JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

8 July 2010

Case T-160/08 P

European Commission

v

Françoise Putterie-De-Beukelaer

(Appeal — Civil service — Officials — Annulment at first instance of the career development report — 2005 appraisal — Applicable rules — Heading ‘Potential’ — Appraisal procedure — Attestation procedure)

Appeal: against the judgment of the Civil Service Tribunal (First Chamber) in Case F-31/07 Putterie de Beukelaer v Commission [2008] ECR-SC I-A-1-53 and II-A-1-261, seeking to have that judgment set aside.

Held: the judgment of the Civil Service Tribunal (First Chamber) in Case F-31/07 Putterie de Beukelaer v Commission [2008] ECR-SC I-A-1-53 and II-A-1-261 is set aside. The case is referred back to the Civil Service Tribunal of the European Union. The costs are reserved.

Summary

1. Officials — Actions — Plea of lack of competence of the author of an act and failure to respect procedural rules — Finding made by the Court of its own motion

2. Procedure — Obligation on court to respect the scope of the dispute defined by the parties

3. Officials — Reports procedure — Career development report — Appraisal of the potential of the official with a view to the attestation procedure in the Commission

(Staff Regulations, Art. 43)

1. The lack of competence of the author of an act that adversely affects an applicant is a plea of public policy which the Courts of the Union must examine, where necessary of their own motion.

Failure to comply with the procedural rules relating to the adoption of an act adversely affecting an individual constitutes a breach of essential procedural requirements, which the Courts of the Union may examine of their own motion. The refusal to examine an internal appeal provided for in the procedural rules applicable to the adoption of an act adversely affecting an individual clearly constitutes a breach of essential procedural requirements and may therefore be raised by the Civil Service Tribunal of its own motion.

(see paras 61, 63)

See: 14/59 Société des fondéries de Pont-à-Mousson v High Authority [1959] ECR 215, 229; C-210/98 P Salzgitter v Commission [2000] ECR I-5843, para. 56; T-182/94 Marx Esser and Del Amo Martinez v Parliament [1996] ECR-SC I-A-411 and II-1197, paras 42 and 44; T-165/04 Vounakis v Commission [2006] ECR-SC I-A-2-155 and II-A-2-735, para. 30; T-113/05 Angelidis v Parliament [2007] ECR-SC I-A-2-237 and II-A-2-1555, para. 62 and the case-law cited therein; judgment of 2 October 2009 in T-300/05 and T-316/05 Cyprus v Commission, not published in the ECR, para. 206

2. Although it must rule only on the application of the parties, whose task it is to define the scope of the dispute, the Court cannot be bound merely by the arguments relied upon by the parties in support of their claims, since it would otherwise be forced, in some circumstances, to base its decisions on erroneous legal considerations.

(see para. 65)

See: judgment of 27 September 2004 in C-470/02 P UER v M6 and Others, not published in the ECR, para. 69; judgment of 13 June 2006 in C-172/05 P Mancini v Commission, not published in the ECR, para. 41

3. It follows from the General Implementing Provisions of Article 43 of the Staff Regulations, adopted by the Commission on 23 December 2004 and from Administrative Notices No 1-2006 that the heading ‘Potential’ in the career development report of a jobholder wishing to carry out the functions of the higher category is intended in substance to obtain an assessment relating to the tasks of the higher category actually carried out by the official in the normal course of his work during the period covered by the career development report for the purposes of enabling him to be attested.

Regard being had to the object of the appraisal carried out in relation to an official’s potential, namely the proportion of his activity and the quality of his performance in relation to the higher-category tasks which he has actually carried out during the period covered by the career development report, it appears that that appraisal forms an integral part of the appraisal intended to evaluate the official’s work experience and merits, which are necessarily reflected, at least, in the evaluation of his competence during the same period.

Thus, the authorities empowered to evaluate, in the context of the appraisal procedure, an official’s merits under the various headings in the career development report, namely the reporting officer and the countersigning officer, subject to the possible intervention of the appeal assessor, are the ones who are also called upon to appraise the ‘potential’ of officials who have requested that the relevant heading be completed by the reporting officer.

When the appointing authority takes officials’ potential for taking on duties in the higher grade into account, it does not itself assess that potential, but relies on information under the corresponding heading of the career development report for the preceding year.

Although it has consequences in the context of the attestation procedure, the heading ‘Potential’ is to be found in the context of the appraisal of officials. Thus, in the absence of any provision expressly stipulating that it forms part of an appraisal that has to be made in the context of the attestation procedure, that heading cannot be detached from the appraisal procedure in order to be brought within the exclusive competence of the appointing authority in the context of the attestation procedure.

(see paras 78-80, 87, 90)