JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

20 November 2007

Case T-205/04

Alessandro Ianniello

v

Commission of the European Communities

(Civil service – Officials – Career development report – 2001/2002 appraisal – Action for annulment – Action for damages)

Application: on the one hand, for annulment of the applicant’s career development report for the 2001/2002 appraisal and the decision of the appointing authority of 18 February 2004 rejecting his complaint, and, on the other, payment of compensation for the non-material damage suffered.

Held: The application is dismissed. Each party is ordered to bear its own costs.

Summary

1. Officials – Reports procedure – Observance of the rights of the defence

(Staff Regulations, Arts 26, first and second paras, and 43)

2. Officials – Reports procedure – Joint Evaluation Committee – Members of the Committee involved in drawing up a career development report precluded from taking part in consideration of its merits

(Staff Regulations, Art. 43)

3. Actions for annulment – Pleas in law

(Arts 230 EC and 253 EC)

4. Officials – Reports procedure – Staff report – Score not as high as previous report

(Staff Regulations, Art. 43)

5. Officials – Reports procedure – Staff report – Judicial review – Limits

(Staff Regulations, Art. 43)

6. Officials – Reports procedure – Staff report – Drawing up – Delay

(Staff Regulations, Art. 43)

1. In the field of the appraisal of European Communities staff the fundamental principle of observance of the rights of the defence must allow the individual concerned, during the appraisal procedure, to defend himself against any criticism of his conduct which might be taken into account. That purpose is given effect to, in particular, by the first and second paragraphs of Article 26 of the Staff Regulations and by the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, the provisions of which guarantee that the principle that both parties must be heard will be observed throughout that procedure.

(see para. 46)

See: T‑277/03 Vlachaki v Commission [2005] ECR-SC I‑A‑57 and II‑243, para. 64

2. In order to guarantee that the impartiality that must be shown in the performance of their duties by members of the Joint Evaluation Committee involved in the reports procedure for officials is not compromised, Article 8(6) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, requires members of that Committee to stand down and to be replaced by an alternate member if it appears that, in their capacity as assessor, countersigning officer or appeal assessor, they have interests which are incompatible with their position.

It follows that members of that Committee who are responsible for drawing up a career development report cannot attend meetings of the Committee when it examines a complaint against that report.

However, the mere fact that the countersigning officer for the report, who would be precluded under the abovementioned provisions from taking part in the Committee’s examination of that report, attended a meeting of the Committee at which it discussed whether to suspend its consideration of the appeal by the official assessed is not capable of calling the Committee’s impartiality into question, since no aspect relating to the substance of the appeal was examined during the meeting in question.

(see paras 70-72)

3. With regard to the pleas in law capable of being relied on in an action for annulment, a clear distinction must be made between one which alleges breach of the obligation to state reasons and another which alleges a manifest error of assessment. They are two distinct pleas. On the one hand, the former, alleging the absence of reasons or inadequacy of the reasons stated, goes to an issue of infringement of essential procedural requirements within the meaning of Article 253 EC and constitutes a matter of public interest which must be raised by the Court of its own motion. On the other hand, the latter, which goes to the substantive legality of the contested decision, can be examined by the Court only if it is raised by the applicant.

(see para. 92)

See: T-285/04 Andrieu v Commission [2006] ECR-SC I-A-2-161 and II-A-2-775, para. 90 and the case-law cited therein

4. The administration is obliged to state in a sufficient and detailed manner the reasons on which the staff report is based and to give the person concerned an opportunity to make observations on those reasons, compliance with those requirements being all the more important where the assessment shows a decline compared with the previous report.

The general comments accompanying the analytical assessments must enable the official reported on to assess the validity of those assessments with full knowledge of the facts and, where appropriate, must enable the Court to carry out its review, and to that end there must be consistency between the assessments and the comments justifying them.

(see paras 94-95)

See: T‑23/91 Maurissen v Court of Auditors [1992] ECR II‑2377, para. 41; T‑187/01 Mellone v Commission [2002] ECR-SC I‑A‑81 and II‑389, para. 27 and the case-law cited therein

5. It is not for the Court to substitute its assessment for that of the persons responsible for appraising the work of the official under appraisal. The institutions of the Community enjoy a wide discretion in appraising the work of their officials. Value judgements relating to officials in staff reports are not subject to review by the Court except as regards any irregularities of form or manifest errors of fact vitiating the assessments made by the administration or any misuse of power.

(see para. 100)

See: Andrieu v Commission, para. 99 and the case-law cited therein

6. In the absence of exceptional circumstances, a staff report cannot be annulled on the sole ground that it was drawn up late. Although delay in drawing up a staff report is capable of giving the official concerned a right to a remedy, such delay cannot affect the validity of the staff report or, in consequence, justify the annulment thereof.

(see para. 139)

See: T‑278/01 den Hamer v Commission [2003] ECR-SC I‑A‑139 and II‑665, para. 32 and the case-law cited therein