JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
19 October 2022 (*)
(Civil service – Members of the temporary staff – Appraisal report – 2018 appraisal exercise – Manifest error of assessment – Principle of impartiality – Right to a fair hearing – Article 26 of the Staff Regulations – Duty to have regard for the welfare of staff – Liability)
In Case T‑270/20,
JS, represented by L. Levi and A. Champetier, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by L. Forestier, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed, at the time of the deliberations, of R. da Silva Passos, President, V. Valančius (Rapporteur) and M. Sampol Pucurull, Judges,
Registrar: I. Pollalis, Administrator,
having regard to the written part of the procedure,
further to the hearing on 21 June 2021,
gives the following
Judgment
1        By his action under Article 270 TFEU, lodged at the Court Registry on 7 May 2020, the applicant, JS, seeks, first, annulment of his appraisal report for 2018 and of the decision of 22 January 2020 rejecting his complaint and, secondly, compensation for the damage which he claims to have suffered as a result.
I.      Background to the dispute
2        The applicant began working with [confidential] as [confidential] in grade [confidential] on 1 August 2014.
3        The applicant began working with the Single Resolution Board (SRB) as [confidential] in grade [confidential] on [confidential].
4        During the period from [confidential] to [confidential], the applicant worked under the authority of a head of unit, who was also his reporting officer (‘the reporting officer’).
5        On 14 January 2019, the SRB launched the 2018 appraisal exercise, which covered the period from 1 January 2018 to 31 December 2018 (‘the appraisal period’). The applicant submitted his self-assessment on the same day.
6        In the context of the appraisal procedure, the applicant’s reporting officer requested input from other members within her unit regarding the applicant’s performance. One of those members was responsible for coordinating the work of the unit during the reporting officer’s maternity leave, between August and the end of 2018.
7        On 11 March 2019, the appraisal dialogue took place between the applicant and the reporting officer in the presence of an independent observer, a member of the SRB’s Staff Committee, following the request of the applicant, who wished to have a third person present during the appraisal dialogue.
8        On 14 March 2019, the reporting officer signed the applicant’s 2018 appraisal report, which concluded that his performance during the appraisal period had been unsatisfactory (‘the initial appraisal report’).
9        On 21 March 2019, in accordance with Article 4(1) of the decision of the SRB of 25 March 2015 laying down general provisions for implementing Article 43 of the Staff Regulations of Officials of the European Union (respectively, ‘the GIPs’ and ‘the Staff Regulations’), and implementing the first paragraph of Article 44 of the Staff Regulations for temporary staff, the initial appraisal report was confirmed by the immediate superior of the reporting officer in his capacity as countersigning officer.
10      On [confidential], the applicant, considering that he was a victim of continuous psychological harassment on the part of his reporting officer, submitted a request for assistance under Article 24 of the Staff Regulations, applicable to members of the temporary staff pursuant to Article 11 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), and requested his reassignment as a matter of urgency (‘the request for assistance’).
11      On the same day, the applicant appealed against the initial appraisal report and requested a dialogue with the appeal assessor. That second dialogue took place between the appeal assessor and, separately, the applicant and the reporting officer on 22 May 2019.
12      On [confidential], the SRB decided to reassign the applicant, from [confidential], to another unit.
13      On 5 June 2019, the appeal assessor confirmed the initial appraisal report, as drafted by the reporting officer and the countersigning officer for the appraisal period, and it became final (‘the 2018 appraisal report).
14      On 12 June 2019, the 2018 appraisal report was communicated to the applicant.
15      Considering that he was a victim of discrimination and continuous harassment on the part of the reporting officer, on 4 September 2019 the applicant resigned from his position with effect from 30 September 2019, citing health problems.
16      On 12 September 2019, the applicant lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, applicable to members of the temporary staff pursuant to Article 46 of the CEOS, against the 2018 appraisal report, which was rejected by decision of 22 January 2020, notified to the applicant on 28 January 2020 (‘the decision of 22 January 2020’).
II.    Forms of order sought
17      The applicant claims that the Court should:
–        annul the 2018 appraisal report;
–        annul the decision of 22 January 2020;
–        order the SRB to pay him financial compensation in respect of the non-material damage, the amount of which can be evaluated ex aequo et bono at the sum of EUR 15 000;
–        order the SRB to pay him the sum of EUR 2 322 in compensation for the material damage allegedly suffered during the 12-month period beginning August 2019;
–        order the SRB to pay the costs.
18      The SRB contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicant to pay the costs.
III. Law
A.      Subject matter of the action
19      The applicant requests the Court to annul the 2018 appraisal report and the decision of 22 January 2020 by which the SRB rejected the complaint lodged on 12 September 2019 against that appraisal report.
20      It should be noted that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint, where that decision has no independent content, have the effect of bringing before the General Court the act against which the complaint was submitted (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 72 and the case‑law cited).
21      In the present case, the decision of 22 January 2020 rejecting the complaint confirms the 2018 appraisal report, by giving details of the reasons supporting that report. Consequently, the claim for annulment must be regarded as directed against the 2018 appraisal report, the reasoning for which is specified by the decision of 22 January 2020, which has no independent content (see, to that effect, judgment of 2 April 2020, Barata v Parliament, T‑81/18, not published, EU:T:2020:137, paragraph 62).
B.      Admissibility
1.      Admissibility of the evidence submitted by the applicant
22      By document lodged at the Court Registry on 18 June 2021, the applicant produced new evidence in support of his action, namely requests for testimony drafted, respectively, by the applicant’s representative and by the applicant himself (Annexes D.1 and D.2), as well as a response to another request for testimony from the applicant (Annex D.3).
23      At the hearing, the SRB disputed the admissibility of that new evidence, pursuant to Article 85(3) of the Rules of Procedure of the General Court.
24      In that regard, it should be recalled that, under Article 85(3) of the Rules of Procedure, the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed, provided that the delay in the submission of such evidence is justified. Furthermore, it must be borne in mind that that provision concerns offers of fresh evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified.
25      In the present case, the Court decided, pursuant to Article 83(1) of the Rules of Procedure, that a second exchange of pleadings was unnecessary because the contents of the case file were sufficiently comprehensive. In that context, the applicant justified the production of Annexes D.1 and D.2 by the need to respond to an argument raised in paragraph 60 of the defence.
