of the latter is to provide a basis for future decisions concerning his career. It also disputed the admissibility of the claim for damages. By order of the Court of First Instance of 10 June 2005, the request for an order that there was no need to adjudicate was joined to the substance of the case and costs were reserved.
17. By the judgment under appeal, the Court of First Instance ruled on Mr Gordon’s application for annulment of the contested decision and his application for damages and, lastly, on the measures of organisation of procedure which he had requested.
The decision of the Court of First Instance on the application for annulment
18. The Court held that there was no need to rule on the application for annulment of the contested decision on the following grounds, set out in paragraphs 27 to 39 of the judgment under appeal:
‘27 It should be recalled, first, that while a legal interest in bringing proceedings, to which the admissibility of an action is subject, is to be appraised at the time when that action is brought (Case 14/63 Forges de Clabecq
v High Authority
[1963] ECR 357, and order in [Case T‑97/94 N
v Commission
[1998] ECR‑SC I‑A‑621 and II‑1879], paragraph 23), this cannot prevent the Court from finding that there is no need to adjudicate on the action where the applicant who initially had a legal interest lost all personal interest in the annulment of the contested decision on account of an event occurring after that application was lodged. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he must retain a personal interest in the annulment of the contested decision ([Case] T‑159/98 Torre and Others
v Commission
[2001] ECR‑SC I‑A‑83 and II‑395, paragraph 30, Case T‑105/03 Dionyssopoulou
v Council
[2005] [ECR‑SC I‑A‑137 and II‑621], paragraph 18, and Case T‑274/04 Rounis
v Commission
[2005] [ECR‑SC I‑A‑407 and II‑1849], paragraphs 21 and 22). In addition, according to settled case-law, an applicant must show a vested and present interest in the annulment of the contested act such that, if the interest which an applicant claims concerns a future legal situation, he must demonstrate that the prejudice to that situation is already certain (Case T‑138/89 NBV and NVB
v Commission
[1992] ECR II‑2181, paragraph 33; Case T‑141/03 Sniace
v Commission
[2005] ECR II‑1197, paragraph 26, and order of the Court in Case T-28/02 First Data and Others
v Commission
[2005] ECR II‑4119, paragraphs 42 and 43).
28 Secondly, in relation to actions for annulment of a CDR, it must be pointed out that a CDR is an internal document, the primary function of which is to provide the administration with periodic information on the performance of their duties by officials (see, to that effect, Joined Cases 6/79 and 97/79 Grassi
v Council
[1980] ECR 2141, paragraph 20, and Case T‑59/96 Burban
v Parliament
[1997] ECR‑SC I‑A‑109 and II‑331, paragraph 73) and which, for the official himself, therefore plays an important part in the progress of his career, mainly as regards transfer and promotion. It follows that the CDR in principle only affects the interest of the person assessed in so far as that person still has a career ahead of him, that is, until termination of his service. As a result, after termination of his service, the official does not have any interest in bringing or pursuing an action challenging his CDR, save to establish the existence of a particular fact demonstrating a current, personal interest in obtaining annulment (see, to that effect, the order in N
v Commission, paragraph 26, and Dionyssopoulou
v Council, cited above, paragraph 20).
29 In the present case, the Commission contends that, having retired pursuant to Article 78 of the Staff Regulations on the ground of total permanent invalidity the applicant terminated his service permanently, and, in accordance with case-law cited above, lost his interest in pursuing his action. The applicant takes the view, on the other hand, that that case-law does not apply to the present case for two reasons. First, in this case, there was no permanent termination of service because, according to Article 14 of Annex VIII to the Staff Regulations, he can be reinstated in the service as soon as his state of health allows. Secondly, his retirement was compulsory, occurring after the present action was lodged. He observes that, in those circumstances, his right to judicial protection should prevail over other considerations and allow him to secure a judgment on the lawfulness of the contested CDR. He thus takes the view that he still has a current, personal interest in the annulment of the CDR.
