JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

28 June 2016

FV

v

Council of the European Union

‛Civil service — Reports procedure — Appraisal report — Interest in bringing proceedings — Downgrading of analytical assessments — Referral to the reports committee — Amendment by the second reporting officer of certain assessments not affecting the overall assessment — Manifest error of assessment — Obligation to state reasons — Duty to have regard for the welfare of officials’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which FV seeks annulment of her appraisal report for the period from 1 January to 31 December 2013.

Held:

The action is dismissed. FV is to bear her own costs and is ordered to pay the costs incurred by the Council of the European Union.

Summary

Officials — Psychological harassment — Meaning — Conduct seeking to discredit the person concerned or impair his working conditions — Appraisal report containing an assessment critical of the official’s performance — Not included

Officials — Reports procedure — Appraisal report — Obligation to state reasons — Obligation to support the comments appearing in the appraisal report with factual material — None — Necessary consistency between descriptive comments and marks awarded — Annulment in cases of manifest inconsistency only

Actions brought by officials — Interest in bringing proceedings — Action for annulment of an appraisal report — Official having finally terminated her service — Interest in bringing proceedings retained — Condition

As regards the interest which an official or former official has in seeking annulment of a career development report concerning him, it must be observed that that report constitutes a value judgement made by his immediate superiors on the way in which the official has discharged the tasks entrusted to him and on his conduct in the service during the relevant period and that, independently of its utility in the future, it constitutes written and formal evidence of the quality of the official’s work. Such an appraisal does not merely describe the tasks performed during the relevant period, but also includes an assessment of the personal qualities shown by the individual assessed in the conduct of his professional life. Therefore, every official has a right to have his work recognised by means of an appraisal carried out in a just and equitable manner. Consequently, in accordance with the right to effective judicial protection, an official must in any event be acknowledged as having the right to challenge a career development report concerning him by reason of its content or because it has not been drawn up in accordance with the rules laid down in the Staff Regulations. In this regard, the appraisal report, which plays an important role in the official’s career development, only affects the interest of the person under appraisal, in principle, until final termination of service. Consequently, following such final cessation, an action brought by the official is not, in principle, admissible, unless particular circumstances can be demonstrated which establish a personal and current interest in obtaining annulment of the report in question. The official’s interest in challenging his appraisal report on the grounds of its content continues, in any event, where his staff report includes expressly negative assessments of his performance and his conduct in the service. (see paras 44, 46, 49) See: Order of 19 October 1999 in N v Commission, C‑21/99 P, EU:C:1999:508, para. 24, and judgment of 22 December 2008 in Gordon v Commission, C‑198/07 P, EU:C:2008:761, paras 43-45 Judgment of 12 July 2011 in Commission v Q, T‑80/09 P, EU:T:2011:347, paras 157 and 162

It is not for the Civil Service Tribunal to substitute its appraisal for that of the persons responsible for assessing the person under appraisal, as the EU institutions have a wide discretion when evaluating the work of their officials. Consequently, review by the EU judicature of the content of appraisal reports is limited to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers. It is thus not for the Civil Service Tribunal to review the merits of the administration’s assessment of the professional abilities of an official, where it involves complex value-judgments which by their very nature are not amenable to objective verification. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of an appraisal report, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent. (see paras 66, 67) See: Judgment of 1 June 1983 in Seton v Commission, 36/81, 37/81 and 218/81, EU:C:1983:152, para. 21 Judgments of 12 December 1996 in AIUFFASS and AKT v Commission, T‑380/94, EU:T:1996:195, para. 59 and 12 February 2008 in BUPA and Others v Commission, T‑289/03, EU:T:2008:29, para. 221 Judgments of 29 September 2011 in AJ v Commission, F‑80/10, EU:F:2011:172, paras 32 and 35 and the case-law cited, and 8 October 2015 in FT v AEMF, F‑39/14, EU:F:2015:117, para. 74

The reporting officer has a wide discretion to assess the work of those reported on. The existence of that discretion presupposes that the reporting officers are not obliged to include in the appraisal report all the relevant factual and legal elements supporting their assessment, or to consider and reply to all the points disputed by the person reported on. Furthermore, the purpose of the descriptive comments in an appraisal report is to justify the analytical assessments made in the report; they serve as the basis for establishing the assessment and enable the official or staff member concerned to understand the marks awarded. Consequently, having regard to their dominant role in the drawing up of an appraisal report, the comments must be consistent with the marks awarded, so that the marking must be considered to be the quantified or analytical transcription of those comments. However, in view of the wide discretion afforded to reporting officers, a possible inconsistency in an appraisal report cannot justify the annulment of that report unless the inconsistency is manifest. (see paras 88, 89) See: Judgments of 10 September 2009 in van Arum v Parliament, F‑139/07, EU:F:2009:105, para. 88, and 23 October 2013 in Solberg v EMCDDA, F‑148/12, EU:F:2013:154, para. 41 and the case-law cited

Psychological harassment is defined as comprising conduct which has led objectively to consequences that discredit the victim or impair his working conditions. As the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, it follows that its classification as harassment is subject to the condition of its being objectively sufficiently real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider it to be excessive and open to criticism. An appraisal of the performance of an official made by a superior, even if critical, cannot as such be classified as harassment. (see paras 104, 105) See: Judgments of 2 July 2009 in Giannini v Commission, F‑49/08, EU:F:2009:76, para. 136, and 16 May 2012 in Skareby v Commission, F‑42/10, EU:F:2012:64, para. 65