26      In paragraph 60 of the defence, the SRB called into question the probative value of certain testimonies produced by the applicant in annex to the application. Annexes D.1 and D.2 are thus intended to remedy that criticism by the submission of the requests for testimony which gave rise to the testimonies in question.
27      Accordingly, since the production of Annexes D.1 and D.2 after the SRB’s defence was lodged is duly justified, it must be held that they are admissible.
28      By contrast, it must be held that the delay in producing the third item of new evidence, namely Annex D.3, is in no way justified by the applicant. Admittedly, that testimony was received by the applicant on 18 June 2021. However, that timing cannot, as such, justify the late submission of that testimony. It is apparent from Annex D.3 that the applicant did not request that testimony until 16 June 2021, that is to say, only three working days before the hearing, even though that testimony related to events which occurred between the end of 2017 and the beginning of 2019. Furthermore, the applicant has not put forward, let alone proved, any reason which prevented him from requesting that testimony before the present action was brought. Accordingly, Annex D.3 is inadmissible and will not be taken into account by the Court in the examination of the present action.
2.      The new plea put forward by the applicant at the hearing
29      At the hearing, the applicant, pursuant to Article 84(1) of the Rules of Procedure, raised a new plea in law, alleging breach of the right to a fair hearing, on the ground that he had not had access to material on which the 2018 appraisal report was largely based. Nor was that information placed on his personal file, in breach of Article 26 of the Staff Regulations. According to the applicant, he was therefore not informed of all the material taken into account in the preparation of the 2018 appraisal report.
30      That material, of which the applicant became aware for the first time in the context of the present proceedings before the Court, consists of emails sent to the reporting officer from two resolution team coordinators for two banks, dated 28 February and 1 and 5 March 2019, containing assessments of the quality of the applicant’s performance.
31      The SRB contended, pursuant to Article 84 of the Rules of Procedure, that the new plea in law should be declared inadmissible.
32      In that regard, it should be recalled that, under Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure.
33      In the present case, it is common ground that, in the context of these proceedings, the emails in question were communicated to the applicant for the first time as an annex to the defence, and that the applicant was not authorised to lodge a reply.
34      It follows that the plea put forward at the hearing, according to which the failure to communicate the emails at issue constitutes a breach of the applicant’s right to a fair hearing, is based on matters of fact disclosed in the defence and must therefore be declared admissible.
C.      Substance
1.      The claim for annulment
35      The applicant puts forward five pleas in support of his application for annulment. The first plea alleges manifest errors of assessment. The second plea alleges a lack of professional objectives and a job description. The third plea alleges breach of the principle of impartiality and of the GIPs. The fourth plea alleges breach of Article 5 of the GIPs and of the duty to have regard for the welfare of staff. The fifth plea in law alleges breach of the right to a fair hearing.
(a)    First plea: manifest errors of assessment
36      By the first plea, the applicant submits in essence that the 2018 appraisal report and the decision of 22 January 2020 contain several manifestly erroneous claims, related both to the quality of his work and to his conduct. That first plea is subdivided into six parts.
37      First, the applicant disputes the allegations of ‘uncooperative conduct’ and of ‘misconduct’ during two workshops with the [confidential] and the [confidential].
38      The applicant states that there was no workshop on 8 March 2018 and that the two workshops referred to in the 2018 appraisal report correspond to workshops that took place with [confidential] and [confidential] on 7 March 2018 and 22 November 2018. He adds that in all the communications following those two workshops the behaviour of all of the participants was praised, including by the team coordinator, and that if a serious incident had occurred, causing the SRB to apologise to [confidential] for alleged misbehaviour of the applicant, there would obviously be a mention of it in the minutes of the meetings.
39      The applicant further states that the [confidential] manager responsible for resolution planning, who attended both those workshops throughout, himself testified that the applicant did not misbehave during those workshops.
40      The applicant claims to have been praised, through all the emails and testimonies of the team members and workshop participants, for the quality of his contributions and personal conduct during the meetings and in resolution planning activities for [confidential]. He also claims that the SRB decided to ignore those emails and testimonies.
41      The applicant refutes the comments contained in the 2018 appraisal report that his team-player attitude in the appraisal period had been low.
42      He states that in the 2017 appraisal report, communicated only in February 2019 just a few days before the initial appraisal report, the reporting officer herself had noted that the applicant always behaved correctly towards the hierarchy and his colleagues, and that, as a result, the comments regarding appraisal of his conduct in the service in the 2018 appraisal report and the decision of 22 January 2020 are erroneous and false.
43      Second, the applicant disputes the allegations of poor prioritisation and unpunctual performance of tasks.
44      The applicant refutes the comment in Section 3.1 ‘Efficiency’ of the 2018 appraisal report, that he favoured more his ‘horizontal work’ for financial stability rather than resolution planning, which is the core business of a [confidential] unit. He also disputes the conclusions set out in Section 3.7 ‘General comment/Dialogue’ of the 2018 appraisal report and in the decision of 22 January 2020, that there was still room for him to improve certain skills, particularly in the area of prioritisation.
45      He states that, despite his repeated requests since the beginning of the appraisal period, his reporting officer systematically refused to provide him with professional objectives or a job description.
46      The applicant states that his reporting officer explicitly nominated him as representative of the unit in multiple SRB-wide technical expert groups on Resolution Reporting, in the Task Force on Minimum Requirement for Own Funds and Eligible Liabilities and in the Financial Stability Expert Network, and that he received praise in particular from the acting head of unit during the appraisal period, from August to December 2018, for his performance of those tasks and from the expert groups for the quality of his contribution.
47      He asserts that the reporting officer herself moreover, on her return to the office, acknowledged the high political interest of the applicant’s project and analysis, as confirmed in the 2018 appraisal report, which, in Section 3.1 ‘Efficiency’, states that the applicant’s analysis on potential bail-in effects provided a useful overview. Therefore, according to the applicant, his reporting officer’s conclusion that ‘his performance was unsatisfactory because of alleged over-prioritising of SRB-wide horizontal tasks’ is erroneous.
48      In addition, the applicant refutes the claims regarding the unpunctual delivery of certain tasks.
49      He states that he was given the task of drafting the cover note for the resolution plan for [confidential] on 29 November 2018 at 16.00 and that he independently delivered it on 30 November 2018, that is to say the following day. He was therefore clearly within the time frame set, since the deadline was 10 December 2018.
