JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

29 March 2007

Case F-31/05

Michael Cwik

v

Commission of the European Communities

(Officials – Appraisal – Career development report – 2003 appraisal – Action for annulment – Plea of illegality – Manifest error of assessment )

Application: brought under Articles 236 EC and 152 EA, in which Mr Cwik seeks, first, annulment of his career development report drawn up in respect of the period from 1 January to 31 December 2003 and, as far as necessary, of the decision of 24 January 2005 rejecting his complaint against the 2003 CDR and, secondly, an order that the Commission pay token damages of EUR 1.

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

Summary

1. Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

2. Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

3. Officials – Mental harassment – Definition

1. In the drawing up of career development reports, the existence of a target average cannot be regarded as limiting the freedom of judgment of the reporting officers when carrying out their appraisal of the officials.

First of all, that average does not restrict the possibility given to reporting officers to rate the assessments made of the performance of each individual official according to the extent to which his or her performance is above or below that average.

Secondly, in order to observe the target average, the reporting officers are not required to offset scores above the average with scores below it. The target average system takes account of the most commonly observed reality, namely a homogeneous distribution of the officials assessed around an average level of merit represented by the target average. In addition, the system established by the General Provisions for Implementing Article 45 of the Staff Regulations, adopted by the Commission, allows reporting officers, where the particular situation of a department differs from that common reality, also to depart from the target average. As is clear from Article 4(3) of the General Implementing Provisions, no consequence is attached to exceeding the target average by one point. Moreover, the effect of Article 4(4) and (5) of those General Implementing Provisions is that, where the target average is exceeded by one point, the directorate-general concerned, where it can give a valid reason for the surplus, may refer the matter to the joint group which examines requests for exceptions, which may decide to reduce the penalty in full or in part.

Admittedly, it is not disputed that the target average places a certain constraint on the appraisal system, by setting the reporting officers a limit as to the possibility of assessing each person in abstracto, in isolation from the merits of other officials who might be compared with him or her. However, that constraint, introduced as part of the Community’s staff management policy in order to obtain a representative assessment of officials, is not contrary to the provisions of Article 43 of the Staff Regulations. The indication of a target average of 14, on a points scale from 0 to 20, makes it possible to prevent the risk of inflation of the average mark, which would have the effect of reducing the spread of points actually used by reporting officers and therefore undermine the purpose of reporting which is to reflect as faithfully as possible the merits of the officials assessed and to enable an effective comparison to be made of them. Moreover, the indication of a target average also makes it possible to reduce the risk of a disparity in the averages of the marks given by the different Commission directorates-general which would not be based on objective considerations connected with the merits of the officials assessed.

(see paras 45-49)

See:

Judgment of 18 October 2005 in T-51/04 Leite Mateus v Commission, not published in the ECR, para. 56; T-43/04 Fardoom and Reinard v Commission [2005] ECR-SC I‑A‑329 and II‑1465, paras 51, 54 and 55; T-311/04 Buendía Sierra v Commission [2006] ECR II‑4137, para. 183

2. In the drawing up of career development reports, the purpose of the descriptive comments in the report is to justify the assessments expressed as points. Those comments serve as the basis for establishing the appraisal, which constitutes a quantified transcription of those comments, and enable the official to understand the marking awarded. Consequently, in such a report, the descriptive comments must be consistent with the marks awarded. In view of the very wide discretion conferred on the reporting officers in judging the work of those upon whom they must report, any inconsistency in a career development report can, however, warrant its annulment only if that inconsistency is manifest.

(see para. 62)

See:

T-173/04 Carius v Commission [2006] ECR-SC I‑A‑2‑243 and II‑A‑2‑1269, para. 106

3. An official who claims to have been the victim of harassment must, irrespective of the subjective perception which he may have had of the facts alleged by him, put forward a body of evidence proving that he has been subjected to conduct aimed, on an objective view, at discrediting him or at deliberately impairing his working conditions.

In that respect, in the case of an official claiming that his career development report is a further expression of the harassment he has suffered for a number of years, repeated disputes with his immediate superiors which he refers to and which relate in particular to his previous staff reports, his long-term lack of promotion and his professional isolation are not evidence that the disputed career development report was drawn up for the purpose of harassing him.

(see paras 94-95)

See:

T-7/98, T-208/98 and T-109/99 De Nicola v EIB [2001] ECR-SC I‑A‑49 and II‑185, para. 286; T-136/03 Schochaert v Council [2004] ECR-SC I‑A‑215 and II‑957, para. 41; T-144/03 Schmit v Commission [2005] ECR-SC I‑A‑101 and II‑465, para. 64