JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

26 September 1996

Case T-192/94

Henri Maurissen

v

Court of Auditors of the European Communities

‛Action for annulment — Staff report — Admissibility — Statement of reasons — Judicial review — Limits’

Full text in French II-1229

Application for:

annulment of the decision of 12 July 1993 drawing up the applicant's staff report for the period from 1 January 1990 to 31 December 1991 and, in so far as may be necessary, annulment of the decision notified on 22 February 1994 expressly rejecting his complaint concerning that report.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant was a Grade B official at the Court of Auditors between 18 April 1983 and 1 June 1995, the date on which he was entitled to retire. During 1990 and 1991, he was a union representative and, for part of that period, served on the Staff Committee of the Court of Auditors.

On 16 July 1992, Mr M., Director ad interim of Audit Group III, drew up the applicant's staff report for the period from 1 January 1990 to 31 December 1991.

After receiving his staff report, the applicant requested two interviews with his assessor pursuant to point H.2 of the Guide to Staff Reports drawn up by the Court of Auditors following adoption of the general implementing provisions referred to in Article 43 of the Staff Regulations of Officials and other Agents of the European Communities (the Staff Regulations). Following those interviews, a second, amended, version of the staff report was signed by the assessor on 9 November 1992.

On 27 November 1992, the applicant appealed to the appeal assessor against his report. After listening to what he had to say, the Joint Committee on Staff Reports took the view that the irregular nature of the applicant's attendance at work had already been highlighted elsewhere in the staff report and it proposed the removal, at the second subparagraph of point 7(b) of the report, of the sentence: ‘Mr Maurissen, for that reason, did not carry out his duties in a regular and continuous manner. ’

On 12 July 1993, the appeal assessor adopted the findings of the Joint Committee and amended the staff report in the manner which it had suggested. The applicant received the definitive version of the report on 14 July 1993.

On 14 October 1993, the applicant submitted a complaint against the staff report under Article 90(2) of the Staff Regulations. That complaint, which was addressed to ‘the appointing authority of the Court of Auditors’ and marked ‘through official channels’, was received on the fax machine of the office of the President of the Court of Auditors at 10.00 p.m. on that date.

That complaint was the subject of a decision of 9 February 1994, by which the Secretary-General of the Court of Auditors, claiming that he lacked competence to amend a staff report, refused to give an opinion on the merits of the complaint. The applicant was notified of that decision on 22 February 1994.

On 13 May 1994, the applicant brought the present action pursuant to Article 173 of the EC Treaty. The Court of Auditors raised an objection of inadmissibility on 22 July 1994. The decision on that objection was reserved for the final judgment.

Admissibility

The alleged irregularity of the legal basis of the action

The Court points out that proceedings involving officials must, with regard both to the pre-litigation procedure and the actual litigation phase, follow the specific courses prescribed in Articles 90 and 91 of the Staff Regulations and in Article 179 of the Treaty (paragraph 14).

In this case, the applicant, prior to bringing the action, brought the matter before the Joint Committee on Staff Reports of the Court of Auditors and submitted a complaint to the appointing authority against his staff report. He thus placed himself within the framework of the remedies established by Articles 90 and 91 of the Staff Regulations and by Article 179 of the Treaty (paragraph 15).

In those circumstances, the reference in the application to Article 173 of the Treaty is an irregularity which does not render the application inadmissible (paragraph 16).

The alleged infringement of the rules governing the pre-litigation procedure

The first part of the plea in law, relating to the submission of the complaint and the person to whom it was addressed

The making of a formal complaint, within the meaning of Article 90 of the Staff Regulations, is not a necessary precondition for bringing an action against a staff report. However, when the official chooses to lodge an administrative complaint, he must observe all the constraints attaching to this procedure (paragraph 22).

See: T-29/89 Moritz v Commission [1990] ECR II-787, para. 15; T-l/91 Della Pietra v Commission [1992] ECR II-2145, para. 24

In the circumstances of this case, the Court finds that those constraints were satisfied by the complaint addressed to the appointing authority and marked ‘through official channels’, sent to the fax machine of a department of the Court of Auditors which was not that of the immediate superior of the official who was the subject of the report (paragraph 26).