50      The applicant states that he sent his draft cover note for the resolution plan for [confidential] on 30 November 2018, that is to say, more than three and a half months before the document was due for the approval process of SRB decision-making bodies, which started in mid-March 2019 and ended in May 2019.
51      The applicant challenges the comments in the 2018 appraisal report, concerning the core tasks on resolution planning, that, probably due to his own prioritisation of topics, he seems to have run short of time for resolution-related tasks so that he had to delegate the work to the other colleague involved.
52      He points out in that regard that the [confidential] had asked to receive the results by 8 March 2018 and that, due to his prioritisation skills and punctuality, the SRB’s team was in a position to deliver them by 27 February 2018.
53      Third, the applicant disputes the comment of his reporting officer that (i) his ability to use the expertise he has for resolution planning throughout the year was average, whilst (ii) his willingness or ability to cooperate with his colleagues in a trustful manner was low.
54      He also disputes the comment in the 2018 appraisal report that, although the applicant would react on written instructions coming from above him, in hierarchical terms, he had showed shortcomings when it came to interacting, communicating and collaborating effectively with his team colleagues at the same hierarchical level in a smooth manner. He adds that he always behaved in a very cooperative and professional manner.
55      Fourth, the applicant refutes the comment that his choice of timingfor training courses and learning did not always take into account the work scheduled for him and that in particular he undertook training courses without informing the coordinators or the head of unit, which created unbalanced situations with regard to the other members of the unit, who were, at certain times, required to make up for those absences.
56      The applicant points out in that regard that the large majority of the training courses he attended were mandatory SRB training courses.
57      He states that most of the other training courses he attended were provided by the EU institutions’ e-learning portal, EU Learn, which automatically informs the head of unit and/or SRB Human Resources and requests their approval.
58      The applicant also states that, as regards the small number of training courses he chose to attend during working time, his reporting officer or her deputy was always informed.
59      Fifth, the applicant states that his reporting officer is relatively silent in the section related to language competencies although he has qualifications, in Spanish, German, English and French, that far exceed the reclassification requirement.
60      Sixth, the applicant regrets that his reporting officer failed to appraise or even mention his responsibilities exercised although he undertook to represent the unit in numerous SRB and Single Resolution Mechanism expert groups. Similarly, although he was criticised by his reporting officer for unpunctual delivery of important tasks, she failed to mention the high level of responsibilities which he accepted, such as the preparation of notes for the highest decision-making bodies of the SRB.
61      The SRB disputes the applicant’s arguments.
62      In that regard, it is appropriate, as a preliminary point, to recall the circumstances in which the Court may find that an appraisal report is vitiated by manifest errors of assessment.
63      First of all, it must be borne in mind that it is not for the Court to substitute its own assessment for that of the persons responsible for appraising the work of the person on whom they are reporting. Reporting officers enjoy a wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the EU judicature of the content of appraisal reports is limited to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers (see, to that effect, judgments of 1 June 1983, Seton v Commission, 36/81, 37/81 and 218/81, EU:C:1983:152, paragraph 23, and of 25 October 2005, Cwik v Commission, T‑96/04, EU:T:2005:376, paragraph 41).
64      Next, it should be noted that an error may be said to be manifest only 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. As a result, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of an appraisal report, the evidence, which it is for the applicant to adduce, must be sufficient to render implausible the assessments made by the administration. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid (see, to that effect, judgments of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 95 and the case-law cited, and of 12 March 2020, QB v ECB, T‑215/18, not published, EU:T:2020:92, paragraph 102 and the case-law cited).
65      The existence of that wide discretion with regard to appraisal presupposes that the reporting officers are not obliged to include in the appraisal report all the relevant factual and legal elements supporting their assessment, or to consider and reply to all the points disputed by the person under appraisal (see, to that effect, judgment of 12 July 2018, PA v Parliament, T‑608/16, not published, EU:T:2018:440, paragraph 32).
66      It is in the light of the foregoing considerations that the six parts of the first plea in law relied on by the applicant in support of the claim for annulment of the 2018 appraisal report must be examined.
(1)    The first part of the first plea, alleging errors in assessing the applicant’s conduct in the service
67      The applicant disputes the assessments under Section 3.3 ‘Conduct in the service’ of the 2018 appraisal report relating to his misbehaviour during the two workshops with [confidential] and [confidential] on 7 March and 21 November 2018 and his uncooperative attitude.
68      As regards, in the first place, the applicant’s misbehaviour during the two workshops with [confidential] and [confidential], it is apparent from the email of 5 March 2019 from the [confidential] coordinator that the applicant attended the workshop of 7 March 2018, which took place by videoconference, without a laptop computer or any paper to take notes and that he disrupted the presentations his colleagues were making, interrupting them in order to ask them whether he could use their laptop computer. According to that email, another incident occurred during the workshop of 22 November 2018, the applicant repeatedly interrupting his colleagues, including the coordinator, in full presentation.
69      Consequently, it must be held that the observations, in Section 3.3 ‘Conduct in the service’ of the 2018 appraisal report, relating to the applicant’s conduct during both workshops, which are based on the contribution of the [confidential] coordinator, a direct witness of those incidents, are not unfounded and, moreover, contradict the applicant’s claim that no incident occurred during those two workshops and that he showed an interest in them.
70      That finding cannot be called into question by the applicant’s arguments.
71      First, as regards the praise which the applicant claims to have received and on which he relies, it is apparent from Annex A.12 to the application that they are the general follow-up emails sent on 7 and 12 March 2018 by the [confidential] coordinator to the entire team, and which are not addressed in particular to the applicant. Furthermore, it should be noted that those emails do not in any way contain praise for the applicant for the quality of his performance.
72      Second, as regards the emails of 14 June and 27 July 2018 sent by the [confidential] coordinator to several members of staff, including the applicant, it must be stated that they have no connection with the two workshops at issue and are therefore not capable of substantiating the applicant’s argument.
73      Third, as regards the three written testimonies of members of staff of [confidential] and [confidential] who were present at those workshops, those testimonies mention that those persons had no recollection of an incident. However, the fact remains that those testimonies were requested by the applicant in the spring of 2020, that is almost two years after the first workshop in question was held, and that, in any event, while the applicant relies on comments made by persons outside the SRB, it is exclusively for the applicant’s reporting officer to assess his ability, efficiency and conduct in the context of the appraisal exercise for 2018. In particular, the fact that the applicant received positive assessments from people with whom he worked does not in itself mean that he performed satisfactorily or that he achieved the objectives assigned to him by his superiors.