30 Regarding, first, the question of the permanent nature of the termination of service in the event of retirement on the ground of total permanent invalidity, it must be pointed out that, even if Article 14 of Annex VIII to the Staff Regulations provides for the possibility of reinstating an official receiving an invalidity allowance, the fact of total permanent invalidity was intended by the legislature to bring the career of the official in question to an end. Therefore, Article 53 of the Staff Regulations provides that “[a]n official to whom the Invalidity Committee finds that the provisions of Article 78 apply shall automatically be retired on the last day of the month in which the appointing authority recognises his permanent incapacity to perform his duties”. In turn, all types of retirement, including that resulting from total permanent invalidity, are covered by the list of causes of permanent termination of service set out in Article 47 of the Staff Regulations. Invalidity of this kind is therefore regarded by the legislature, as regards whether or not the termination of service which this entails is permanent, in the same way as other causes of termination of service, the permanent nature of which is not in doubt, such as resignation, dismissal for incompetence or removal from post.
31 It follows that, according to the scheme of the Staff Regulations, retirement on the ground of total permanent invalidity within the meaning of Articles 53 and 78 is regarded, in principle, as bringing the official’s career to an end. It can therefore be distinguished from sick leave, provided for under Article 59 of the Staff Regulations, which does not affect the continuity of the career of the official who is temporarily unable to carry out his duties.
32 The Court considers, therefore, that in accordance with the case-law referred to above, the applicant’s retirement pursuant to Article 78 of the Staff Regulations affects his interest in securing the annulment of the contested CDR inasmuch as his career within his institution was, in principle, permanently interrupted.
33 That conclusion is not undermined by the applicant’s argument regarding possible reinstatement in the service under Article 14 of Annex VIII to the Staff Regulations. It must be recalled that an applicant must show a vested and existing interest in the annulment of the contested act, and that if the interest which an applicant claims concerns a future legal situation he must demonstrate that the prejudice to that situation is already certain. However, it is clear that the applicant’s reinstatement in the service of the Commission is only a possibility, which, at the present time, may not materialise. Therefore, this is merely a hypothetical interest and thus does not suffice to warrant a finding that the applicant’s legal situation is affected by the fact of not annulling the contested CDR (see, to that effect, Case 204/85 Stroghili
v Court of Auditors
[1987] ECR 389, paragraph 11).
34 As regards, secondly, the fact that the applicant’s retirement was compulsory and took place after the present action was lodged, it should be pointed out, first of all, that the Court has already had occasion to rule that an official who has terminated his service on the ground of dismissal for incompetence or removal from his post, which has become permanent following a legal action, does not have a legal interest in the annulment of his staff report (order in N
v Commission, paragraph 27, Joined Cases T‑200/03 and T‑313/03 V
v Commission
[2006] [ECR‑SC I‑A‑2‑15 and II‑A‑2‑57], paragraph 184). It is clear from the case-law that whether or not termination of service is voluntary is irrelevant for the purposes of assessing the existence of a legal interest in bringing proceedings. Secondly, in respect of the time of retirement in relation to the date of lodging the action, it is clear from the case-law referred to in paragraph 27 above that the fact of losing the legal interest in bringing proceedings after an action has been lodged cannot prevent the Court from finding that there is no need to adjudicate on the action ([Case T‑20/89 Moritz
v Commission
[1990] ECR II‑769], paragraph 16, Dionyssopoulou
v Council, cited above, paragraph 18, and Rounis
v Commission, cited above, paragraph 21).
35 In the light of the foregoing, it must be held that the amendment of the CDR sought by the applicant would not, in principle, have any impact on his career from 28 February 2005 onwards, the time when his career came to an end. It is therefore for the applicant to establish the existence of a particular fact demonstrating a current, personal interest in bringing annulment proceedings (order in N
v Commission, paragraphs 26 and 27).
