JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

23 February 2010

Case F-7/09

Marie-Hélène Faria

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Civil service — Officials — Reports — Evaluation report — 2006/2007 evaluation period — Application for annulment of the evaluation report — Manifest error of assessment — Compensation for non-material damage)

Application: brought under Articles 236 EC and 152 EA, in which Ms Faria essentially seeks, first, annulment of her evaluation report for the period from 1 October 2006 to 30 September 2007, and, second, an order that OHIM pay EUR 100 000 in damages for the non-material harm she claims to have suffered.

Held: The applicant’s evaluation report drawn up by OHIM for the period from 1 October 2006 to 30 September 2007 is annulled. The remainder of the action is dismissed. OHIM is ordered to bear its own costs and to pay three quarters of the applicant’s costs. The applicant is ordered to bear one quarter of her own costs.

Summary

1. Officials — Reports procedure — Evaluation report

(Staff Regulations, Art. 43)

2. Officials — Reports procedure — Evaluation report — Manifest error of assessment

(Staff Regulations, Art. 43)

3. Officials — Reports procedure — Evaluation report — Working time divided between two different functions

(Staff Regulations, Art. 43)

4. Officials — Reports procedure — Evaluation report — Assessment of an official’s efficiency

(Staff Regulations, Art. 43)

5. Officials — Reports procedure — Evaluation report — Purpose of general assessments

(Staff Regulations, Art. 43)

6. Officials — Reports procedure — Evaluation report — Manifest error of assessment

(Staff Regulations, Art. 43)

7. Officials — Actions — Action for damages — Annulment of the illegal act in dispute — Whether appropriate reparation for non-material damage

(Staff Regulations, Art. 91)

1. It is not for the Civil Service Tribunal to substitute its assessment for that of the persons responsible for appraising the work of the person reported on, since the Union institutions have a wide discretion to assess the work of their officials. Consequently, except in the case of errors of fact, manifest errors of assessment or misuse of powers, it is not for the Tribunal to review the validity of the administration’s assessment, in an evaluation report, of the professional abilities of an official, where it involves complex value judgements which by their very nature are not amenable to objective verification.

(see para. 44)

See:

36/81, 37/81 and 218/81 Seton v Commission [1983] ECR 1789, para. 23

T-63/89 Latham v Commission [1991] ECR II-19, para. 19; T-18/93 Marcato v Commission [1994] ECR-SC I-A-215 and II-681, para. 45; T-179/02 Pflugradt v ECB [2003] ECR-SC I-A-149 and II-733, para. 46; T-96/04 Cwik v Commission [2005] ECR-SC I-A-343 and II-1523, para. 41; T-285/04 Andrieu v Commission [2006] ECR-SC I-A-2-161 and II-A-2-775, para. 99

2. In order to prove that there has been a manifest error of assessment in the drawing-up of his evaluation report, an official of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) may rely on a comparison between the different versions of that report if they have been finalised, that is to say, countersigned by the reporting officer and the countersigning officer, and if they actually form part of the procedure for drawing up the evaluation report, laid down in the general implementing provisions for Article 43 of the Staff Regulations, adopted by the Office and applied where the official concerned disagrees with the content of the various versions of the evaluation report.

(see para. 45)

See:

F-46/06 Skareby v Commission [2008] ECR-SC I-A-1-69 and II-A-1-337, para. 95 and the case-law cited therein

3. An evaluation report which states that, throughout the reference period, an official spent half of his working time in one post and the other half in another post, and which therefore assesses his work on that basis, whereas it becomes apparent, by adding up the different percentages of working time per post, that the official spent just under two thirds of his time in the first post and just over one third in the second, is vitiated by substantive inaccuracy.

(see paras 48-49)

4. Because of its effect on the efficiency or conduct in the service of officials, the workload, where abnormally heavy, constitutes one of the factors which the institutions should not overlook when assessing the performance of their staff.

Although assessors, in exercising the discretion conferred on them, are free to determine how they will take account of an abnormally heavy workload and to decide, if appropriate, not to adjust their assessment criteria, they may not, however, ignore such a workload altogether, since the assessments contained in the evaluation report must give some indication, however brief, that the assessors have taken it into account.

The various constraints and difficulties which the assessors must take into account when evaluating an official’s efficiency or conduct in the service include those associated with staff shortages and the resulting extra burden of work for the officials concerned.

The combination of two functions by definition represents a manifest extra burden of work for an official, to which an evaluation report must therefore refer.

(see paras 52-53)

See:

T-236/05 Aldershoff v Commission [2007] ECR-SC I-A-2-13 and II-A-2-75, para. 85

5. The general assessment must reflect the analytical assessments within the same evaluation report.

Accepting that considerable improvements made to the analytical assessments need not lead to changes to the general assessments, namely those particularly taken into account during the promotion procedures, would be contrary to the requirement for consistency between those two types of assessments.

(see paras 55, 57)

See:

T-110/04 Sequeira Wandschneider v Commission [2007] ECR-SC I-A-2-73 and II-A-2-533, para. 110 and the case-law cited therein

6. An evaluation report which contains a substantive inaccuracy concerning the working time spent by the official concerned on each of the functions evaluated in the report, which makes no reference to the official’s workload and which is not consistent with the preliminary versions of that report is vitiated by a manifest error of assessment.

(see para. 58)

7. The annulment of an act of the administration which is contested by an official may in itself constitute appropriate and, in principle, sufficient reparation for any non-material damage which the official or other staff member may have suffered, except where the unlawful act of the administration contains an assessment of the official’s abilities and conduct which is capable of offending him.

(see para. 64)

See:

T-223/99 Dejaiffe v OHIM [2000] ECR-SC I-A-277 and II-1267, para. 91 and the case-law cited therein