74      As regards, in the second place, his conduct described as uncooperative, the applicant disputes the comment in the 2018 appraisal report that he displayed little empathy and he was unable to build an employment relationship based on trust with his colleagues.
75      However, it is apparent, first, from the contribution of 28 February 2019 of the coordinator for [confidential] (‘[confidential]’) that it was impossible for the coordinator to establish a professional relationship of trust with the applicant and that the latter communicated with him only by email and, second, from the contribution of the [confidential] coordinator that she had the impression that the applicant reacted to written instructions from a superior, but that when it was a member of his team who asked him to cooperate, it was more difficult.
76      It follows from the foregoing that the assessment made of the applicant concerning his behaviour and conduct in the service in the section relating thereto in the 2018 appraisal report is not vitiated by a manifest error of assessment.
77      Accordingly, the first part of the first plea must be rejected as unfounded.
(2)    The second part of the first plea, alleging a manifest error of assessment of the applicant’s ability to prioritise and observe deadlines
78      The applicant disputes the assessments set out in Section 3.1 ‘Efficiency’ of the 2018 appraisal report, according to which he misprioritised tasks, favouring more his ‘horizontal work’ for financial stability rather than resolution planning, and the conclusions set out in Section 3.7 ‘General Comment/Dialogue’ of the 2018 appraisal report, according to which there was still room for him to improve or develop certain skills, particularly in the area of prioritisation based on the mandates of the units.
79      However, he does not provide in support of his claims any evidence to demonstrate that he prioritised his tasks and favoured resolution rather than planning and that the SRB was wrong to consider that there was still room for him to develop his prioritisation skills.
80      In that regard, although the applicant claims that the banks to which he was assigned changed three times during the first week after his recruitment, which allegedly added some uncertainty as to the definition of priorities, he does not establish this. In any event, since the applicant took up his post on 1 November 2017, any change in the banks assigned to him during the first week after his appointment could not have had any impact on the appraisal of prioritisation during 2018 made in the 2018 appraisal report.
81      As regards the alleged lack of professional objectives and a job description despite the applicant’s requests, it should be pointed out in relation to that complaint, which will be dealt with in greater detail in the context of the second plea, that there were such objectives and such a description and that they were known to the applicant and that that claim is, for the reasons set out in the examination of that plea, unfounded.
82      As regards the expert groups in which he claims he was asked by his reporting officer to take part and in respect of which he claims to have received praise from the acting head of unit during the appraisal period, it should be noted that it was the applicant himself who requested, as is apparent from an email of 8 March 2018, to join the SRB’s Financial Stability Expert Network and not his reporting officer who asked him to do so.
83      Moreover, contrary to what the applicant claims, it is not apparent from the file produced before the Court that he received praise for his contribution to that expert group. More specifically, it is apparent from Annex A.19 to the application that a request was sent to him by his superiors to share with his colleagues the PowerPoint presentation that he had made in the context of that expert group.
84      As regards the applicant’s inability to perform certain tasks within the time limits set, it must be held that none of the evidence produced by the applicant demonstrates that he complied with the time limits and that the claims made by his superiors in that regard are incorrect.
85      It is true that, as regards the [confidential] cover note, the applicant ultimately circulated that note on 29 November 2018, while the deadline had been extended until 7 December 2018. Nevertheless, it is apparent from Annex B.6 to the defence that on 29 November 2018 the applicant had requested an extension of the deadline until 10 December 2018. Furthermore, the applicant had provided only a draft note to be revised and finalised by a colleague, who, according to the emails reproduced in that annex, made substantive changes.
86      Similarly, although the applicant claims that he submitted the assessment of the [confidential] recovery plan for 2017 on time, it is apparent from the contribution of the coordinator for that plan, in an email of 5 March 2019, that, although the applicant provided the first draft, the other colleagues dealt with the comments, and that he had a tendency to delegate his tasks to other colleagues when he did not receive specific instructions.
87      A finding of the same type was made by the coordinator for [confidential], as is apparent from his contribution in an email of 28 February 2019, in which he stated that the applicant had difficulties in working on different projects at the same time and that when he met deadlines, it was without regard for the quality of the output.
88      In the light of the foregoing, it must be concluded that the assessment made of the applicant in the 2018 appraisal report concerning his efficiency in the service, and in particular his inability to prioritise and to comply with the time limits set, is not vitiated by a manifest error of assessment.
89      Accordingly, the second part of the first plea must be rejected as unfounded.
(3)    The third part of the first plea, alleging a manifest error of assessment of the applicant’s ability
90      The applicant disputes the comment made in Section 3.2 ‘Ability’ of the 2018 appraisal report by his reporting officer, who stated that, in her role as head of unit, she found that the applicant’s ability to use the expertise he has for resolution planning throughout the year was average, whilst his willingness or ability to cooperate with colleagues in a trustful manner was low.
91      According to the applicant, the 2018 appraisal report is contradictory in so far as his reporting officer states that he did not perform sufficiently, while referring to his expertise in Section 3.1 ‘Efficiency’ of the 2018 appraisal report, to his abilities in Section 3.2 ‘Ability’ of that report, to his solid experience in Section 3.5 ‘Level of responsibilities exercised’ of that report, to his overall qualities for the position in Section 3.7 ‘General comment/Dialogue’ and to his seniority in Section 3.1 ‘Efficiency’.
92      In that regard, it must be stated that, although the 2018 appraisal report contains positive comments on the applicant’s performance, such as those mentioned by the applicant in his pleadings, that does not render implausible the final assessment made by his superiors of his performance as unsatisfactory.
93      Although the reporting officer acknowledged the applicant’s qualities for the post concerned and his technical abilities, his level of expertise is not, contrary to what the applicant submits, inconsistent with the final assessment made by the reporting officer, according to which the applicant’s performance, in view of his abilities and his level of expertise, was unsatisfactory in relation to the post occupied, in other words, to what his superiors expected of him. It is sufficient, in order to dispel any doubts in this regard, to refer to the assessments made by his superiors of his efficiency in the service.
94      As regards the applicant’s unwillingness or inability to cooperate with his colleagues, it is apparent from the file that that assessment is not vitiated by a manifest error of assessment, as is apparent from paragraphs 75 and 76 above.
