JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

15 December 2008

Case F-34/07

Carina Skareby

v

Commission of the European Communities

(Civil service – Officials – Assessment – Career development report – 2005 assessment procedure – Infringement of procedural rules – No interview on fixing targets – Simplified report drawn up for the period from January to September 2005 – No assessment – Manifest error of assessment – Article 44(1)(c) of the Rules of Procedure of the Court of First Instance)

Application: brought under Articles 236 EC and 152 EA, in which Ms Skareby essentially seeks, first, annulment of her career development report for the period from 1 January to 31 December 2005 and, second, an order for the Commission to pay damages for the professional, financial and non-material harm she claims to have suffered.

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

Summary

1. Officials – Reports procedure – Career development report – Obligation to fix targets to be achieved – Scope

(Staff Regulations, Art. 43)

2. Officials – Reports procedure – Career development report – Drawing up – Simplified report

(Staff Regulations, Art. 43)

3. Officials – Reports procedure – Career development report – Judicial review – Limits

(Staff Regulations, Art. 43)

1. It follows from the fourth paragraph of Article 8(5) of the General Implementing Provisions for Article 43 of the Staff Regulations, adopted by the Commission, that the formal interview held between the reporting officer and the holder of the post at the start of each assessment procedure is designed to enable them to fix, if possible by joint agreement, the targets to be achieved by the holder of the post during the year in which the interview takes place. The importance of that formal interview is thus evident in a situation, provided for in the General Implementing Provisions, in which the reporting officer unilaterally proposes targets which the holder is to achieve in his post, since the interview gives the person concerned the opportunity to discuss those targets and to state his views in order to reach agreement on their content.

However, the situation is different where it is the holder of the post who, at the reporting officer’s request, fixes his own targets, which the reporting officer then accepts by signing them. In such circumstances, there is de facto an agreement between the reporting officer and the holder of the post on the targets to be achieved, so that recourse to a formal interview in order to reach such an agreement, while still desirable in that it is one of the reporting officer’s management responsibilities, is no longer necessary.

Infringements of the procedural rules, particularly those concerning the drawing up of a career development report, constitute substantive irregularities such as to invalidate that report, provided that the official can show that the content of the report might have been different had those infringements not occurred.

(see paras 34, 36, 37, 40)

See:

T-212/97 Hubert v Commission [1999] ECR-SC I‑A‑41 and II‑185, para. 53

F-36/07 Lebedef v Commission [2008] ECR-SC I-A-0000 and II-0000, para. 57

2. Where there is a change of reporting officer during the assessment procedure, Article 4(3) of the General Implementing Provisions for Article 43 of the Staff Regulations, adopted by the Commission, provides that the reporting officer who is to leave his post must draw up a simplified report which is included in the career development report and which relates solely to the official’s efficiency, ability and conduct in the service during the specified part of the period covered by the report. That simplified report, which does not include a mark, is communicated to the holder of the post, who may state his observations in the section reserved for that purpose. The purpose of that report is to provide the reporting officer with the information he needs to assess the duties which the subject of the report has performed during the specified part of the assessment period.

The fact that the reporting officer drawing up the simplified report, who was also the reporting officer for the previous career development report, has reproduced almost word for word, in the simplified report, the assessments contained in the previous career development report, in particular on the efficiency, ability and conduct in the service of the official reported on, does not automatically prove that he did not carry out an assessment of the official, since the reporting officer may simply have observed and decided that the official had the same efficiency, ability and conduct in the same service during the reference period.

(see paras 58, 61)

See:

F-28/06 Sequeira Wandschneider v Commission [2007] ECR-SC I‑A-0000 and II-0000, para. 48

3. Assessors have wide discretion when judging the work of persons upon whom they must report, and the staff report or career development report expresses their freely worded personal opinion. Thus it is not for the Civil Service Tribunal to substitute its assessment for that of the persons responsible for appraising the work of the person reported on. The value judgments made of officials in the career development reports are not subject to judicial review, except as regards any manifest factual errors.

Even if certain errors have been made by those drawing up a career development report or if they have made unfounded comments, a complaint based on the argument that the report is vitiated by manifest errors of assessment actually relates to value judgements the validity of which can be reviewed only within strict limits.

(see paras 69, 71)

See:

T-63/89 Latham v Commission [1991] ECR II‑19, para. 19; T-73/05 Magone v Commission [2006] ECR-SC I‑A‑2‑107 and II‑A‑2‑485, paras 25 and 28 and the case-law cited therein; T-285/04 Andrieu v Commission [2006] ECR-SC I‑A‑2‑161 and II‑A‑2‑775, para. 99