JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

6 March 2008

Case F-46/06

Carina Skareby

v

Commission of the European Communities

(Civil service – Officials – Appraisal – Career development report – 2004 appraisal procedure – Objectives – Obligation to state reasons – Manifest error of assessment)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Skareby essentially seeks, first, annulment of her career development report for the period from 1 January to 31 December 2004 and, second, an order for the Commission to pay damages for the professional, material and non-material harm which she claims to have suffered.

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

Summary

1. Officials – Reports procedure – Career development report – Drawing up – Communication of the draft career development report

(Staff Regulations, Art. 43)

2. Officials – Reports procedure – Career development report – Duty to set goals – Scope

(Staff Regulations, Art. 43)

3. Officials – Reports procedure – Career development report – Drawing up – Late

(Staff Regulations, Art. 43)

4. Officials – Actions – Pleas in law

5. Officials – Reports procedure – Career development report – Need for consistency between the assessments and the comments

(Staff Regulations, Art. 43)

6. Officials – Reports procedure – Career development report – Judicial review – Limits

(Staff Regulations, Art. 43)

7. Officials – Actions – Pleas in law

1. Under the terms of the sixth subparagraph of Article 3(1) of the general implementing provisions concerning the Commission’s external service, adopted by the Commission, the career development report finalised by the second reporting officer and the countersigning officer is to be communicated to the holder of the post. Those general implementing provisions do not provide for a draft career development report to be communicated to the holder before it is finalised.

An official cannot therefore rely on a comparison between the draft and final versions of his career development report for the reference period in question in order to seek annulment of the latter on the ground of a difference between the assessments in the two documents, since the communication of the draft career development report does not actually form part of the procedure for drawing up the career development report in question. The reporting officers are therefore not required to explain, in the career development report, the reasons why the assessments have been altered from the draft version of the report.

(see paras 54 , 58)

2. It is clear from the fourth subparagraph of Article 8(5) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, that the administration has a duty to set goals and assessment criteria for the holder of the post. Under that provision, the formal interview that is held between the reporting officer and the holder of the post at the start of each appraisal procedure should cover not just the appraisal of that person’s performance during the reference period, which runs from 1 January to 31 December of the year preceding that in which the appraisal procedure is conducted, but also the setting of targets for the year following the reference period. Those targets constitute the reference basis for assessing his efficiency.

(see para. 64)

See:

F-42/06 Sundholm v Commission [2007] ECR-SC I-A-0000, para. 31

3. In the absence of exceptional circumstances, a career development report cannot be annulled on the sole ground that it was drawn up late. Although delay in drawing up a career development report is capable of giving the official concerned a right to a remedy, such delay cannot affect the validity of the career development report or, in consequence, justify the annulment thereof.

(see para. 75)

See:

T-278/01 Den Hamer v Commission [2003] ECR-SC I‑A‑139 and II‑665, para. 32; T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission [2005] ECR-SC I‑A‑411 and II‑1865, para. 96; T‑110/04 Sequeira Wandschneider v Commission [2007] ECR-SC I‑A-0000, para. 39

4. It is of little consequence that the claim by an applicant that a statement of reasons for an act of an institution is lacking or inadequate is made late, since, as a matter of public interest, it may, and even must, be examined by the Community judicature of its own motion. No applicant can be barred from relying on that plea in law on the sole ground that he did not make the claim at an earlier stage.

(see para. 96)

See:

C-166/95 P Commission v Daffix [1997] ECR I‑983, para. 24

T-153/95 Kaps v Court of Justice [1996] ECR-SC I‑A‑233 and II‑663, para. 75; T-171/05 Nijs v Court of Auditors [2006] ECR-SC I-A-2-195 and II‑A‑2‑999, paras 31 and 32

5. A career development report is not manifestly inconsistent if some sections in that report contain a positive assessment contradicted by a criticism. It is not manifestly inconsistent to recognise the quality of an official’s work on a general level while also underlining some of his weaknesses or difficulties.

(see para. 103)

See:

T-165/04 Vounakis v Commission [2006] ECR-SC I‑A‑2‑155 and II‑A‑2‑735, para. 94

6. It is not for the Tribunal to substitute its assessment for that of the persons responsible for appraising the work of the official under appraisal. The institutions of the Community enjoy a wide discretion in appraising the work of their officials. Value judgements relating to officials in career development reports are not subject to review by the Court except as regards any irregularities of form or manifest errors of fact vitiating the assessments made by the administration, or any misuse of power.

(see para. 119)

See:

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

T-33/91 Williams v Court of Auditors [1992] ECR II‑2499, para. 43; T-144/03 Schmit v Commission [2005] ECR-SC I‑A‑101 and II‑465, para. 70

7. There is no misuse of powers, of which abuse of process is merely one form, unless there is objective, relevant and consistent evidence which makes it possible to establish that the contested act pursued an aim other than that ascribed to it by the applicable provisions of the Staff Regulations.

In that respect, it is not sufficient for the interested party to refer to certain facts in support of his claims; he must also adduce evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability, failing which the material accuracy of a party’s claims cannot be called into question.

(see paras 156-157)

See:

T-111/99 Samper v Parliament [2000] ECR-SC I‑A‑135 and II‑611, para. 64; T-152/00 E v Commission [2001] ECR-SC I‑A‑179 and II‑813, para. 69