JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

6 February 2007

Joined Cases T-246/04 and T-71/05

Jacques Wunenburger

v

Commission of the European Communities

(Officials – Staff reports – Reporting exercises 1997/1999 and 1999/2001 – Career development report – 2001/2002 appraisal exercise – Action for annulment – Admissibility – Action for damages – Rights of the defence)

Application: first, for annulment of the applicant’s draft staff reports for the periods 1997/1999 and 1999/2001 and the applicant’s Career Development Report for the 2001/2002 appraisal exercise and, second, damages for the alleged harm.

Held: The decision of 11 September 2003 drawing up the applicant’s Career Development Report for the period 1 July 2001 to 31 December 2002 is annulled. The Commission is ordered to pay the applicant the amount of EUR 2 500, in addition to the amount of EUR 2 500 already granted by the Appointing Authority for the delay in drawing up the staff reports for the periods 1997/1999 and 1999/2001, and the symbolic amount of EUR 1 for the delay in drawing up the Career Development Report for 2001/2002. The actions are dismissed as to the remainder. The Commission is ordered to pay the costs.

Summary

1. Officials – Actions – Act adversely affecting an official – Definition – Preparatory act

(Staff Regulations, Arts 90 and 91)

2. Officials – Actions – Claim for compensation made jointly with an action for annulment

(Staff Regulations, Arts 90 and 91)

3. Officials – Reports procedure – Staff report

(Staff Regulations, Art. 43)

4. Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Arts 43 and 45)

5. Officials – Reports procedure – Career Development Report

(Staff Regulations, Art. 43)

6. Officials – Reports procedure – Career Development Report

(Staff Regulations, Arts 43 and 45)

1. Only acts or decisions producing binding legal consequences likely to affect the applicant’s interests by significantly changing his legal situation and which definitively establish the position of the institution are acts adversely affecting an official for the purposes of Articles 90 and 91 of the Staff Regulations. In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, only a measure definitively establishing the position of the institution at the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision, is generally challengeable.

A ‘draft’ staff report is a preparatory act which does not produce any effect in law that is capable of directly affecting the interests of the official in question and is therefore not an act adversely affecting him.

(see paras 41-43)

See: T‑69/92 Seghers v Council [1993] ECR II‑651, para. 28; T‑57/92 and T‑75/92 Yorck von Wartenburg v Parliament [1993] ECR II‑925, para. 36; T‑6/93 Pérez Jiménez v Commission [1994] ECR-SC I‑A‑155 and II‑497, para. 34; T‑586/93 Kotzonis v ESC [1995] ECR II‑665, para. 29; T‑324/02 McAuley v Council [2003] ECR-SC I‑A‑337 and II‑1657, para. 28

2. Despite the fact that actions for annulment and actions for damages are separate legal remedies, claims for damages are inadmissible where the action for damages is closely linked to an action for annulment which has also been declared inadmissible. That applies where the action for damages seeks exclusively compensation for the consequences of the measure which was the subject of the action for annulment, which has itself been declared inadmissible, in particular where the sole purpose of the action for damages is to compensate for losses of remuneration which would not have occurred if, in fact, the action for annulment had succeeded.

However, where the two actions arise out of different acts or conduct on the part of the administration, the action for damages cannot be equated with the action for annulment, even though, as far as the applicant is concerned, the financial result of the two actions is the same, so that the inadmissibility of the action for annulment does not entail the inadmissibility of the action for damages.

(see paras 46-48)

See: 4/67 Muller v Commission [1967] ECR 365, 373; 53/70 Vinck v Commission [1971] ECR 601, paras 8 to 15; 79/71 Heinemann v Commission [1972] ECR 579; 346/87 Bossi v Commission [1989] ECR 303; T‑27/90 Latham v Commission [1991] ECR II‑35, para. 38; T‑147/04 Ross v Commission [2005] ECR-SC I‑A‑171 and II‑771, para. 39 and the case-law cited therein

3. The administration must ensure that staff reports are drawn up periodically on the dates laid down by the Staff Regulations and that they are drawn up in a proper form, both for reasons of sound administration and in order to safeguard the interests of officials. A delay in the drawing up of a staff report may in itself be prejudicial to the official for the simple reason that his career progress may be affected by the absence of such a report at a time when decisions concerning him must be taken. An official in possession of an irregular and incomplete personal file thereby suffers non-material damage as a result of being put in an uncertain and anxious state of mind with regard to his professional future. In the absence of special circumstances justifying the delays found to have occurred, the administration commits a breach of administrative duty giving rise to liability on its part.

(see paras 64-65)

See: 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, para. 15; 173/82, 157/83 and 186/84 Castille v Commission [1986] ECR 497, para. 36; T‑73/89 Barbi v Commission [1990] ECR II‑619, para. 41; T‑59/96 Burban v Parliament [1997] ECR-SC I‑A‑109 and II‑331, paras 44 and 50; T‑187/01 Mellone v Commission [2002] ECR-SC I‑A‑81 and II‑389, paras 77 and 78

4. The periodic report constitutes an indispensable criterion of assessment each time an official’s career is taken into consideration by his line authority. Even though an official has no established right to be promoted, the possibility remains, however, that the absence of a periodic report at the time of the relevant promotion procedure could affect his career.

Moreover, while it is true that, in exceptional circumstances, the absence of a periodic report may be compensated for by the existence of other information on an official’s merits, such other information must meet certain conditions and it is for the defendant institution to show that they have been satisfied. In any event, a periodic report which is not final and is disputed by the official concerned cannot, of itself, serve as a source of such other information.

(see paras 70-72)

See: C‑68/91 P Moritz v Commission [1992] ECR I‑6849, para. 16; T‑202/99 Rappe v Commission [2000] ECR-SC I‑A‑201 and II‑911, paras 38, 40, 52 and 56; T‑278/01 Den Hamer v Commission [2003] ECR-SC I‑A‑139 and II‑665, para. 95

5. Where the reporting system has been changed and, at the same time, the official concerned has been assigned to a new post involving material differences in the nature of his duties and a high level of responsibility, any perceived differences between the assessments made of an official in two successive periodic reports cannot be classified as a ‘deterioration’ requiring a special statement of reasons.

(see para. 95)

6. An official’s right to be heard is infringed where the administration, in the appraisal procedure, does not comply, without explanation, with the formal requirements laid down in an internal directive containing special rules for the officials in a particular service concerning the recording, in the Career Development Report, of opinions obtained as part of the requisite consultations, so that the official appraised has not been able properly to make his views known on those opinions.

Merely referring, in the Career Development Report, to the fact that consultations have taken place is not sufficient to alert the official concerned to the existence of an opinion which he is entitled to demand to be put on record.

Where an opinion on an official in a senior grade, representing the Union as a head of delegation, is particularly negative and therefore likely to reduce his rating, he must be clearly and unequivocally informed of it so that he can properly make his views known.

For an infringement of the right to be heard to result in an annulment, it must, however, be the case that, had it not been for that irregularity, the outcome of the procedure might have been different.

(see paras 134, 147-149)

See: 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, para. 47; C‑142/87 Belgium v Commission [1990] ECR I‑959, para. 48; T‑372/00 Campolargo v Commission [2002] ECR-SC I‑A‑49 and II‑223, para. 39