95      Accordingly, the third part of the first plea must be rejected as unfounded.
(4)    Fourth part of the first plea, alleging a manifest error in the assessment made under the Section ‘Learning and Development’
96      The applicant disputes the assessment of his performance in Section 3.6 ‘Learning and Development’ of the 2018 appraisal report, according to which his choice of timings for training courses did not always take into account the work that he had to do and to which, moreover, he followed training courses without informing the coordinators or his head of unit.
97      However, the applicant has failed to establish that that assessment is manifestly incorrect.
98      Although the applicant claims that the large majority of the training courses which he followed were mandatory SRB training courses, he does not establish this and submits, as is apparent from Annex A.29, in support of his claims, only a simple table of the training courses that he followed and, in particular, does not provide any official certificate of the courses followed by the bodies which delivered them.
99      In addition, the SRB submits that only a limited number of training courses are considered mandatory within the SRB and that these are training courses on ethics and integrity, information sessions for new employees, training courses on respect and dignity at work and a limited number of IT sessions that are required to use SRB-specific tools.
100    Lastly, although the applicant states, as regards the other courses followed, that his reporting officer was systematically informed when he signed up for them, the SRB observes that 40 out of the 48 training courses attended by the applicant did not require the approval of his head of unit. In any event, the applicant does not prove that he kept his head of unit informed of each training course in good time.
101    It follows from all the foregoing that, contrary to what the applicant claims, most of the training courses followed was not compulsory and did not necessarily meet with the approval of his superiors.
102    Accordingly, the fourth part of the first plea must be rejected as unfounded.
(5)    The fifth part of the first plea, alleging a manifest error of assessment of the applicant’s language skills
103    The applicant challenges the assessment of his performance by his reporting officer in Section 3.4 ‘Use of languages’. He claims that she did not fully assess his language skills, despite the European Personnel Selection Office (EPSO) certificates that he had provided.
104    However, it is apparent from the 2018 appraisal report that his reporting officer expressly mentioned that the applicant uses proficient English in both oral and written communication and that being a native German speaker is an advantage for the resolution planning of [confidential] in Unit [confidential].
105    It follows that the applicant’s claim that his linguistic abilities were not assessed in the 2018 appraisal report is manifestly incorrect or even lacking any factual basis.
106    Nor has the applicant established that the assessment made by his superiors of his linguistic abilities is vitiated by a manifest error of assessment. In that regard, it should be noted, in particular, that the applicant has failed to show that he used French or Spanish in the course of his duties during the appraisal period.
107    Accordingly, the fifth part of the first plea must be rejected as unfounded.
(6)    The sixth part of the first plea, alleging failure to take into account some of the responsibilities exercised by the applicant
108    The applicant claims that, in the 2018 appraisal report, the responsibilities which he agreed to assume by representing his unit in multiple SRB and Single Resolution Mechanism expert groups were not appraised.
109    It should be borne in mind that, even though the primary function of an appraisal report is to provide the administration with periodic information, which is as complete as possible, on the performance of their duties by its officials and members of staff, reporting officers are not, according to the case-law referred to in paragraph 65 above, obliged to include in the appraisal report all the relevant factual and legal elements supporting their appraisal, provided that, under Article 2(3) of the GIPs, the conclusion that the jobholder’s performance has been unsatisfactory is based on factual elements, which was the case in this instance.
110    As regards the lack of any mention in the 2018 appraisal report of the expert groups in which the applicant participated, as the SRB rightly observes, it was the applicant himself who took the initiative, as recalled in the email of 8 March 2018, to join the SRB’s Financial Stability Expert Network and who asked his superiors, in July 2018, whether he could continue to participate in that network, even though those expert groups were not part of his core tasks.
111    As regards the responsibilities exercised by the applicant, it is sufficient to note, first, that those relating to his core tasks were evaluated by his superiors, who considered them, in their final conclusion, unsatisfactory in the light of the applicant’s ability, level of expertise and experience, and, second, that the evidence adduced by the applicant is not sufficient to render the assessments made by the administration implausible.
112    It follows that the complaint alleging that the reporting officer’s assessment of the responsibilities exercised by the applicant is vitiated by a manifest error of assessment cannot succeed.
113    Accordingly, the sixth part of the first plea must be rejected as unfounded.
114    Since none of the six parts of the first plea is well founded, the first plea must be rejected.
(b)    Second plea: lack of professional objectives and a job description
115    The applicant submits that despite his repeated requests he never received and never bilaterally agreed with the reporting officer on his professional objectives for 2018.
116    He states that after recruitment he was assigned to a position different from the one he had applied for and signed an employment contract, on [confidential], as [confidential], without ever being provided with any job description.
117    He claims that, in April 2018, no objectives had yet been set, since he had still not received his 2017 appraisal report, and that in December 2018 he had still not received his 2017 appraisal report and no professional objectives had by then been bilaterally agreed. According to the applicant it was difficult for him to have any clear idea of what the SRB expected from him.
118    The applicant challenges the claim in the 2018 appraisal report that he failed to integrate and observes that the denial of a job description or of clear objectives jeopardises integration efforts.
119    The SRB refutes the applicant’s arguments.
120    As a preliminary point, it should be borne in mind that the infringement of the rules requiring the setting of objectives for an official or a member of staff at the beginning of each appraisal period is substantial and warrants a declaration that the contested appraisal report is unlawful (see, to that effect, judgments of 30 September 2009, Skareby v Commission, T‑193/08 P, EU:T:2009:377, paragraphs 71, 74 and 75, and of 18 September 2015, Wahlström v
Frontex, T‑653/13 P, EU:T:2015:652, paragraph 48).
121    The applicant claims that his head of unit never set any professional objectives for 2018 or provided a description of his job at the time of his recruitment. He submits that he himself drafted a proposal for professional objectives for 2018, but, having received no response from his head of unit, those objectives were not agreed bilaterally and were therefore not finalised.
122    In that regard, it is apparent from an email of 1 February 2018, sent by the head of unit to all the members of her unit, including the applicant, that she had drafted objectives for each of them and that she had circulated those objectives, indicating to them in the same email that those objectives would be discussed at the next unit meeting.
123    It should be noted that that meeting was held the following day, on 2 February 2018, and that, during that meeting, all the members of the unit were able to discuss their professional objectives. In addition, by the head of unit’s email of 9 February 2018, the members of the unit were invited to review their professional objectives and to send any additional objectives by 13 February 2018, which the applicant did on 14 February 2018.