36 It must be pointed out that the applicant, in disputing the permanent nature of his termination of service, does not invoke any particular fact within the meaning of the order in N
v Commission . He asserts, however, that his interest in seeking annulment of the contested CDR should be recognised in order to ensure protection of his right to effective judicial protection.
37 In that respect, it suffices to point out that the right to effective judicial protection entails the right to refer to the Court only those acts of the Community institutions which, in so far as they affect the applicant’s interests, affect him adversely (see, to that effect, the order of the Court of Justice of 1 October 2004 in Case C‑379/03 P Pérez Escolar
v Commission, …, paragraphs 41 and 42, and the order of the Court of First Instance in Case T‑276/02 Forum 187
v Commission
[2003] ECR II‑2075, paragraph 50). However, in the present case, it is clear that, because of his retirement, neither the contested decision nor the contested CDR, in so far as he has not been reinstated, affect the applicant adversely at the present time. It follows that, without having, at this stage, to rule on the relevance of the applicant’s argument if it were raised in support of a possible action in the event that the applicant were reinstated in the service, it must be observed that the right to effective judicial protection cannot confer on him a right to have the Court rule on the present application for annulment.
38 It follows from all of the above considerations that the applicant has not provided evidence of a vested and present interest in bringing proceedings. There is therefore no need to rule on the claim for annulment of the CDR at issue.
39 In relation to the claims for a declaration by the Court of unlawfulness of the [general implementing provisions] and the Transitional Guide, or of the provisions currently in force, it should be observed that, as the applicant himself states, these claims amount to pleas of unlawfulness raised in the application for annulment. Accordingly, there is no need to make a ruling on this point.’
The decision of the Court of First Instance on the application for damages
19. The Court dismissed the application for damages as inadmissible on the following grounds, set out in paragraphs 42 to 45 of the judgment under appeal:
‘42 It should be recalled that, under Article 21 of the Statute of the Court of Justice, which applies to the Court of First Instance by virtue of the first paragraph of Article 53 of that statute, and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, every application must contain the subject-matter of the dispute, the form of order sought and a brief statement of the pleas in law on which it is based. In order to satisfy those requirements, an application seeking compensation for damage allegedly caused by a Community institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage. However, a claim for an unspecified form of damage is not sufficiently concrete and must therefore be regarded as inadmissible (Case 5/71 Zuckerfabrik Schöppenstedt
v Council
[1971] ECR 975, paragraph 9; orders of the Court of First Instance in [Case] T‑505/93 Osório
v Commission
[1994] ECR‑SC I‑A‑179 and II‑581, paragraph 33, and in [Case T‑112/94 Moat
v Commission
[1995] ECR‑SC I‑A‑37 and II‑135], paragraph 32).
43 In the present case, the applicant only claims damages in compensation for the damage to his career prospects, to his health and to his well-being, without calculating the amount and without providing sufficiently concrete evidence to allow an assessment of the extent of the damage. His application does not in fact contain any other information in this respect than the fact that “[t]he manifest error of assessment and misuse of powers by the countersigning officer caused severe damage to the applicant’s promotion prospects” and that “[t]his has caused the applicant distress and ill health, compounding the damage to his career prospects”.
44 Even if the Court has previously accepted that, in special circumstances, it is not essential to specify the exact extent of the damage in the application and to state the amount of the compensation sought (Case T‑64/89 Automec
v Commission
[1990] ECR II‑367, paragraphs 75 to 77, and Case T‑37/89 Hanning
v Parliament
[1990] ECR II‑463, paragraph 82), it should be pointed out that, in the present case, the applicant has neither established nor invoked the existence of such circumstances (see, to that effect, the orders in Osório
v Commission, paragraph 35, and in Moat
v Commission, paragraph 37).
