JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

14 December 2010

Case F-67/05 RENV

Christos Michail

v

European Commission

(Civil service — Officials — Referral back to the Tribunal after annulment — Career evaluation report — 2003 evaluation period — Action for annulment — Action for damages)

Application: brought under Articles 236 EC and 152 EA, in which Mr Michail seeks, in particular, annulment of his career evaluation report for the period from 1 April to 31 December 2003, as well as annulment of the decision of 15 April 2005 rejecting his complaint lodged under Article 90(2) of the Staff Regulations of Officials of the European Union.

Held: The applicant’s career evaluation report for the period from 1 April to 31 December 2003 is annulled. The Commission is ordered to pay the applicant damages of EUR 1 000. The Commission is ordered to pay all the costs.

Summary

1. Officials — Reports procedure — Career evaluation report — Drawing up — Official who has not performed any duty capable of assessment during the reference period

(Staff Regulations, Art. 43)

2. Officials — Reports procedure — Career evaluation report — Drawing up — Official who has not performed any duty capable of assessment during the reference period

(Staff Regulations, Art. 43)

3. Officials — Reports procedure — Staff report — Obligation to state reasons — Scope

(Staff Regulations, Art. 43)

4. Officials — Actions — Actions for damages — Pre-contentious procedure — Conducted differently according to whether or not there is an act adversely affecting the official

(Staff Regulations, Arts 90 and 91)

1. When drawing up a career evaluation report, reporting officers may take the previous career evaluation reports of the official concerned as their basis for awarding merit marks where, as a result of an exceptional situation attributable solely to the administration, they are unable to award a mark in the absence of a performance capable of evaluation. However, since the reporting officers must take a decision which respects the interests of the official concerned, they may, in accordance with their duty to have regard for the welfare of officials, reasonably consider that, if the official had been entrusted with tasks during the reference period, he would have performed them with at least the same ability, efficiency and conduct in the service as during the period evaluated in the previous career evaluation reports.

(see para. 56)

2. In so far as an official has not given a performance capable of being evaluated, the question of who is competent to draw up the career evaluation report is immaterial. In such circumstances the administration may legitimately decide to entrust the drawing up of that report to the person it considers most appropriate.

(see para. 62)

3. The administration is obliged to state in a sufficient and detailed manner the reasons on which a staff report is based and to give the person concerned an opportunity to make observations on those reasons. In a staff report, such a statement of reasons is given, as a general rule, under the heading ‘General assessment’ in the ad hoc form. This explains in three sections, relating to ability, efficiency and conduct in the service respectively, the analytical assessment grid in the same form. The general comments accompanying the analytical assessments must enable the official reported on to assess the validity of those assessments with full knowledge of the facts and, where appropriate, must enable the Union judicature to conduct its review, and it is important, to that end, for there to be consistency between the assessments and the comments justifying them.

(see para. 80)

See:

T-193/03 Piro v Commission [2005] ECR-SC I-A-121 and II-547, para. 41; T-50/04 Micha v Commission [2005] ECR-SC I-A-339 and II-1499, para. 61; T-155/03, T-157/03 and T-331/03 Cwik v Commission [2005] ECR-SC I-A-411 and II-1865, para. 80

4. Under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-contentious procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time-limits, a complaint directed against the act in question. In the second case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, seeking compensation. It is only the express or implied rejection of such a request that constitutes a decision adversely affecting the person concerned and against which he may submit a complaint, and it is only after the express or implied rejection of that complaint that an action seeking compensation may be brought before the Tribunal.

(see para. 112)

See:

judgment of 11 May 2010 in F-30/08 Nanopoulos v Commission, para. 83 and the case-law cited therein