124    Thus, contrary to what the applicant claims, his professional objectives had been set from the beginning of 2018. In those circumstances, the complaint alleging failure to set professional objectives must be rejected as having no factual basis during the appraisal exercise in question. If his professional objectives were set in consultation with his head of unit, they were necessarily known to him.
125    As regards the second complaint, alleging the lack of a job description, it is true that the post for which the applicant was recruited was not that for which he had initially applied. Nevertheless, it is sufficient, in order to reject that complaint, to note that the applicant received, by email of 23 July 2017, an offer of employment and a description of the post [confidential] in the unit in which he finally took up his duties and that he accepted that offer [confidential]. Accordingly, the applicant became aware, on that occasion, of the objectives assigned to the members of the unit which he joined as set out in the job description. Moreover, it should be noted that, in his email of 24 July 2017, the applicant confirmed that the tasks outlined in the email of 23 July 2017 were fine for him and that he was glad to be entrusted with them. Accordingly, that second complaint cannot succeed.
126    In view of the foregoing considerations, the second plea in law must be rejected.
(c)    The third plea: alleging breach of the principle of impartiality and of the GIPs
127    The applicant submits that the subsection, in the 2018 appraisal report, on [confidential] resolution planning was drafted by someone other than his reporting officer.
128    He challenges the comments made about his involvement in the public interest assessment for subsidiaries and in the financial continuity and loan/deposit ratio quality checks, which was rated as average, as was the quality of his work, and about his consideration of the peculiarities of national insolvency procedures, which was regarded as not being sufficiently detailed.
129    According to the applicant, that assessment is contradicted by the fact that his contribution to [confidential] resolution planning was praised at the time of delivery by all recipients, including the person who drafted the abovementioned comments in the appraisal report.
130    The applicant states that that person had a conflict of interests in the applicant’s appraisal, being eligible for reclassification at the same time as the applicant, and that the person was subsequently promoted in July 2019.
131    So far as the applicant is concerned, the choice of that third party to conduct his appraisal constitutes a breach of the right of every person to have his or her affairs handled impartially, guaranteed by Article 41 of the Charter of Fundamental Rights of the European Union.
132    The applicant notes that Article 3(4) of the GIPs provides for the intervention of a third person in an appraisal only in units comprising more than 20 staff members. However, according to the applicant, first, his unit had fewer than 20 staff members, second, the reporting officer did not officially delegate her role as reporting officer to someone else and, lastly, third, she did not formally notify the applicant.
133    The SRB refutes the applicant’s arguments.
134    It should be recalled that Article 15(2) of the CEOS provides that ‘the provisions of Article 43 of the Staff Regulations, concerning reports, shall apply by analogy’.
135    As mentioned in paragraph 9 above, the detailed rules for the application of Article 43 of the Staff Regulations were established by the decision of the SRB of 25 March 2015 laying down the GIPs for Article 43 of the Staff Regulations and implementing the first paragraph of Article 44 of the Staff Regulations for temporary staff.
136    Furthermore, it should be noted that a decision of an institution which is communicated to all its staff and seeks to ensure that the officials concerned are treated identically with regard to the reporting procedure is, even if it cannot be regarded as a general implementing provision within the meaning of Article 110 of the Staff Regulations, an internal directive and must, as such, be regarded as an indicative rule of conduct which the administration imposes upon itself and from which it may not depart without stating the reasons which have led it to do so, since otherwise the principle of equal treatment would be infringed (see judgment of 30 September 2003, Tatti v Commission, T‑296/01, EU:T:2003:252, paragraph 43 and the case-law cited).
137    Furthermore, it must be borne in mind that, according to the case-law, the primary function of an appraisal report is to provide the administration with periodic information, which is as complete as possible, on the performance of their duties by its officials and members of staff. An appraisal report cannot really fulfil that role if the superiors under whose orders the member of staff concerned has performed his or her duties are not first consulted by the assessor and given an opportunity to submit any comments (see, to that effect, judgments of 12 May 2011, AQ v Commission, F‑66/10, EU:F:2011:56, paragraph 59, and of 13 September 2011, Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 85).
138    It is also clear from case-law that only the involvement of managers in the professional activities of the staff members reporting to them enables the former to make the most appropriate assessment possible of the activities of the persons under them. In that regard, it has been held that acceptance of an argument whereby neither the head of unit nor any member of the management of the department to which a staff member is assigned should take part in the appraisal procedure would lead to a situation in which a proper assessment of the performance of the staff member and of his or her conduct in the service would not be ensured (see judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 95 and the case-law cited).
139    As regards, in the first place, the complaint alleging that the subsection in the 2018 appraisal report on [confidential] resolution planning was drawn up by a person other than the reporting officer, it must be noted that she asked the coordinators with whom the applicant was working to give their views on his performance during the appraisal period. In that context, the [confidential] coordinator, who was also the person responsible for coordinating the work of the unit during the reporting officer’s maternity leave, and the coordinator for [confidential] were requested, as is apparent from Annexes B.2 and B.3 to the defence, to give an opinion on the quality of the applicant’s performance. Such a consultation of coordinators who worked directly with the applicant is indeed consistent with sound administrative practice, in accordance with the case-law referred to in paragraphs 137 and 138 above, aimed at making the most appropriate assessment possible of the applicant’s activities and skills.
140    Moreover, it should be noted that the reporting officer was absent from August to December 2018, during which period the [confidential] coordinator was acting as head of unit, so that the reporting officer was all the more justified in obtaining the observations of the two coordinators in order to draw up the 2018 appraisal report.
141    The applicant’s argument that, first, Article 3(4) of the GIPs does not provide for the involvement of a third person for the appraisal, except in units with more than 20 staff members, whereas there were fewer than 20 in his unit, second, the reporting officer had not officially delegated her role as reporting officer to another person and, third, she had not formally notified the applicant, cannot succeed, since, although Article 3(4) of the GIPs does not provide for the intervention of a third person in the appraisal, except in units with more than 20 staff members, its provisions do not preclude such intervention in absolute terms.
142    The drafting of the appraisal report was the sole responsibility of the reporting officer and, even though, in the circumstances of the present case, she was entitled to request contributions from the applicant’s two coordinators, it was for her to assess those contributions and, where appropriate, to take them into account when drawing up that report. The applicant has not adduced any prima facie evidence of his claim that part of his appraisal report was drawn up by a person other than the reporting officer.