45 In addition, in relation to the non-material damage, it should be pointed out that quite apart from the complete absence of any quantification of that damage, the applicant has not placed the Court in a position to assess the extent or character thereof. However, where compensation of non-material injury, whether as symbolic reparation or as true compensation, is sought, it is for the applicant to specify the nature of the non-material damage alleged in connection with the conduct of the Commission complained of and to quantify the whole of that damage, even if approximately (order in Moat
v Commission, paragraph 38, and Case T‑157/96 Affatato
v Commission
[1998] ECR‑SC I‑A‑41 and II‑97, paragraph 38).’
The decision of the Court of First Instance on Mr Gordon’s request for measures of organisation of the procedure
20. The Court considered that Mr Gordon’s request for the Commission to be ordered to produce various documents, namely the minutes of the meetings of the Joint Evaluation Committee, the two best CDRs and the two worst CDRs of the officials in his unit for the period from 1 July 2001 to 31 December 2002, together with the document containing the official quantitative standards of the translation units for that period, was of no interest for resolving the case and therefore had to be dismissed.
Forms of order sought by the parties before the Court of Justice
21. The appellant claims that the Court should:
– set aside the judgment under appeal and make a ruling on the substance of his application;
– confirm his intrinsic interest in his CDR independent of the administration’s interest therein;
– declare that invalidity is a state that is, by definition, reversible, and is so regarded and so treated by the Commission’s medical service;
– accord him the right to judicial protection in respect of his CDR;
– allow his ancillary claim to damages and award him EUR 1.5 million in compensation; and
– order the Commission to pay the costs.
22. The Commission contends that the appeal should be dismissed and the appellant ordered to pay all the costs.
The appeal
23. The appellant advances four pleas in law in support of his appeal. The first three support the appeal in so far as it is directed against the decision of the Court of First Instance on the application for annulment, the fourth in so far as the appeal is directed against the Court’s decision on the application for damages.
Pleas in law relating to the decision of the Court of First Instance on the application for annulment of the contested decision
Arguments of the parties
24. The appellant maintains that the judgment under appeal is vitiated by errors of law in so far as the Court of First Instance took the view, first, that the CDR gives the official appraised an interest only if that official still has a career to complete; second, that retirement on the ground of permanent invalidity is equivalent to termination of service; and, third, that the right to effective judicial protection in the case of occupational illness does not confer a right of action against the contested decision.
25. In the first place, he submits that the Court erred in law in failing to take account of the exact function of the CDR.
26. The appellant states that the case-law which the Court took into account in paragraph 28 of the judgment under appeal is no longer relevant, since it relates to the old appraisal system that was in force before 2003, under which the staff report played only an incidental part in promotion. However, the current staff reporting system includes a mathematical link to promotion or dismissal and far greater scope for career acceleration or deceleration. According to the appellant it is inappropriate, in the context of that new system, to describe as ‘internal’ a document which has significant, objective implications. Furthermore, the role of the official in the appraisal process cannot be relegated to secondary status by comparison with that of the administration.
27. In the second place, the appellant submits that the Court erred in law in misconceiving the consequences of invalidity. The Court interpreted invalidity as a definitive state. However, it is clear from the wording of Article 14 of Annex VIII to the Staff Regulations that invalidity is a reversible state, which, moreover, is reflected by the practice whereby invalidity cases are normally reviewed by the Commission’s medical service every two years.
28. In addition, the appellant submits that, while the decision to retire him on the ground of invalidity taken on 15 February 2005 was adopted for two years, the renewal by the Commission’s medical service in 2007 was limited to one year, which shows that his reinstatement in the service is not merely hypothetical, and therefore that his interest in the annulment of the contested decision is vested and present.
29. In the third place, the appellant maintains that the Court failed to take into account the effects of the general principle of effective judicial protection.
30. The appellant states that, in the present case, the doctors did not rule out the possibility that his invalidity was of occupational origin. However, the Invalidity Committee preferred to await the opinion of the competent authorities – in other words, according to the appellant, the decision of the Court of First Instance – before determining that aspect. The fact that the Court did not rule on the substance of the case means that the situation is blocked from the point of view of the appellant, of the Commission’s medical service and of the Invalidity Committee.