See: 54/77 Herpels v Commission [1978] ECR 585, para. 47

The second part of the plea, alleging that the complaint was submitted out of time

The method of calculating the three-month period laid down in Articles 90 and 91 of the Staff Regulations for the complaint and the action has been specified by the Court of Justice. That period expires at the end of the day in the final month which bears the same number as the day of the event or of the measure which set that period running (paragraph 28).

See: 38/84 J.K. v Parliament [1985] ECR 1267, para. 20; 152/85 Misset v Council [1987] ECR 223, paras 8 and 9

Since the complaint reached the Court of Auditors on 14 October 1993, and the applicant received the definitive staff report on 14 July 1993, the complaint was lodged within the prescribed period (paragraph 29).

The third part of the plea, based on the form of the complaint

Complaints within the meaning of Article 90(2) of the Staff Regulations are not subject to any conditions as to form (paragraph 31).

See: Herpels v Commission, cited above, para. 47; T-506/93 Moat v Commission [1995] ECRSC II-147. para. 18

In this case, the complaint was properly lodged by the simple transmission of the fax document signed by the applicant's lawyer (paragraph 34).

It follows from all of the foregoing that the action must be held to be admissible (paragraph 36).

Substance

The alleged breach of Article 24a of the Staff Regulations, Article 1 of Annex II thereto, and of the framework agreement of 5 July 1991

The final paragraph of Article 1 of Annex II to the Staff Regulations provides that the duties undertaken by members of the Staff Committee and by officials appointed by the Committee to organs set up under the Staff Regulations or by the institution are deemed to be part of their normal service in their institution. Article 24a of the Staff Regulations affirms, moreover, the freedom to engage in trade-union activities. The institutions are therefore obliged to create the conditions necessary to ensure that staff-representation activities can be carried out. In this regard, an official may not be penalized for performing duties in bodies or associations representing staff (paragraph 40).

See: C-193/87 and C-194/87 Maurissen and European Public Service Union v Court of Auditors [1990] ECR I-95

It follows from those rules that, with regard to staff reports, the constraints imposed on an official by his activities as a staff representative must be taken into account by his assessors in such a way that he is not penalized for carrying them out. That requirement is, in particular, reflected in the obligation imposed on assessors to take account of the fact that the person concerned is able to perform the duties attaching to his post only for a number of working days which is lower than the normal number of working days over the reference period. Consequently, the official must be assessed on the basis of his actual performance during the time devoted to the service of the department to which he has been posted. Staff-representation activities cannot fall to be judged by the assessors since the latter have no authority in that regard. Such activities take place outside the sphere of official duties within which, pursuant to Article 43 of the Staff Regulations, the ability, efficiency and conduct of each official fall to be assessed (paragraph 41).

See: T-23/91 Maurissen v Court of Auditors [1992] ECR II-2377, para. 14

In principle, the time which the official devotes to staff representation cannot therefore be the subject of an evaluation by the assessors. Even though it is not possible to discount the existence of circumstances relating, in particular, to the time devoted to such tasks, and of a nature such as to justify in some institutions the introduction of ad hoc systems of assessment, the adoption of such a system is not indispensable, in the present case, in order to safeguard the guarantees which the Staff Regulations confer on the applicant as a staff representative (paragraph 42).

In so far as all of the tasks performed by the applicant in the department to which he was posted were the subject of the assessment, the report drawn up for the period 1990 to 1991 satisfied the requirements of the Staff Regulations (paragraph 43).

The allegation of manifest errors of assessment

Staff reports contain assessments which are amenable to judicial review only in the case of irregularity of form, manifest errors of fact or misuse of powers (paragraph 55).

See: 6/79 and 97/79 Grassi v Council [1980] ECR 2141; T-63/89 Latham v Commission [1991] ECR II-19

In this regard, the Court finds that the applicant has not adduced any evidence to establish a manifest error in the calculation of the time devoted to his duties as a member of the Staff Committee and as a union representative during the period in question (paragraph 56).

