JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

13 September 2011





Case F-68/10





Thorsten Behnke

v

European Commission

(Civil service – Officials – 2009 evaluation and promotion exercise – Reasoning of the joint evaluation and promotion committee – Manifest error of assessment)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Behnke seeks annulment of the Commission’s decisions classifying him in performance group II in the evaluation exercise relating to the period 1 January to 31 December 2008 and awarding him 5 promotion points for the 2009 promotion exercise.

Held: The application is dismissed. The Commission, in addition to bearing its own costs, is ordered to pay one quarter of the applicant’s costs. The applicant is ordered to bear three quarters of his own costs.

Summary

1. Officials – Actions – Prior administrative complaint – Correspondence between complaint and action

(Staff Regulations, Arts 90 and 91)

2. Officials – Reports procedure – Joint Evaluation Committee – Opinions

(Staff Regulations, Art. 43)

3. Officials – Promotion – Consideration of comparative merits – Administration’s discretion – Factors capable of being taken into consideration

(Staff Regulations, Arts 43 and 45)

4. Officials – Reports procedure – Evaluation report – Necessary consistency between descriptive comments and marks awarded

(Staff Regulations, Art. 43)

5. Officials – Reports procedure – Evaluation report – Formal setting of objectives

(Staff Regulations, Art. 43)

1. Subject to pleas alleging illegality, and of course to grounds raising a public-policy issue, the cause of action of the dispute will normally be deemed to be altered, and the action therefore held inadmissible on the ground that it fails to observe the rule requiring correspondence between the complaint and the application, only where the applicant, who in his administrative complaint criticises solely the formal validity of the act adversely affecting him, including its procedural aspects, raises substantive pleas in the application, or in the opposite case where the applicant, after having disputed in the complaint only the substantive legality of the act adversely affecting him, submits an application containing pleas relating to the formal validity of that act, including its procedural aspects.

An official who did not raise a plea going to formal legality in his complaint cannot raise for the first time in his application a plea alleging the formal illegality of his evaluation report.

(see paras 32, 33)

See:

1 July 2010, F-45/07 Mandt v Parliament, para. 120

2. The Joint Evaluation Committee’s obligation to rule on the content of the evaluation reports is a substantial procedural requirement. However, the General Rules on the implementation of Article 43 of the Staff Regulations adopted by the Commission made no provision for a formal voting procedure in that committee. Nor can any distinction, other than a purely semantic one, be drawn between an opinion delivered by consensus and an opinion delivered unanimously. None the less, the adoption of an opinion by that committee by consensus cannot exempt it from its obligation to state reasons. Article 8(4) of those general implementing rules provides that even opinions adopted unanimously must set out the reasons for the operational finding.

Where an opinion is worded in a stereotyped form and makes no reference to any factors relating to an official’s particular situation, that opinion is not reasoned.

However, infringements of the procedural rules, particularly those concerning the drawing-up of an evaluation report, constitute substantive irregularities such as to invalidate the report only where the official concerned shows that the content of the report might have been different had those infringements not occurred.

(see paras 38-42)

See:

22 December 2008, C-198/07 P Gordon v Commission, paras 71 to 75

9 March 1999, T-212/97 Hubert v Commission, para. 53 and the case-law cited

3. At the Commission there is a close relationship between the evaluation report, which determines the level of performance, and the subsequent decision awarding promotion points, although the appointing authority retains a wide discretion, in the context of the promotion exercise, in setting the precise number of promotion points. Thus the reporting and promotion procedures at the Commission are indissociable. In that regard, it is accepted that, in the evaluation of an official’s merits, the appointing authority may take account of an official’s recent promotion.

In addition, the administration is required, in assessing the merits of an official, to take into consideration the difficult conditions in which he performed his duties and in particular the fact that his unit had fewer staff than was envisaged when the objectives assigned to that official were fixed.

(see paras 52, 56, 62)

See:

31 January 2007, T-236/05 Aldershoff v Commission, para. 85 et seq.

21 February 2008, Semeraro v Commission, para. 56; 23 February 2010, F-7/09 Faria v OHIM, para. 53

4. The purpose of the descriptive comments in an evaluation report is to justify the analytical assessments made in the report. Those comments serve as the basis for establishing the evaluation and enable the official to understand the mark awarded. Consequently, having regard to their dominant role in the drawing-up of an evaluation report, the comments must be consistent with the marks awarded, and the marking must be considered to be the quantified or analytical transcription of those comments. In view of the very wide discretion which assessors are recognised as having when making judgments in relation to the work of persons upon whom they must report, a possible inconsistency in a staff report nevertheless cannot justify the annulment of that report unless it is a manifest inconsistency.

(see para. 78)

See:

13 December 2007, F-28/06 Sequeira Wandschneider v Commission, paras 109 and 110

5. Under Article 5 of the General Provisions implementing Article 43 of the Staff Regulations adopted by the Commission, the purpose of the evaluation of an official’s performance is to assess to what extent the objectives fixed were achieved. It follows from that article that the objectives must be defined on the assumption that normal working conditions will prevail. Where the administration decides to base the evaluation of its officials on duly formalised objectives, the document specifying the objectives assigned to an official constitutes an essential factor in the assessment of his performance.

(see para. 79)

See:

10 November 2009, F-93/08 N v Parliament, para. 64