31. Yet the decision as to whether the invalidity is of occupational origin dictates the terms on which the appellant could be reinstated in his post or, conversely, the level of his invalidity pension. In those circumstances, the appellant submits that it cannot be maintained that his legal interest in bringing proceedings is merely hypothetical and that a ruling on that issue is necessary only in the event of his reinstatement.
32. The appellant submits that, since the right to effective judicial protection is a fundamental right, the statutory provisions and legal elements of the case at issue cannot be interpreted and applied in a restrictive manner.
33. As regards the first plea in law, the Commission challenges the appellant’s argument that the Court’s reasoning in paragraph 28 of the judgment under appeal is irrelevant, because it refers to the reporting system which applied before 2003 rather than to the system currently in force.
34. The Commission observes, as a preliminary point, that the CDR at issue relates to a period before 2003, namely the period between 1 July 2001 and 31 December 2002. Therefore, it assumes that the appellant is actually referring to the reporting system introduced from July 2001.
35. The Commission contends that there has always been a link between the appraisal of officials and their promotion. This is still the case now, since the relevant provisions of the new Staff Regulations adopted in 2004 still appear in a chapter entitled ‘Reports, advancement to a higher step and promotion’. According to the Commission, the staff report would serve no purpose if there were no link between the appraisal and promotion of officials. It takes the view that the appellant has not put forward any serious argument, or referred to any allegedly relevant change in the rules, or mentioned any new development in the case-law to support his position.
36. As regards the second plea in law, relating to the implications of the decision to retire the appellant on the ground of invalidity, the Commission notes that the appellant merely relies on Article 14 of Annex VIII to the Staff Regulations, without any mention of Articles 53 and 78. However, as the judgment under appeal shows, Article 14 cannot be read in isolation. The Staff Regulations make a clear distinction between temporary invalidity (Article 59), on the one hand, and permanent invalidity (Article 53), on the other. While temporary invalidity confers a right to sick leave, permanent invalidity gives rise to the retirement of the official concerned.
37. The Commission takes the view that the fact that the medical service renewed its decision concerning the appellant’s invalidity for one year, rather than for two, is irrelevant for the purposes of assessing the extent of the invalidity. The interval between medical examinations cannot be accepted as a criterion for determining whether an official’s invalidity is temporary or permanent. Where a case of invalidity falls within Article 78 of the Staff Regulations, it should be considered to be permanent. Furthermore, notwithstanding Article 14 of Annex VIII to the Staff Regulations, invalidity should be considered to be permanent for so long as it lasts.
38. As regards the third plea in law, relating to the infringement of the right to effective judicial protection, the Commission contends that that is based on a false premiss. Contrary to the appellant’s claim, it is not for the Court of First Instance to rule on the origin of the invalidity which has been established in his case. The Commission contends that that is a medical question which falls within the competence of a medical body, namely the appointing authority’s doctor or the Medical Committee, pursuant to Article 19 et seq. of the common rules implementing Article 73 of the Staff Regulations. It follows from this that, when the Invalidity Committee reserved its decision on the origin of that invalidity pending the decision of the ‘competent authorities’, that committee was referring to the decision of medical bodies, not to the judgment under appeal.
39. The Commission adds that the appellant has always had the option of initiating a procedure on the basis of Article 73 of the Staff Regulations for the purposes of determining whether his invalidity is of occupational origin. Therefore, he has not been deprived of any judicial protection in that regard.
40. In addition, the Commission contends that the Court of First Instance did not deprive the appellant of judicial protection in relation to the CDR at issue either, since it does not entirely exclude the possibility that the appellant might have an interest in challenging it later, in the event that he is reinstated in the service.