143    Accordingly, the first complaint must be rejected as unfounded.
144    As regards, in the second place, the complaint alleging subjective impartiality on the part of the coordinator for [confidential], who allegedly had a conflict of interests linked to the fact that he was eligible for reclassification at the same time as the applicant, it is appropriate to examine its merits.
145    In that regard, it should be borne in mind that the right to have one’s affairs handled impartially by the institutions of the European Union, guaranteed by Article 41(1) of the Charter of Fundamental Rights, is a general principle of EU law (see, to that effect, judgment of 20 December 2017, Spain v Council, C‑521/15, EU:C:2017:982, paragraphs 88 and 89), and that, according to the case-law, the principle of good administration means inter alia the obligation on the competent institution to examine all the relevant particulars of the case concerned with care and impartiality (see, to that effect, judgment of 8 June 2017, Schniga v CPVO, C‑625/15 P, EU:C:2017:435, paragraph 47).
146    Further, the requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as the institution concerned must offer sufficient guarantees to exclude any legitimate doubt as to any possible bias (judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155; of 20 December 2017, Spain v Council, C‑521/15, EU:C:2017:982, paragraph 91; and of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 27).
147    It is also settled case-law that subjective impartiality is presumed in the absence of evidence to the contrary (see judgment of 27 November 2018, Mouvement pour une Europe des nations et des libertés v Parliament, T‑829/16, EU:T:2018:840, paragraph 49 and the case-law cited).
148    The applicant submits, in response to a written question put by the Court in the context of measures of organisation of procedure, that, in 2019, both the coordinator for [confidential] and he were eligible for reclassification and that a limited number of members of staff could actually be reclassified, and therefore that they were both competitors. It follows, according to the applicant, that the coordinator had an interest in contributing to and aggravating a negative report, reducing the applicant’s chances of being reclassified and thus increasing his own chances of reclassification.
149    In that regard, the Court finds that the terms of the contribution made by email of 1 March 2019 by the coordinator for [confidential] to the head of unit for the applicant’s 2018 appraisal report are neutral and objective and do not reveal in the terminology used any malicious intent on the part of the coordinator for [confidential] to harm the applicant.
150    In addition, as the SRB rightly observes, the contribution of the coordinator for [confidential] was examined by the reporting officer before it was taken into account in the 2018 appraisal report. That report was subsequently confirmed by the countersigning officer and then, lastly, by the appeal assessor, with the result that persons other than that third party whose impartiality is challenged by the applicant verified and examined the assessment contained in the subsection at issue of the 2018 appraisal report.
151    In the circumstances of the present case, no breach of the principle of impartiality in the drawing up the 2018 appraisal report can therefore be established, since no evidence to the contrary has been adduced by the applicant.
152    Accordingly, the second complaint must be rejected as unfounded.
153    In view of the foregoing considerations, the third plea in law must be rejected.
(d)    The fourth plea: alleging breach of Article 5 of the GIPs and of the duty to have regard for the welfare of staff
154    The applicant claims that, in accordance with Article 5 of the GIPs, the context and his situation should have been taken into account in his appraisal but were not.
155    The applicant states that he had not been provided with any bilaterally agreed professional objectives or with any applicable job description, which had a detrimental effect on the context in which he had to perform his duties.
156    The applicant claims moreover that the SRB could not have been unaware of his very fragile situation since, following his return from medically certified sick leave, he had lodged a request for assistance pursuant to Article 24 of the Staff Regulations, directed against the abuse and discrimination he considered he had suffered since [confidential] by the reporting officer.
157    He states that as early as [confidential] he also informed Human Resources, orally and in writing, that the situation was damaging his health, and asked to be placed under the authority of another head of unit.
158    The applicant claims that he requested on several occasions to be accompanied by a third person during his appraisal dialogue, to avoid having a bilateral meeting in a closed room with his reporting officer, and to be transferred to another unit in order to no longer be under the authority of his reporting officer.
159    In the applicant’s view, by failing to act, the SRB failed in its duty of care.
160    The SRB refutes the applicant’s arguments.
161    First of all, the complaint alleging a lack of any professional objectives agreed bilaterally and of a job description cannot succeed for the reasons set out in paragraphs 122 to 126 above.
162    Next, as regards the administration’s duty to have regard for the welfare of its staff, it should be noted that that concept, as developed in the case-law of the Court of Justice, reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between a public authority and public servants. A particular consequence of this balance is that when the administration takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service but also those of the official concerned (judgments of 28 May 1980, Kuhner v Commission, 33/79 and 75/79, EU:C:1980:139, paragraph 22, and of 29 June 1994, Klinke v Court of Justice, C‑298/93 P, EU:C:1994:273, paragraph 38).
163    In the present case, first, it is common ground that the applicant requested that a third person be present during the appraisal dialogue and that his request was granted by the reporting officer on [confidential], with the result that the appraisal dialogue took place on 11 March 2019 in the presence of an independent observer, a member of the SRB’s Staff Committee. Second, it is also common ground that the applicant submitted his request for assistance on [confidential], that is to say, after the appraisal dialogue which took place on 11 March 2019, the signing of the 2018 appraisal report by the reporting officer on 14 March 2019, and the confirmation of that report by the countersigning officer on 21 March 2019. In addition, following his request for assistance, the SRB decided to transfer the applicant to another unit, with effect from [confidential], as is apparent from the email of 8 May 2019 from the head of the Human Resources Unit.
164    Furthermore, although the applicant claims, in response to a written question from the Court, that the possibility, provided for by Article 3 of the GIPs, of requesting that a person other than his head of unit be entrusted with the drafting of his 2018 appraisal report remains in practice purely theoretical and that, despite his repeated requests from February to September 2019, he was unable to avail himself of that possibility, he does not demonstrate that he formally submitted such a request for derogation in the context of the process of the drawing up of his 2018 appraisal report, notwithstanding the fact that he challenged in his complaint of 12 September 2019 the managerial and appraisal powers assigned to his head of unit.
165    The various relevant documents in that regard which the applicant produced in support of his claims, in response to a question put by the Court by way of measures of organisation of procedure, namely a formal request sent in May 2019 to those responsible for compliance within the SRB, the [confidential], the [confidential] and the [confidential], an email of 12 July 2019 to the [confidential] and the [confidential] at the SRB, and an email of 15 July 2019 to the [confidential], with the [confidential] in copy, are subsequent to the date on which the appraisal report was validated by the countersigning officer, namely on 21 March 2019.
