JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

7 July 2009

Joined Cases F-99/07 and F-45/08

Marjorie Danielle Bernard

v

European Police Office (Europol)

(Civil service – Staff of Europol – Reports procedure – Appraisal report – Advancement in step – Competence of the author of the measure – Admissibility – Withdrawal of a decision – Absence of a prior complaint)

Applications: brought under Article 40(3) of the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention), and Article 93(1) of the Staff Regulations applicable to Europol employees, in which Ms Bernard seeks: in Case F-99/07, first, annulment of the appraisal reports of 5 February 2007 and 25 July 2007 and of the rejection of her complaint of 26 June 2007, second, an order that Europol, first, pay her an increase in monthly salary with effect from 1 September 2006, together with interest, and second, pay her damages in the amount of EUR 7 500; in Case F-45/08, annulment of the appraisal report of 25 July 2007 and of Europol’s implied decision rejecting her complaint of 23 October 2007, and an order that Europol pay her damages in the amount of EUR 7 500.

Held: The applicant’s appraisal report of 25 July 2007 is annulled. Europol is ordered to pay the applicant damages of EUR 3 000. The remainder of the application in Case F-99/07 Bernard v Europol is dismissed. There is no need to adjudicate on the application in Case F-45/08 Bernard v Europol. Europol is ordered to pay all the costs in Case F‑45/08 Bernard v Europol and to bear its own costs and to pay four fifths of the applicant’s costs in Case F‑99/07 Bernard v Europol. The applicant is to bear one fifth of her own costs in Case F‑99/07 Bernard v Europol.

Summary

1. Officials – Staff of Europol – Two-yearly incremental points

(Europol Staff Regulations, Arts 28 and 29)

2. Officials – Actions – Unlimited jurisdiction – Dispute of a financial character within the meaning of Article 93 of the Europol Staff Regulations

(Europol Staff Regulations, Art. 93)

3. Officials – Reports procedure – Internal Europol directive relating to the appraisal of staff – Legal consequences

(Europol Staff Regulations, Arts 28 and 29)

4. Officials – Reports procedure – Internal Europol directive relating to the appraisal of staff – Infringement

(Europol Staff Regulations, Arts 28 and 29)

5. Officials – Reports procedure – Appraisal report – Obligation to set goals – Scope

6. Officials – Actions – Actions for damages – Annulment of the contested measure not adequate compensation for non-material harm

(Europol Staff Regulations, Art. 93)

1. An appraisal report not from the Director of Europol, who is competent to award an advancement in step, but from a reporting officer, who is competent to produce an appraisal, cannot in any way be regarded, even by implication, as an initial decision refusing an advancement in step, since those two types of decision serve a completely different purpose and come under two different competent authorities.

(see para. 54)

See:

F‑121/06 Spee v Europol [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 40

2. In disputes of a financial character, the Civil Service Tribunal has unlimited jurisdiction pursuant to the provisions of Article 93 of the Europol Staff Regulations, which permits it to order the defendant institution to pay specific amounts plus interest when appropriate.

An application seeking payment of an increase in salary, with default interest, does not constitute a claim seeking the issue of directions, but a pecuniary claim.

(see paras 57-58)

See:

T-197/98 Rudolph v Commission [2000] ECR-SC I‑A‑55 and II‑241, paras 33 and 92

3. A decision of a Community institution communicated to all its staff and intended to guarantee the officials concerned the same treatment regarding the reporting procedure constitutes an internal directive and must, as such, be regarded as a rule of conduct, indicating the practice to be followed, which the administration imposes on itself and from which it may not depart without specifying the reasons for doing so, since otherwise the principle of equality of treatment would be infringed.

Guidelines setting out rules for the drafting of the appraisal report within Europol constitute such an internal directive. Thus, where an internal directive provides that the appraisal report must be drawn up and signed by the staff member’s immediate hierarchical superior, the drafting and signing of the report by the countersigning officer, particularly where not authorised to do so, constitutes an infringement of that directive.

Although a decision taken by an authority not competent to do so, because of failure to observe the rules on the separation of powers, can be annulled only if the failure to observe those rules adversely affects one of the guarantees given to officials by the Staff Regulations or the principles of good administration in staff management, the purpose of the guidelines relating to the process for staff career development and appraisal is to provide the administration with periodic information, which is as complete and accurate as possible, on the performance of their duties by the officials appraised and to ensure that the appraisal is drawn up by those most familiar with the officials’ work who are therefore best placed to set their goals. Those provisions are therefore intended to promote good administration in staff management, and failure to comply with them is, generally, capable of leading to the annulment of an appraisal report which has been drawn up and signed by the countersigning officer.

(see paras 79, 80, 83-85, 87-88)

See:

T-165/01 McAuley v Council [2003] ECR I‑A‑193 and II‑963, para. 44; T-165/04 Vounakis v Commission [2006] ECR-SC I‑A‑2‑155 and II‑A‑2‑735, paras 45-50

F‑108/06 Diomede Basili v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 61 and 62

4. In certain circumstances the administration may depart from the rules laid down by an internal directive if there is objective justification for doing so. However, the fact that a member of the Europol staff was placed under the direct authority of three different hierarchical superiors during the assessment period and that the appraisals of those superiors were disputed is not such as to justify the fact that the appraisal report was drawn up in breach of point 8 of the guidelines on the process for staff career development and appraisal, the second paragraph of which is specifically designed to govern situations where a staff member works under the responsibility of more than one immediate hierarchical superior within the same assessment period.

Furthermore, the fact that a staff member’s various hierarchical superiors have produced different appraisals cannot, in general, constitute a reason justifying failure to comply with the rule laid down in the guidelines that the staff member’s most recent hierarchical superior should draft the appraisal report, otherwise that rule would be rendered totally meaningless.

Consequently, in the absence of any objective justification for departing from the guidelines, an appraisal report adopted in breach of the rule laid down in the second paragraph of point 8 of those guidelines must be regarded as having been adopted by an authority lacking competence.

(see paras 89-91, 93)

See:

T-100/96 Vicente-Nuñez v Commission [1998] ECR-SC I‑A‑591 and II‑1779, paras 67-76; McAuley v Council, para. 45

F‑89/07 Kuchta v ECB [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 49-59

5. It is clear from the guidelines on the process for staff career development and appraisal that Europol has a duty, at the end of each assessment period, to set goals for the person occupying the post, which will then be used as a basis for drawing up the appraisal report for the following period. An assessment report drawn up without the staff member having previously been set such goals is unlawful.

(see paras 95, 96, 100)

6. The non-material damage caused to an official by an assessment report with serious flaws, in the present case the fact that it has been adopted by an authority lacking competence and without the official having been set goals to achieve, is not adequately and sufficiently compensated by the annulment of that report.

(see paras 104-106)

See:

T-16/03 Ferrer de Moncada v Commission [2004] ECR-SC I‑A‑261 and II‑1163, para. 68