Findings of the Court
41. As a preliminary point, it should be noted that the Commission, like all the Community institutions, has a special obligation of transparency in regard to staff reporting, advancement and promotion of its agents, compliance with which is ensured by means of the formal procedure laid down in Articles 43 and 46 of the Staff Regulations.
42. In this respect, the CDR is an essential document in the appraisal of staff employed by the institutions, since it enables an assessment to be made of an official’s ability, efficiency and conduct, as referred to in Article 43 of the Staff Regulations. That report is drawn up at least once every two years as provided for by each institution in accordance with Article 110 of the Staff Regulations.
43. In addition, as the Advocate General noted at point 49 of his Opinion, the CDR is a value judgment by an official’s immediate superiors on the manner in which the official being appraised has performed the duties conferred on him and on his conduct in the service during the relevant period.
44. It must be pointed out, in the first place, that, irrespective of its future usefulness, the CDR constitutes written, formal evidence of the quality of the work carried out by the official. Such an appraisal does not merely describe the tasks performed during the relevant period, but also includes an assessment of the personal qualities shown by the individual assessed in the conduct of his professional life.
45. Therefore, every official has a right to have his work recognised by means of an appraisal carried out in a just and equitable manner. Consequently, in accordance with the right to effective judicial protection, officials must in any event be acknowledged as having the right to challenge their CDR on account of its content or because it has not been drawn up in accordance with the rules laid down by the Staff Regulations.
46. In the second place, while it is true that an official who is recognised by the Invalidity Committee as being in a state of total permanent incapacity is automatically retired pursuant to Articles 53 and 78 of the Staff Regulations, the situation of that official is distinct from that of an official who has reached the age of retirement, or who has resigned or been dismissed, because it is reversible.
47. An official in a state of total permanent invalidity may one day resume his duties within a Community institution, given the wording of Article 16 of Annex VIII to the Staff Regulations. In that regard, the general provision of Article 53 of the Staff Regulations must be read in conjunction with the specific provisions of Articles 13 to 15 of Annex VIII to the Staff Regulations. The employment of an official who is declared to be in a state of invalidity is merely suspended, since the evolution of his position within the institutions is subject to the continued existence of the conditions which justified that invalidity, which can be reviewed at regular intervals.
48. Here, in the case of the appellant, all the requisite conditions to justify his automatic retirement on the ground of total permanent invalidity, in accordance with Article 13 of Annex VIII to the Staff Regulations, were not considered to have been definitively met. This is borne out by the fact that the Commission’s medical service responsible for reviewing the appellant’s invalidity status renewed the declaration of his invalidity on 31 January 2007 for only one further year, rather than for two, as in the Commission’s original invalidity decision of 1 February 2005. That shows that the possibility of reinstating the appellant was not merely hypothetical but real.
49. Given that an official who is recognised as being in a state of permanent invalidity, which is considered to be total, may be reinstated in the institutions, that official has a right comparable to that of a serving official to have his CDR drawn up fairly, objectively and in accordance with normal reporting standards.
50. In the event of reinstatement, the CDR would be useful for the official’s development within his service or the Community institutions. It would constitute tangible, formal evidence of his ability and experience within the institution, upon which he would be able to rely. It would also enable superiors to compare the merits of candidates for possible promotion or transfer.
51. Accordingly, it must be held that an official in a state of total permanent invalidity pursuant to Articles 53 and 78 of the Staff Regulations retains an interest in challenging a CDR.
52. Since it cannot be inferred from the declaration of Mr Gordon’s total permanent invalidity that he may not one day be reinstated within the Community institutions, it is conceivable that, after any reinstatement, he might rely on the CDR at issue within those institutions.
53. Having regard to all those considerations, the first two pleas in law must be regarded as being well founded. Consequently, the judgment under appeal must be set aside in so far as it determines that there is no longer any need to rule on the application for annulment of the contested decision, without its being necessary to examine the third plea in law, which is unlikely to result in the judgment’s being set aside in any other respect.
