JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

13 December 2007

Case F-28/06

Paulo Sequeira Wandschneider

v

Commission of the European Communities

(Civil service – Officials – Appraisal – Career development report – 2004 appraisal – Action for annulment – Grounds – Manifest error of assessment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Sequeira Wandschneider seeks annulment of his career development report for the period from 1 January to 31 December 2004 and an order for the Commission to pay him EUR 5 000 in damages for the material and non-material loss sustained by him as a result of the 2004 career development report.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials – Reports procedure – Career development report – Part played by the countersigning officer in the appraisal procedure

(Staff Regulations, Art. 43)

2. Officials – Reports procedure – Career development report – Drawing up – Different reporting officers within the same assessment period

(Staff Regulations, Art. 43)

3. Officials – Reports procedure – Career development report – Composition of the Joint Evaluation Committee

(Staff Regulations, Art. 43)

4. Officials – Reports procedure – Career development report – Role of the appeal assessor

(Staff Regulations, Art. 43)

5. Officials – Reports procedure – Observance of the rights of the defence

(Staff Regulations, Art. 43)

6. Officials – Reports procedure – Career development report – Need for consistency between descriptive comments and marks awarded

(Staff Regulations, Art. 43)

7. Officials – Rights and obligations – Freedom of expression – Exercise – Limits

(Staff Regulations, Arts 12 and 21)

1. It follows from Article 2(3) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, which states that the countersigning officer countersigns the career development report initially drawn up by the reporting officer, and from the first paragraph of Article 8(8) of those General Provisions, which states that the reporting officer and the countersigning officer finalise the report, that the countersigning officer is to be regarded as a reporting officer in the full sense of the term. Consequently, the fact that a computer system mentions that the countersigning officer has completed the assessment cannot be taken to imply that the reporting officer has relinquished his duties to the countersigning officer.

(see para. 43)

See:

T-43/04 Fardoom and Reinard v Commission [2005] ECR-SC I‑A‑329 and II‑1465, para. 64

2. It is clear from the provisions of Article 1(1) and (2) and Article 4(1) and (2) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, that the career development report is designed to assess the ability, efficiency and conduct in the service demonstrated by the holder of the post over the whole of the appraisal period. The reporting officer is therefore required to assess the performance of the holder of that post over the whole of the appraisal period in the light of goals fixed previously, even if he has not been that person’s immediate superior for a particular part of the period in question. The aim of the simplified report is therefore to provide the reporting officer with the information he needs to assess the duties which the official under appraisal has performed during that particular part of the appraisal period. Consequently, the fact that a second reporting officer has incorporated the assessments made by a first reporting officer for the same appraisal period does not show that he failed to carry out an appraisal of the official concerned.

(see para. 49)

3. The presence, at a meeting of the Joint Evaluation Committee at which an official’s appeal against his career development report was considered, of a member with whom that official had previously had a conflictual relationship does not invalidate the proceedings before that Committee provided that the member in question, who was merely an alternate member of that Committee, did not take part in the vote, and that there is no indication that he might, by his mere presence, have influenced the outcome of the vote.

(see paras 59-61)

4. It follows from the second subparagraph of Article 9(7) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, that the role of the appeal assessor is not to be confused with that of the reporting officer or the countersigning officer, and that the appeal assessor may thus, where the Joint Evaluation Committee has not made any recommendations to him, simply adopt the definitive career development report without providing a detailed statement of reasons for his decision.

(see para. 78)

5. Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law. That principle requires that the person concerned must be placed in a position in which he may effectively make known his views on the evidence that might be used against him in the measure to be taken. That aim is achieved, in particular, by the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, which are designed to ensure that both parties are heard throughout the procedure for assessing officials. An applicant who has been able to state his objections at each stage of that procedure cannot claim that his rights of defence have been breached.

(see paras 87-90)

See:

234/84 Belgium v Commission [1986] ECR 2263, para. 27; C-288/96 Germany v Commission [2000] ECR I‑8237, para. 99

T-277/03 Vlachaki v Commission [2005] ECR-SC I‑A‑57 and II‑243, para. 64

6. In the drawing up of career development reports, the purpose of the descriptive comments in the report is to justify the assessments expressed as points. Those comments serve as the basis for establishing the appraisal, which constitutes a quantified transcription of those comments, and enable the official to understand the marking awarded. Consequently, in such a report, the comments must be consistent with the marks awarded. In view of the very wide discretion conferred on the reporting officers in judging the work of those on whom they are to report, any inconsistency in a career development report can only, however, warrant its annulment if that inconsistency is manifest.

(see para. 109)

See:

T-173/04 Carius v Commission [2006] ECR-SC II‑A‑2‑1269, para. 106

7. Although freedom of expression is a fundamental right enjoyed by Community officials, that freedom does not entitle an official to make unfounded allegations against his superiors which are likely to cast discredit on their honour.

(see para. 143)

See:

C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, para. 16

T-146/89 Williams v Court of Auditors [1991] ECR II‑1293, paras 72 and 76