JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

13 December 2007

Case F-65/05

Paulo Sequeira Wandschneider

v

Commission of the European Communities

(Civil service – Officials – Appraisal – Career development report – Appraisal for the year 2003 – Action for annulment – Reasons – Manifest error of assessment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Sequeira Wandschneider seeks in particular annulment of his career development report for the period from 1 January to 31 December 2003 and an order for the Commission to pay him EUR 2 500 in damages, subject to possible increase, for the material and non-material loss sustained by him as a result of the 2004 career development report.

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

Summary

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

(Staff Regulations, Art. 43)

2. Officials – Reports procedure – Career development report – Part played by the countersigning officer in the appraisal procedure

(Staff Regulations, Art. 43)

3. Officials – Reports procedure – Career development report – Composition of the Joint Evaluation Committee

(Staff Regulations, Art. 43)

4. Officials – Reports procedure – Career development report – Role of the appeal assessor

(Staff Regulations, Art. 43)

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

(Staff Regulations, Art. 43)

6. Officials – Reports procedure – Career development report – Decline in assessment compared with previous report

(Staff Regulations, Art. 43)

1. 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.

The breach of an obligation concerning the reports procedure constitutes a substantial irregularity of such a kind as to render a staff report invalid only if, in the absence of that irregularity, the definitive staff report might have been substantively different.

(see paras 37, 39)

See:

T-212/97 Hubert v Commission [1999] ECR-SC I‑A‑41 and II‑185, para. 53; T-278/01 Den Hamer v Commission [2003] ECR‑SC I‑A‑139 and II‑665, para. 32 and the case-law cited therein

2. It follows from Article 2(3) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, which states that the countersigning officer countersigns the career development report initially drawn up by the reporting officer, and from the first paragraph of Article 8(8) of those General Provisions, which state that the reporting officer and the countersigning officer finalise the report, that the countersigning officer is to be regarded as a reporting officer in the full sense of the term. Consequently, the fact that a computer system mentions that the countersigning officer has completed the assessment cannot be taken to imply that the reporting officer has relinquished his duties to the countersigning officer.

(see para. 51)

See:

T-43/04 Fardoom and Reinard v Commission [2005] ECR-SC I‑A‑329 and II‑1465, para. 64

3. The presence, at a meeting of the Joint Evaluation Committee at which an official’s appeal against his career development report was considered, of a member with whom that official had previously had a conflictual relationship does not compromise the Committee’s independence provided that the member in question, who was merely an alternate member of that Committee, did not take part in the vote, and that there is no indication that he might, by his mere presence, have influenced the outcome of the vote. The same applies to a second member who received, prior to the meeting, a copy of a note from the first member calling that official into question, since that is not enough to prove that the second member approved, even implicitly, the content of that note, and it also applies to a third member of the Committee who had the same countersigning officer as the official in question, since that does not mean that that member was not able to give a completely independent opinion, in so far as under the first subparagraph of Article 9(7) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, the opinion of the Committee is forwarded to the holder of the post, the reporting officer, the countersigning officer and the appeal assessor, without any mention being made of the respective positions adopted by each member of the Committee.

(see paras 64-66)

4. It follows from the second subparagraph of Article 9(7) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, that the role of the appeal assessor is not to be confused with that of the reporting officer or the countersigning officer, and that the appeal assessor may thus, where the Joint Evaluation Committee has not made any recommendations to him, simply adopt the definitive version of the career development report without providing a detailed statement of reasons for his decision.

(see para. 77)

5. Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law. That principle requires that the person concerned must be placed in a position in which he may effectively make known his views on the evidence that might be used against him in the measure to be taken. That aim is achieved, in particular, by the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, which are designed to ensure that both parties are heard throughout the procedure for assessing officials. An applicant who has been able to state his objections at each stage of that procedure cannot claim that his rights of defence have been breached.

(see paras 87-90)

See:

234/84 Belgium v Commission [1986] ECR 2263, para. 27; C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, para. 99; C-288/96 Germany v Commission [2000] ECR I‑8237, para. 99; C-344/05 P Commission v De Bry [2006] ECR I‑10915, para. 37

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

6. 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 administration’s comments on the official’s abilities are sufficiently precise and reasoned where they enable him to understand that the decline in the mark is the direct result of shortcomings which he demonstrated during the reference period.

In the drawing up of career development reports, the purpose of the descriptive comments in the report is to justify the assessments expressed as points. Those comments serve as the basis for establishing the evaluation, which constitutes a quantified transcription of those comments, and enable the official to understand the marking awarded. Consequently, in such a report, the comments must be consistent with the marks awarded. In view of the very wide discretion conferred on the reporting officers in judging the work of those on whom they are to report, any inconsistency in a career development report can only, however, warrant its annulment if that inconsistency is manifest.

(see paras 96, 112, 116)

See:

T-1/91 Della Pietra v Commission [1992] ECR II‑2145, paras 30 and 32; Hubert v Commission, para. 79; Den Hamer v Commission, para. 69; T-73/05 Magone v Commission [2006] ECR-SC II‑A‑2‑485, para. 53; T-173/04 Carius v Commission [2006] ECR-SC II‑A‑2‑1269, para. 106