Plea in law relating to the decision of the Court of First Instance on the application for damages
Arguments of the parties
54. The appellant maintains that the Court was wrong to rule that his application was inadmissible because the nature and extent of the damage had not been specified. He notes that, according to the case-law of the Court of First Instance that was cited in the judgment under appeal itself, in special circumstances, it is not essential to specify the exact extent of the damage in the application and to state the amount of the compensation sought.
55. The appellant also submits that he never expected or requested a decision on damages in the absence of a decision on the application for annulment. He states that, in his reply before the Court of First Instance, he expressly reserved his right to initiate any procedure in order to obtain compensation for the damage suffered, in the light of the anticipated judgment of the Court of First Instance.
56. The appellant takes the view that, because of the special circumstances and the complexity of his situation, a decision on damages should only be taken after the Court of Justice has ruled on the application for annulment.
57. Nevertheless, he submits at this point that, if the Court finds that he has indeed been the victim of an unfair appraisal and a grievous injustice and that, as a result, his career has genuinely been irreparably damaged, compensation in the order of EUR 1.5 million would not be inordinate.
58. The Commission contends that the possibility of being freed from the obligation to specify the exact extent of the damage suffered constitutes an exception. It is clear from paragraph 44 of the judgment under appeal that the Court of First Instance considered the appellant’s case not to fall within that exception. According to the Commission, the appellant did not argue before that Court that his case disclosed anything to allow him to escape the general rule. Furthermore, in his appeal, the appellant did not state in what respect the Court erred in applying that general rule. The Commission concludes from this that, as a result, his argument exposes him to a further objection of inadmissibility on account of the lack of reasoning to substantiate the appellant’s position.
59. In addition, the Commission challenges the appellant’s argument that the Court should not have ruled on the issue of damages because the appellant had indicated his intention to initiate separate proceedings later in order to obtain compensation for the damage allegedly suffered. In fact, that claim is not substantiated by the documents before the Court in the proceedings at first instance.
Findings of the Court
60. It must be noted that the Court of First Instance dismissed the claim for damages as inadmissible in so far as, first, the appellant merely claimed damages in compensation for the damage to his career prospects, to his health and to his well-being, without calculating the amount and without providing sufficiently clear evidence to allow an assessment of the extent of that damage and, second, that, in relation to the non-material damage, quite apart from the complete absence of any quantification of that damage, the applicant did not place the Court in a position to assess the extent or character thereof.
61. In that regard, it is sufficient to note that the question whether the amount of compensation claimed by the appellant has been sufficiently demonstrated by him requires an assessment of the facts which lies beyond the jurisdiction of the Court, which is merely to review the compliance of the judgment under appeal with rules of law (see, to that effect, Case C‑209/94 P Buralux and Others
v Council
[1996] ECR I‑615, paragraph 21).
62. Furthermore, as the Advocate General noted at point 78 of his Opinion, in the event that the Court does examine the merits of the dispute, the claim for EUR 1.5 million in compensation constitutes an application for a different form of order for the purposes of Article 113 of the Rules of Procedure of the Court, which must be declared inadmissible.
63. Consequently, the appellant’s appeal must be dismissed as inadmissible, in so far as he challenges the dismissal by the Court of First Instance of his application for damages.
The action before the Court of First Instance
64. Under the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice, the latter may, where it quashes the decision of the Court of First Instance, itself give final judgment in the matter, where the state of the proceedings so permits. That is the case here, so far as the application for annulment is concerned.
Arguments of the parties
65. In the first place, the appellant seeks the annulment of the contested decision which rejects his complaint against the decision of 28 April 2003 confirming his CDR for the period from 1 July 2001 to 31 December 2002.
66. He advances three pleas in law in support of that application, the first of which alleges a breach of essential procedural requirements and of the rights of the defence.
