JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

30 September 2004

Case T-16/03

Albano Ferrer de Moncada

v

Commission of the European Communities

(Officials – Staff report – Procedural irregularities – Statement of reasons – Annulment of report – Damages for loss sustained)

Full text in French II - 0000

Application: for, first, annulment of the applicant’s staff report for the period 1995/97 and, second, damages.

Held: The applicant’s staff report for the period 1995/97 is annulled. The Commission is ordered to pay the applicant the sum of EUR 1 000. The Commission is ordered to pay the costs.

Summary

1. Officials – Reports procedure – Staff report – Drawing up – Disregarding of obligation of dialogue between assessor and official reported on – Infringement of essential procedural requirements

(Staff Regulations, Art. 43)

2. Officials – Reports procedure – Staff report – Drawing up – Change of appeal assessor necessitated by the departure from the institution of the appeal assessor previously responsible – Dialogue between the appeal assessor and the official reported on – Obligation incumbent on the new appeal assessor

(Staff Regulations, Art. 43)

3. Officials – Reports procedure – Staff report – Drawing up – Dialogue between the assessor and the official reported on – Need for direct contact – Telephone conversation or correspondence by mail insufficient

(Staff Regulations, Art. 43)

4. Officials – Reports procedure – Staff report – Obligation to state reasons – Scope – Case requiring special statement of reasons

(Staff Regulations, Art. 43)

5. Officials – Actions – Action for damages – Annulment of contested measure not providing adequate compensation for non-material damage – Systematic refusal of dialogue in the course of the reporting procedure

1. The requirement for dialogue between the assessor or appeal assessor and the official reported on under the general implementing provisions for Article 43 of the Staff Regulations adopted by the Commission derives from the official’s right to be heard in the assessment procedure concerning him and its total absence thus constitutes an infringement of an essential procedural requirement which justifies the annulment of the staff report.

(see paras 31-32, 46)

2. In the appeal procedure provided for by the general implementing provisions for Article 43 of the Staff Regulations adopted by the Commission, if the official who was to have performed the duties of appeal assessor for the period assessed has left the institution in the meantime, the immediate superior of the official reported on at the time the staff report was drawn up must be appointed appeal assessor subject to an obligation to consult, where possible, the former assessor. It follows that the dialogue between the appeal assessor and the official reported on required by those general implementing provisions must of necessity take place with the appeal assessor acting at the time the staff report is drawn up.

(see para. 37)

3. A telephone conversation or, a fortiori, correspondence by mail cannot constitute the hearing of the official reported on provided for by the general implementing provisions for Article 43 of the Staff Regulations adopted by the Commission. The very nature of that dialogue and its purpose require direct contact between the official reported on and the assessor. Without a direct exchange of views, the reporting procedure cannot properly fulfil its function as a tool for the management of human resources and an instrument to assist the professional development of the person concerned. Moreover, only that contact is such as to encourage a frank and thorough dialogue between the assessor and the official reported on, enabling them to ascertain exactly the nature of, the reasons for and the extent of any differences of opinion and to achieve better mutual understanding.

(see paras 38-39, 41)

4. The administration is obliged to state in a sufficient and detailed manner the reasons on which the staff report is based. In certain cases particular care must be taken with that statement of reasons.

For instance, the staff report must state special reasons where the assessor intends not to follow the recommendations of the Joint Committee on Staff Reports and where that committee mentions special circumstances likely to cast doubt on the validity or proper foundation of the original assessment and therefore calls for a specific assessment from the appeal assessor as to any appropriate conclusions to be drawn from those circumstances.

Particular attention must also be paid to the statement of reasons in a report containing assessments which are less favourable than those in a previous report. It is important that reasons be stated for a finding by the authority of a decline in performance so as to enable the official reported on to determine whether it is well founded and, where appropriate, to enable the Court of First Instance to effect its review.

Finally, a special statement of reasons is required particularly where the staff report is drawn up late or the assessor is no longer the immediate superior who was acting as assessor during the period reported on. The reasons stated must make clear that the authority took steps to ensure that the reports procedure was based on detailed and reliable evidence. They must also reflect the duty of the assessor to proceed with circumspection.

(see paras 49-50, 53-54)

See: T-187/01 Mellone v Commission [2002] ECR-SC I-A-81 and II-389, paras 27 and 33; T-98/02 Lebedef-Caponi v Commission [2003] ECR-SC I-A-277 and II-1343, para. 61

5. The non-material damage caused to an official by an unlawful staff report is not adequately and sufficiently compensated by its annulment in a case where, in breach of the substantive right to be heard, there was a systematic failure to arrange for dialogue with the person concerned, despite the opinion of the Joint Committee on Staff Reports and especially its insistence on the need for action by his superiors to remedy a very poor professional situation and working relationship.

(see para. 68)