JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

19 September 2007

Case F-43/06

Tuomo Talvela

v

Commission of the European Communities

(Civil service – Officials – Assessment – Career development report – 2004 appraisal – Rights of the defence – Duty to state reasons in the report – Administrative investigation)

Application: brought under Articles 236 EC and 152 EA, in which Mr Talvela seeks, first, annulment of his career development report for the period from 1 January to 31 December 2004, of the implied decision to reject his request for the initiation of an administrative investigation, of any act subsequent and/or relating to that decision, and of the decision rejecting his complaint, and, secondly, payment of damages.

Held: The action is dismissed. Each party is 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 – Career development report – Obligation for the appraisal to cover the reference period

(Staff Regulations, Art. 43)

3. Officials – Reports procedure – Career development report – Assessment less favourable than in previous report

(Staff Regulations, Art. 43)

1. The fundamental principle that the rights of the defence must be observed cannot be interpreted, in the field of the appraisal of European Communities staff, as imposing any obligation to give prior warning before the procedure leading to such an appraisal. That finding is not affected by the first and second paragraphs of Article 26 of the Staff Regulations, which provide that reports on an official’s ability, efficiency and conduct may not be used against him unless they have been communicated to him before being placed on his personal file. Those provisions, the purpose of which is to guarantee the official’s right of defence, relate to documents which already exist. They preclude, during the appraisal procedure, such documents from being taken into account to the detriment of the official under appraisal without having been communicated to him before being placed on his personal file. However, they do not require documents containing any formal criticism of the conduct of the individual concerned to be prepared beforehand .

Thus a reporting officer does not infringe the principle of observance of the rights of the defence or Article 26 of the Staff Regulations by including in a career development report factual information which is unfavourable to the official under appraisal, without the official concerned having been formally notified of this in writing during the appraisal period and without any document recording that information in his personal file.

(see paras 57-59, 61)

See:

T-157/04 De Bry v Commission [2005] ECR-SC I‑A‑199 and II‑901, paras 39 to 41 and the case-law cited therein

2. When the career development report is drawn up, an appraisal is made of the official’s efficiency, ability and conduct in the service during the reference period. The appraisal must thus concern facts relating to that period. However, where there are problems which already existed before the reference period and which have persisted, a straightforward reference to those problems does not demonstrate that the appraisal has not been conducted on the basis of the assessment of the official’s efficiency, ability and conduct in the service during the reference period.

Furthermore, even if the career development report has been drawn up on the basis of an assessment of the official during the reference period, it does not appear inappropriate for the comments in that report to be able to refer to the previous period if that is useful for assessing any changes in the official’s efficiency, ability and conduct in the service during the reference period compared with that previous period. Particular care must be taken to provide a statement of reasons for a career development report which includes assessments that are less favourable than those in a previous career development report.

(see paras 72, 75-76)

See:

T-33/91 Williams v Court of Auditors [1992] ECR II‑2499, paras 70 and 71; T‑212/97 Hubert v Commission [1999] ECR-SC I‑A‑41 and II‑185, para. 95; T‑187/01 Mellone v Commission [2002] ECR-SC I‑A‑81 and II‑389, para. 49; T‑16/03 Ferrer de Moncada v Commission [2004] ECR-SC I‑A‑261 and II‑1163, para. 53; T-73/05 Martin Magone v Commission [2006] ECR-SC I-A-2-107 and II-A-2-485, para. 26; T-182/04 Van der Spree v Commission [2006] ECR‑SC I-A-2-205 and II-A-2-1049, para. 83

3. The administration is obliged to state in a sufficient and detailed manner the reasons on which the career development 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. Particular attention must also be paid to the statement of reasons where the report includes appraisals which are less favourable than those in a previous report.

The purpose of the descriptive comments in a staff report is to justify the analytical assessments. Those comments serve as the basis for establishing the marking and enable the official to understand the marking awarded. Consequently, in the light of their predominant role in the establishment of the career development report, the comments must be consistent with the marks awarded, to such an extent that the marking must be regarded as a quantified or analytical transcription of the comments.

(see paras 91-92)

See:

Ferrer de Moncada v Commission, para. 53; De Bry v Commission, para. 67; Martin Magone v Commission, para. 48