Case T‑827/16

QB

v

European Central Bank

(Civil Service — Staff of the ECB — Appraisal — [2015] performance appraisal report — Opportunity to be accompanied by a trade union representative at the appraisal interview — Breach of the rules of objectivity and impartiality on the part of the appraiser — Remuneration — Decision not to award a salary increase — Admissibility of evidence — Email exchanged between a member of staff and her coach via an office email system — Liability)

Summary — Judgment of the General Court (Ninth Chamber), 8 November 2018

(Protocol on the Statute of the European System of Central Banks and of the European Central Bank, Art. 36.2; Statute of the Court of Justice, Art. 50a; Staff Regulations of Officials, Arts 90 and 91; Conditions of Employment for Staff of the European Central Bank, Art. 42)

Actions brought by officials — Staff of the European Central Bank — Actions for damages — Autonomy in relation to the action for annulment — Admissible despite the lack of a pre-litigation procedure in accordance with the Staff Regulations — Condition — Application for damages linked to an application for annulment

Officials — Staff of the European Central Bank — Appraisal — Appraisal report — Drawing up — Differences between a staff member and his immediate superior — No impact on the latter’s ability to assess the merits of the official concerned — Limits — Evidence of a lack of impartiality on the part of the second appraiser — Consequences — Annulment of the appraisal report and the annual salary and bonus review decision

Officials — Staff of the European Central Bank — Appraisal — Appraisal report — Drawing up — Dialogue between appraiser and appraisee — Need for direct contact — No possibility for the appraisee to withdraw from the appraisal interview because of strained relations with the appraiser

See the text of the decision. (see paras 37, 38)

See the text of the decision. (see para. 42)

It is clear from the wording of the Guide to the European Central Bank appraisal that the appraisal discussion is supposed to involve only the appraisee and the appraiser. Thus, although as a general rule the appraisal interview is meant to take place on a one-to-one basis, it is not inconceivable that a third party might be involved. However, that does not in any way mean that the presence of a trade union representative is allowed. The cases in which staff members can be assisted by a trade union representative are in fact limited to certain specific provisions of the Bank’s internal rules, all relating to situations of conflict. (see paras 44, 45)

An appraisal report for an agent of the European Central Bank cannot be definitively adopted without the agent in question being given the opportunity to be properly heard, and a procedural irregularity in the drawing up of the appraisal report whereby the agent is not consulted also constitutes an infringement of the right to be heard. Without a direct exchange between the reporting officer and the staff member under appraisal, the staff report cannot entirely fulfil its function as a human resources management tool and as an instrument to accompany the professional development of the agent concerned. Also, an agent therefore cannot rely on the fact that she withdrew from the interview on the pretext that she was apprehensive about it because of her strained relations with the appraiser, or on a situation created by herself, in order to challenge thereby the legality of the appraisal report at issue or of the appraisal process. (see paras 47, 48, 51)

In an application for withdrawal of documents from the file of a case before the EU judicature, neither the fact that the documents in question may be confidential nor the fact that they may have been obtained unlawfully precludes their remaining in the case-file. First, there is no provision that expressly prohibits evidence obtained unlawfully from being taken into account. Second, the possibility that even internal documents may, in certain cases, be lawfully placed in a case file has not been ruled out. With regard to balancing the interests to be protected, it is necessary to take into account the probative value of the documents at issue, whose authenticity has not been called into question, the conditions under which they were obtained and the internal, confidential or personal nature of those documents. Emails obtained by the applicant in circumstances which have not been established, but where it is not established that the applicant herself unlawfully obtained those emails, and which constitute an internal exchange of correspondence, on the one hand, and a personal and confidential exchange between the applicant’s appraiser and third parties (her spouse and her coach) which relates solely to professional concerns, are admissible, since those documents are capable of demonstrating the facts complained of by the applicant and needed in order to examine the lawfulness of the appraisal report at issue. (see paras 63, 65, 67, 68, 71, 73, 77, 80, 82)

See the text of the decision. (see para. 93)

In the context of drawing up an appraisal report for an agent of the European Central Bank, only the involvement of managers in the professional activities of the staff members reporting to them enables the former to make the most appropriate assessment possible of the activities of the persons under them. Acceptance of an argument whereby neither the head of unit nor any member of the management of the department to which a staff member is assigned should take part in the appraisal procedure would lead to a situation in which a proper assessment of the performance of the staff member and of his conduct in the service would not be ensured. (see para. 95)

As regards the appraisal of staff members of the European Central Bank, the existence of differences between the appraisee and the appraiser, and of a certain amount of irritation on the part of the latter, does not, as such, mean that the appraiser is no longer able to assess the merits of the person concerned objectively. In that context, comments, even negative comments, contained in the appraisal report at issue cannot, as such, be regarded as evidence that that report was drawn up with a lack of impartiality and objectivity. However, where there is evidence constituting sufficiently precise, objective and consistent indicia of the truth or probability of an allegation as to Appraiser 2’s subjective lack of impartiality, the appraisal report must be viewed as vitiated by unlawfulness such as to justify its annulment. That finding is not invalidated by the argument that, although the second appraiser’s attitude may have been a problem, quod non, her intervention did not have any impact on the agent’s appraisal overall, since the second appraiser merely confirmed the criticisms made by the first appraiser. In that regard, the latter’s impartiality does not preclude the possibility that the second appraisal in unlawful due to the second appraiser’s lack of impartiality, since the conduct of just one appraiser is such as to render unlawful the appraisal report as a whole. Under the appraisal process introduced at the ECB, the appraisal carried out by a second appraiser, the first appraiser’s line manager, constitutes a guarantee for the staff member concerned, who must be able to rely on the experience and impartiality of that manager. According to the Guide to the ECB appraisal, the role of the second appraiser is to complement the appraisal by the first appraiser, to review the appraisals by the first appraisers, ensuring fair and equal treatment across the division, and to arbitrate in the event of serious disagreement between the first appraiser and the appraisee. Furthermore, in view of the ‘indirect relationship’ established by virtue of the Annual Salary and Bonus Review (ASBR) Guidelines between the appraisal exercise and the ASBR exercise, which although they have different objectives must be internally consistent, the ASBR decision for the agent concerned must also be annulled. (see paras 98, 99, 106, 108, 112)

See the text of the decision. (see paras 117, 118)

See the text of the decision. (see paras 119, 120)