JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

12 May 2011





Case F-66/10





AQ

v

European Commission

(Civil service — Officials — Appraisal report — Appraisal period 2009 — Appraiser’s grade lower than that of the holder of the post — Appraisal of performance in part of the reference period — Failure to fix objectives for the holder of the post)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which AQ seeks, first, annulment of his appraisal report covering the period from 1 January to 31 December 2008, of the decision awarding him two promotion points for the 2009 appraisal period, and of the decision of the appointing authority of 12 May 2010 rejecting his complaint against that report, and secondly, an order that the Commission pay him the sum of EUR 25 000 in compensation for the non-material and pecuniary damage he considers he suffered as a result of those decisions.

Held: The applicant’s appraisal report for the 2009 appraisal and promotion period and the decision awarding him two promotion points for the same period are annulled. The Commission is ordered to pay the applicant the sum of EUR 2 000. The remainder of the claims in the action are dismissed. The Commission is ordered to pay all the costs.

Summary

1. Officials — Reports procedure — Appraisal report — Drawing up — Appraiser’s grade lower than that of the official appraised — Lawfulness

(Staff Regulations, Art. 43)

2. Officials — Reports procedure — Appraisal report — Drawing up — Appraiser performing duties as a replacement — Lawfulness

(Staff Regulations, Art. 43)

3. Officials — Reports procedure — Appraisal report — Drawing up — Official assigned to a different post during the appraisal period

(Staff Regulations, Art. 43)

4. Officials — Reports procedure — Appraisal report — Obligation to fix objectives to be achieved

(Staff Regulations, Art. 43)

5. Officials — Reports procedure — Appraisal report — Fixing of objectives to be achieved — Concept

(Staff Regulations, Art. 43)

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

(Staff Regulations, Arts 43 and 91)

1. It does not follow from any provision of the Staff Regulations or any principle of Union civil service law that an official may be appraised only by an official in a higher grade. On the contrary, the Staff Regulations do not establish a fixed correspondence between a particular function and a particular grade.

Furthermore, the fact that the appraiser is in a lower grade than the official appraised does not constitute a situation of a conflict of interests. Since the official appraised and his appraiser are not candidates for promotion to the same grade and are therefore not competitors in that respect, the appraiser will not, in any event, be tempted to play down the merits of the official appraised, as the appraiser’s chances of promotion to the higher grade are not directly linked to the appraisal of the professional merit of the official reported on.

(see paras 45, 46)

See:

8 July 2008, T-56/07 P Commission v Economidis, paras 59 and 60; 18 June 2009, T-572/08 P Commission v Traoré, para. 41

5 May 2010, F-53/08 Bouillez and Others v Council, para. 80

2. It would be contrary to the requirements of continuity of service and sound administration for a head of unit not to be able to perform the duties of a reporting officer solely because he performs those duties as a replacement.

(see para. 50)

3. The primary function of the appraisal report is to provide the administration with periodic information, which is as complete as possible, on the performance of their duties by officials. An appraisal report cannot really fulfil that role if the superiors under whose orders the official concerned has performed his duties during the reporting period are not first consulted by the assessor and given an opportunity to submit any comments. The absence of such consultation constitutes a substantial procedural irregularity such as to invalidate the report.

Furthermore, while the appraisal report should cover the whole of the reference period, the fact that the reporting officer committed a manifest error by confining his appraisal of the official’s efficiency to part of the period would be such as to entail the annulment of the appraisal report only in so far as that irregularity was not rectified by the countersigning officer or the appeal assessor, the latter being reporting officers in their own right.

(see paras 59, 61)

See:

24 January 1991, T-63/89 Latham v Commission, para. 27; 5 November 2003, T-326/01 Lebedef v Commission, para. 61; 25 October 2005, T-43/04 Fardoom and Reinard v Commission, para. 90

25 April 2007, F-71/06 Lebedef-Caponi v Commission, para. 48; 13 December 2007, F-28/06 Sequeira Wandschneider v Commission, paras 43 and 49

4. Infringement of the rules requiring the fixing of objectives for an official at the beginning of each appraisal period is substantial and warrants a declaration that the contested appraisal report is unlawful.

The fixing of objectives constitutes a reference point for assessing the official’s performance and drawing up the appraisal report. In addition, it is all the more necessary to fix objectives for an official entrusted with new responsibilities in another unit, into which he must integrate himself as quickly as possible. Consequently, the institution is under an obligation formally to fix objectives for the official when he is assigned to a new post, in discussion with his reporting officer.

(see paras 68, 84, 85)

See:

30 September 2009, T-193/08 P Skareby v Commission, paras 71 to 75;

13 December 2007, F-42/06 Sundholm v Commission, paras 39 to 41; 10 November 2009, F-71/08 N v Parliament, paras 54 to 60

5. A job description may not, as such, be regarded as a document fixing objectives for an official for the purposes of his appraisal, since those two categories of documents have different aims and characteristics. The fact that an official is aware of the tasks assigned to him certainly does not mean that the objectives relating to those tasks have been duly fixed.

Likewise, the updating of the official’s objectives in a computerised staff management system cannot be deemed to constitute the formal fixing of objectives, since such computer entries cannot replace the formal interview between the reporting officer and the holder of the post.

Lastly, the official’s self-appraisal does not reveal his knowledge of the tasks and objectives assigned to him. The fixing of objectives is the responsibility of the reporting officer, and for the purposes of objective appraisal and equal treatment of officials, the functions of the reporting officer must be kept separate from those of the official appraised.

(see paras 88-90)

See:

28 November 2007, T-214/05 Vounakis v Commission, para. 43; Skareby v Commission, para. 83

N v Parliament, para. 57

6. The annulment of an act of the administration which has been challenged by an official in itself constitutes appropriate and, in principle, sufficient reparation for any non-material harm which that official may have suffered.

However, that is not true of an unlawful act relating to the failure to fix formal objectives for the purposes of an official’s appraisal, which cannot easily be rectified. In the enforcement of a judgment, it is impossible to assign objectives to an official retroactively, and difficult to ensure that his performance will be appraised as it would have been if objectives had been fixed from the outset. Thus, whatever the level of performance established by the new appraisal report that the institution will have to draw up, doubt will remain about how the official might have performed if objectives had been fixed initially. That doubt constitutes damage.

(see paras 103, 110)

See:

26 January 1995, T-60/94 Pierrat v Court of Justice, para. 62; 21 January 2004, T-328/01 Robinson v Parliament, para. 79

Sundholm v Commission, para. 44