67. In that regard, the appellant submits that a number of irregularities were committed in relation to the internal appeal procedure in respect of the CDR at issue. He maintains, in particular, that the second stage of that procedure, consisting of a review by the Joint Evaluation Committee of the formal and substantive requirements of that CDR, did not proceed lawfully.
68. Thus, the examination undertaken by that committee was limited to the procedural aspect, and did not relate to the substance. Since the formal dialogue with the countersigning officer for the CDR had not taken place, the committee recommended that that dialogue be held. However, the appellant’s case was not sent back to the committee after that dialogue had taken place, so as to enable the committee also to determine whether the CDR had been produced fairly, objectively and in accordance with normal reporting standards, as required by Article 8(5) of the general implementing provisions.
69. According to the appellant, that omission constitutes a serious irregularity which vitiates the internal appeal procedure. On account of its composition, the Joint Evaluation Committee is the only appeal body in which members of staff performing the same duties as the appellant could have examined his report. Moreover, the opinion of that committee is of great value, inasmuch as the appeal assessor is required to justify his decision if he departs from that opinion.
70. The Commission alleges that the appellant cannot derive any argument from the fact that the Joint Evaluation Committee merely found that the formal dialogue with the countersigning officer for the CDR had not taken place, since the appellant himself failed to inform the Joint Evaluation Committee that that dialogue had taken place on 25 March 2003.
Findings of the Court
71. It is apparent from the documents before the Court that the Joint Evaluation Committee did not take a view on the content of the CDR at issue, although it is obliged to do so where, as in the present case, a challenge is laid before it. In that committee’s opinion sent to the appeal assessor on 11 April 2003, it merely found that the formal dialogue with the countersigning officer had not taken place, contrary to Article 7 of the general implementing provisions.
72. Therefore, the countersigning officer could not determine the appellant’s internal appeal in his decision of 28 April 2003 while the Joint Evaluation Committee had not stated its own opinion on the content of the CDR at issue, with the result that the CDR was not definitive.
73. As the Advocate General stated at point 96 of his Opinion, in ruling as he did in his decision of 28 April 2003, the appeal assessor treated the appellant’s right of appeal to the Joint Evaluation Committee as a mere formality. However, where a complaint is brought before that committee, examination of the content of the CDR concerned is an essential procedural requirement, since that committee is the only body involved in the reporting process which includes staff representatives and, moreover, its opinions have to be taken into consideration by the appeal assessor.
74. It is apparent, therefore, that the fact that the Joint Evaluation Committee did not rule on the content of the CDR at issue in accordance with Article 8 of the general implementing provisions constitutes a substantive infringement of the procedure for drawing up a CDR which adversely affects the rights of the appellant.
75. Therefore, without there being any need to rule on the other pleas in law advanced in support of the application for annulment, the contested decision must be annulled.
Costs
76. Under Article 122 of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, it is to make a decision as to costs.
77. Under Article 69(2) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As Mr Gordon has applied for costs against the Commission and the latter has been unsuccessful, the Commission must be ordered to pay the costs of the proceedings before the Court of Justice and the Court of First Instance.
Operative part
On those grounds, the Court (Fourth Chamber) hereby:
(1) Sets aside the judgment of the Court of First Instance of the European Communities of 7 February 2007 in Case T‑175/04 Gordon
v Commission
in so far as the Court of First Instance declared that there was no need to rule on the application for annulment brought by Mr Gordon;
(2) Dismisses the appeal as inadmissible in so far as it challenges the dismissal of the claim for damages in the judgment of the Court of First Instance referred to;
(3) Annuls the decision of the Commission of the European Communities of 11 December 2003 rejecting Mr Gordon’s complaint against the decision of 28 April 2003 confirming his career development report for the period from 1 July 2001 to 31 December 2002;
(4) Orders the Commission of the European Communities to pay the costs incurred by Mr Gordon before the Court of Justice of the European Communities and the Court of First Instance of the European Communities.