JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

13 September 2011





Case F-4/10





Christiana Nastvogel

v

Council of the European Union

(Civil service – Reports procedure – Staff reports – Opinion of the Reports Committee – Deterioration of analytical assessments – Dialogue between the official under appraisal and the reporting officer – Consultation of the different superiors – Second reporting officer’s knowledge of the work of the official under appraisal – Statement of reasons – Taking into account of periods of sick leave)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Nastvogel seeks annulment of her staff report for the period 1 July 2006 to 31 December 2007.

Held: The applicant’s staff report for the period 1 July 2006 to 31 December 2007 is annulled. The Council is ordered to pay all the costs.

Summary

1. Officials – Reports procedure – Staff report – Judicial review – Limits

(Staff Regulations, Art. 43)

2. Officials – Reports procedure – Staff report – Drawing up – Opinion of the Reports Committee

(Staff Regulations, Art. 43)

3. Officials – Reports procedure – Staff report – Lower marks awarded by comparison with the previous marks awarded – Obligation to state reasons – Scope

(Staff Regulations, Art. 43)

4. Officials – Reports procedure – Staff report – Justified absences

(Staff Regulations, Art. 43)

5. Officials – Reports procedure – Staff report – Drawing up – Mandatory consultation of immediate superiors

(Staff Regulations, Art. 43)

6. Officials – Reports procedure – Staff report – Drawing up – Second reporting officer

(Staff Regulations, Art. 43)

7. Officials – Reports procedure – Staff report – Drawing up – Dialogue between the reporting officer and the official under appraisal

(Staff Regulations, Art. 43)

1. 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 European Union institutions have a wide discretion when evaluating the work of their officials. Thus, save where there has been an error of fact, a manifest error of assessment or a misuse of powers, it is not for the Tribunal to review the merits of the administration’s appraisal of the professional abilities of an official where it involves complex value judgments which by their very nature are not amenable to objective verification.

(see para. 32)

See:

25 October 2005, T-96/04 Cwik v Commission, paragraph 41 and case-law cited

23 February 2010, F-7/09 Faria v OHIM, paragraph 44

2. The second reporting officer is not bound by the opinion of the Reports Committee. Consequently, it is only where the opinion of the Reports Committee mentions special circumstances of such a kind as to cast doubt on the validity or the merits of an appraisal set out in the staff report that a discrepancy between that opinion and the content of the staff report is likely to entail the annulment of the contested staff report. Furthermore, provided that the contested staff report contains a sufficient statement of reasons and the opinion of the committee does not mention special circumstances of such a kind as to cast doubt on the validity or the merits of the appraisals made by the first reporting officer, the second reporting officer cannot be required to provide further explanations of his reasons for not following the Reports Committee’s recommendations.

(see paras 33, 63)

See:

12 June 2002, T-187/01 Mellone v Commission, paragraph 33; 5 November 2003, T-98/02 Lebedef-Caponi v Commission, paragraph 61

10 September 2009, F-124/07 Behmer v Parliament, paragraph 60

3. The administration is under an obligation to state the reasons for every staff report in sufficient detail to put the person concerned in a position to comment on those reasons; compliance with those requirements is all the more important where the appraisal is less favourable than the previous appraisal. In that regard, that obligation is satisfied where the reporting officer finds that during the period covered by the contested staff report the official concerned has not displayed exceptionally high qualities in the performance of certain of his tasks. In order to assess whether a staff report is sufficiently reasoned, it is necessary to take into account all the information brought to the knowledge of the official concerned and not only the information set out in the staff report.

(see paras 58, 61)

See:

16 July 1992, T-1/91 Della Pietra v Commission, paragraph 32; 28 May 1998, T-78/96 and T-170/96 W v Commission, paragraph 141; Mellone v Commission, paragraph 27; 25 October 2005, T-50/04 Micha v Commission, paragraph 36

10 November 2009, F-93/08 N v Parliament, paragraph 86

4. While the appraisals given to an official for performance may be increased in such a way as to take into consideration the conditions in which the official performed his duties in spite of having had less actual working time owing to absences on the ground of sickness, those conditions are not automatically taken into account. Taking them into account is merely an option for those drawing up the staff report and becomes an obligation only where circumstances justify it.

The statement of reasons is not required to go into every relevant point of fact and of law, since the question whether the statement of reasons in a staff report satisfies the special provisions referred to in Article 43 of the Staff Regulations must be assessed by reference not only to its wording but also to its context and also to all the legal rules applicable to the matter concerned. Accordingly, where the reporting officer has no reason to consider that the justified absences of the official under appraisal may have had an impact on the significant improvement in his performance, he cannot be criticised for not having mentioned or taken such a circumstance into account in his staff report.

(see paras 65, 66)

See:

8 March 2005, T-277/03 Vlachaki v Commission, paragraph 83 and the case-law cited; 6 October 2009, T-102/08 P Sundholm v Commission, paragraphs 39 and 40

5. In order to carry out a full appraisal of the merits of an official throughout the assessment period, every reporting officer must question the immediate superiors under whom the official concerned worked for a significant period of time. The transmission in writing of a person’s opinion is equivalent to a consultation.

(see paras 85, 86)

See:

21 March 1985, 263/83 Turner v Commission, paragraphs 18 and 20

6. In the event of a request for a review of the staff report drawn up by the first reporting officer, it follows from Article 2(2) and Article 8(4) of the General Implementing Provisions for Article 43 of the Staff Regulations, adopted by the Council, that the second reporting officer must have sufficient distance to evaluate the entire file and, in contrast to the first reporting officer, not be sufficiently close to the official to be able to appraise, with knowledge of the facts, the merits of the official under appraisal and, furthermore, that the second reporting officer is required to refer expressly to that report in order to draw up the final staff report. The second reporting officer’s task is thus to check, quite independently, the assessments made by the first reporting officer, so that he is entitled merely to confirm the first reporting officer’s appraisal if he thinks it appropriate to do so.

(see para. 89)

See:

1 June 1983, 36/81, 37/81 and 218/81 Seton v Commission, paragraph 20

29 September 2009, F-114/07 Wenning v Europol, paragraph 100

7. The dialogue held between the official under appraisal and his reporting officer is a manifestation of the official’s rights of defence in the reports procedure applicable to him and, consequently, a staff report cannot be adopted unless the official concerned is given the proper opportunity to express his views.

In the reports procedure, the very nature and the subject-matter of the dialogue assume that there has been direct contact between the official under appraisal and the reporting officer during the period covered by the appraisal. Without a direct exchange between the reporting officer and the official 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 official concerned. Furthermore, only that direct contact is capable of encouraging a frank and detailed discussion between the reporting officer and the official under appraisal, enabling them, first, to gauge accurately the nature of the reasons for and the degree of any differences in opinion between them and, second, to arrive at a better mutual understanding.

(see paras 90, 93)

See:

13 December 2005, T-155/03, T-157/03 and T-331/03 Cwik v Commission, paragraph 156; 25 October 2006, T-173/04 Carius v Commission, paragraph 71; 25 October 2007, T-27/05 Lo Giudice v Commission, paragraph 49