166    Lastly, although the applicant claims that the SRB did not take sufficient account of his situation when drawing up the 2018 appraisal report, and, in particular, his state of health, he has not established that the SRB was duly informed of that situation by means, in particular, of medical certificates and that it did not take sufficient account thereof.
167    In those circumstances, the complaint alleging breach of Article 5 of the GIPs and of the duty to have regard for the welfare of staff must be rejected as unfounded.
168    Having regard to the foregoing considerations, the fourth plea in law must be rejected.
(e)    The fifth plea: alleging breach of the right to a fair hearing
169    By the fifth plea, raised at the hearing, which was held to be admissible in paragraphs 29 to 34 above, the applicant alleges breach of his right to a fair hearing.
170    In that regard, it must be borne in mind that the purpose of the first paragraph of Article 26 of the Staff Regulations, applicable to members of the temporary staff under Article 11 of the CEOS, is to guarantee an official’s right to a fair hearing by ensuring that decisions taken by the administration affecting his or her administrative status and his or her career are not based on matters concerning his or her ability, efficiency and conduct which are not included in his or her personal file. A decision based on such factual matters is therefore contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality (see judgment of 13 December 2005, Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, paragraph 50 and the case-law cited).
171    In the present case, it is admittedly common ground that those emails were not placed on the applicant’s personal file.
172    However, it is settled case-law that the mere fact that documents referred to in Article 26 of the Staff Regulations were not placed on the personal file is not such as to justify annulment of a decision if they were in fact brought to his or her knowledge. It is only where documents concerning his or her ability, efficiency or conduct have not previously been communicated to an official that they cannot be used against him or her. This is not the case as regards documents which, although brought to his or her knowledge, have not yet been placed on his or her personal file, since the administration cannot be prevented from taking a decision in the interests of the service on the basis of documents previously communicated to the person concerned merely because they have not been placed on his or her personal file (see judgment of 13 December 2005, Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, paragraph 51 and the case-law cited).
173    It follows that an EU institution, body, office or agency commits an infringement of Article 26 of the Staff Regulations and of an official’s right to a fair hearing where it adopts a decision adversely affecting him or her without having previously communicated to him or her the factual matters, not included in his or her personal file, which justify the adoption of that decision. In that regard, it must be pointed out that the mere establishment that the official concerned knew of these matters cannot be regarded as sufficient evidence that he or she had the opportunity effectively to defend his or her interests prior to the adoption of the decision adversely affecting him or her. In order for the observance of his or her right to a fair hearing to be ensured, the institution, body, office or agency must still demonstrate, by any means, that it had previously enabled the official concerned to understand that the factual matters in question, although not placed on his or her personal file, were such as to justify the decision adversely affecting him or her. Failing that, the communication required by Article 26 of the Staff Regulations cannot be deemed to have taken place (judgment of 13 December 2005, Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, paragraph 52).
174    It is apparent from the file that, although the contributions of the two coordinators were not included as such in the applicant’s personal file, their content was in fact brought to his attention before the 2018 appraisal report was drawn up, as he expressly admitted at the hearing.
175    In that regard, it should be noted that the initial appraisal report expressly states that the reporting officer took into account the comments of the two coordinators on the applicant’s performance, so that he was necessarily aware, from the time of the initial appraisal report drawn up by the reporting officer, of the existence of the contributions at issue, the identity of their authors and the matters taken into account by the reporting officer when drawing up the appraisal report. Their inclusion in the initial appraisal report meant the applicant was in a position to make known his views on all those matters before the appeal assessor.
176    Moreover, as early as the appeal lodged against the initial appraisal report, the applicant contested the involvement of one of the coordinators in the drawing up the appraisal report at issue, on the ground of that person’s alleged conflict of interests.
177    Accordingly, the plea raised by the applicant at the hearing alleging breach of the right to a fair hearing cannot succeed, inasmuch as, during the appraisal procedure, the applicant was in a position to acquaint himself with and discuss the substantive content of the material at issue and which was taken into account for the purposes of the drawing up of the 2018 appraisal report.
178    In the light of the foregoing considerations, the fifth plea in law must be rejected, as, therefore, must the claim for annulment in its entirety, since none of the pleas in law put forward by the applicant is well founded.
2.      The claim for damages
179    The applicant claims that the Court should order the SRB to pay him ex aequo et bono the sum of EUR 15 000 in compensation for the non-material damage he considers he suffered.
180    He maintains that his negative 2018 appraisal report, drafted by a third party who had a conflict of interests, and the harassment he alleges he endured from the reporting officer from [confidential] caused him a high level of stress, that he was [confidential] declared [confidential] of returning to work in [confidential] and that eventually he had no choice but to resign.
181    Moreover, the applicant claims that the Court should order the SRB to pay him the sum of EUR 2 322, corresponding to the salary differential over 12 months between grades [confidential] and [confidential], plus the expatriation allowance and the household allowance.
182    The SRB refutes the applicant’s arguments and contends that the Court should reject his claims for damages.
183    It should be borne in mind that, according to settled case-law, in the context of a claim for damages made by an official or servant, the institution can be held liable in damages only if a number of conditions are satisfied: the illegality of the allegedly wrongful act committed by the institution, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered. The three conditions for liability are cumulative, which means that where one of them is not met, the institution cannot be held liable (judgments of 16 December 1987, Delauche v Commission, 111/86, EU:C:1987:562, paragraph 30, and of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 122).
184    Where the European Union acts as an employer, it is required to make good damage caused to its staff by any illegality committed in its capacity as an employer (see, to that effect, judgment of 16 December 2010, Commission v
Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 46).
185    In the present case, the applicant is not justified in claiming that the 2018 appraisal report is vitiated by manifest errors of assessment, failure to set professional objectives and to provide a job description, breach of the GIPs, the principle of impartiality and the duty to have regard for the welfare of staff.
186    In the light of those factors, the first condition for the European Union to incur non-contractual liability referred to in paragraph 183 above is not satisfied as regards the alleged unlawfulness.
187    Consequently, the claim for damages must be rejected.
IV.    Costs
188    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the SRB.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders JS to pay the costs.
da Silva Passos
Valančius
Sampol Pucurull
Delivered in open court in Luxembourg on 19 October 2022.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.