With regard to the question whether the ground of complaint alleging failure to take account of the period from 1 January 1991 to 25 January 1991 is admissible, the Court points out that an appeal against a staff report is a purely internal procedure which is not imposed on the institutions by Article 43 of the Staff Regulations. Article 43 merely provides that there must be a periodic staff report. It is the institutions which, with a view to protecting officials, may choose, by way of implementing measures adopted under Article 110 of the Staff Regulations, to introduce an appeals system or a second assessment system. Such a system is not therefore in the nature of a pre-litigation procedure, which is the characteristic feature of the complaint provided for by Articles 90 and 91 of the Staff Regulations and which is designed to permit and encourage the amicable settlement of differences which have arisen between officials and the administration, subject to the official's being obliged to rely on the same grounds in the complaint and in the application to the Court. The grounds relied on in an appeal against a staff report cannot be required, as is the case with respect to a complaint, to correspond to those put forward in an action brought against that same measure (paragraph 60).

See: 52/85 Rihoux and Others v Commission [1986] ECR 1555, para. 12; Della Pietra v Commission, cited above, para. 24

As to whether the ground is well founded, the staff report indicates all of the tasks performed during the period covered by the report. Consequently, the mere fact that the report does not specify which of two tasks was performed during a limited period of 24 days cannot justify the conclusion that the latter period was not taken into account for the purposes of the report (paragraph 63).

The alleged breach of the obligation to state reasons

Staff reports are not measures for the purpose of Article 25 of the Staff Regulations but are governed by special provisions referred to in Article 43 thereof. Paragraph E.2.2.(b) of the Court of Auditor's Guide to Staff Reports, which has the legal force of an internal directive, states that commentaries on analytical assessments are optional where, as in this case, the assessments are neither the highest possible nor the lowest possible. In the circumstances, those commentaries were therefore optional (paragraph 68).

See: 122/75 Küster v Parliament [1976] ECR 1685; Maurissen v Court of Auditors, cited above; T-33/91 Williams v Court of Auditors [1992] ECR II-2499. para. 66

Assuming, however, that this ground of complaint may be understood as also directed to the general assessments contained in the contested staff report, it must be pointed out that, even though the Court is not entitled to interfere with the assessment of an official made in a staff report, which includes the evaluation of complex facts, the reasons stated for such acts must enable the applicant to judge whether they are well founded and, if need be, to enable the Court to exercise its powers of review (paragraph 69).

See: Maurissen v Court of Auditors, cited above

In this case, the general assessments are in accordance with the analytical assessments and with the requirements of the Guide to Staff Reports, which, with regard to that part of the report, is aimed at distinguishing the official being assessed from his colleagues by bringing to light those features which are specific to him. By stating that, despite his abilities, the official's contribution did not exceed the minimum necessary and was notable for its slowness, the assessor characterized the applicant's performance in a manner which was summary but adequate, having regard to the powers of appraisal conferred on assessors (paragraph 70).

The plea in law based on abuse of procedure

There is misuse of powers, of which abuse of procedure is merely one form, only if there is objective, relevant and consistent evidence that the contested measure pursued a purpose other than that assigned to it by the applicable provisions of the Staff Regulations (paragraph 75).

See: T-46/89 Pitrone v Commission [1990] ECR II-577, paras 70 and 71 ; Maurissen v Court of Auditors, cited above, para. 28

So far as staff reports are concerned, their function, as may be seen from Article 43 of the Staff Regulations, is to provide an assessment of the ability, efficiency and conduct of each official. The purpose of a staff report is therefore to provide the administration with periodic information on the performance by officials of their duties (paragraph 76).

See: Grassi v Council, cited above, para. 20

Since staff reports are drawn up at regular intervals in order to assess the performance of officials during a given period, a variation in that assessment from one reference period to another, or vis-à-vis a probationary period, cannot in itself constitute evidence of misuse of powers (paragraph 78).

See: Maurissen v Court of Auditors, cited above, para. 31

Operative part:

The application is dismissed.