CELEX: 62005CJ0344
Language: en
Date: 2006-11-09
Title: Judgment of the Court (Second Chamber) of 9 November 2006. # Commission of the European Communities v Joël De Bry. # Appeal - Official - Reporting procedure - Career development report - 2001/2002 reporting period - Rights of the defence - Article 26, second paragraph, of the Staff Regulations. # Case C-344/05 P.

Case C-344/05 P
      Commission of the European Communities
      v
      Joël De Bry
      (Appeal – Official – Reporting procedure – Career development report – 2001/02 reporting period – Rights of the defence – Article 26, second paragraph, of the Staff Regulations)
      Summary of the Judgment
      Officials – Reports procedure – Observance of the rights of the defence 
      (Staff Regulations, Art. 26, first and second paras, and Art. 43)
      As a procedural guarantee, the fundamental principle that the rights of the defence must be observed cannot be interpreted,
         in the field of the appraisal of European Communities staff, as imposing, before the procedure leading to such an appraisal,
         any obligation to give prior warning. That principle must allow the individual concerned, during the appraisal procedure,
         to defend himself against any criticism of his conduct which might be taken into account, but its role is not to allow him
         to adapt his behaviour in the future in order to avoid the conduct proven being actually taken into account against him. Improving
         one’s conduct in the service is an objective which goes beyond the scope of observance of the rights of the defence. That
         objective is in fact served by the staff report. 
      
      In addition, the first and second paragraphs of Article 26 of the Staff Regulations, the purpose of which is to guarantee
         the official’s right of defence relate to documents which already exist, and preclude, during the appraisal procedure, such
         documents from being taken into account to the detriment of the official under appraisal without having been communicated
         to him before being placed on his personal file, but do not require documents formalising any criticism of the conduct of
         the individual concerned to be prepared beforehand.
      
      It follows that neither the fundamental principle of observance of the rights of the defence nor the first and second paragraphs
         of Article 26 of the Staff Regulations make the fact that a matter may be held against an official in his appraisal report
         subject to the drawing-up, prior to the procedure leading to the adoption of that report, of a written warning and the communication
         of that warning to the individual concerned. 
      
      (see paras 39, 41, 43-44, 52)
JUDGMENT OF THE COURT (Second Chamber)
      9 November 2006 (*)
      
      (Appeal – Official – Reporting procedure – Career development report – 2001/2002 reporting period – Rights of the defence – Article 26, second paragraph, of the Staff Regulations)
      In Case C-344/05 P,
      APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 21 September 2005,
      Commission of the European Communities, represented by L. Lozano Palacios and H. Kraemer, acting as Agents, with an address for service in Luxembourg,
      
      applicant,
      the other party to the proceedings being:
      Joël De Bry, official of the Commission of the European Communities, residing in Woluwe-St-Lambert (Belgium), represented by S. Orlandi,
         avocat, with an address for service in Luxembourg,
      
      applicant at first instance,
      THE COURT (Second Chamber),
      composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, J. Klučka, R. Silva de Lapuerta and L. Bay Larsen (Rapporteur),
         Judges,
      
      Advocate General: M. Poiares Maduro,
      Registrar: R. Grass,
      having regard to the written procedure,
      after hearing the Opinion of the Advocate General at the sitting on 13 July 2006,
      gives the following
      Judgment
      1        By its appeal, the Commission of the European Communities seeks the annulment of the judgment delivered by the Court of First
         Instance of the European Communities on 12 July 2005 in Case T‑157/04 De Bry v Commission, not published in the ECR (‘the judgment under appeal’), by which the Court of First Instance set aside the Commission decision
         of 26 May 2003 (‘the contested decision’) making definitive the career development report (‘CDR’) of Mr De Bry, an official,
         in respect of the period from 1 July 2001 to 31 December 2002. 
      
       Legal context
      2        The first and second paragraphs of Article 26 of the Staff Regulations of Officials of the European Communities, in the version
         applicable to the facts of these proceedings  (‘the Staff Regulations’) provide:
      
      ‘The personal file of an official shall contain:
      (a)      all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct;
      (b)      any comments by the official on such documents.
      Documents shall be registered, numbered and filed in serial order; the documents referred to in subparagraph (a) may not be
         used or cited by the institution against an official unless they were communicated to him before they were filed.’
      
      3        Article 43 of the Staff Regulations provides: 
      
      ‘The ability, efficiency and conduct in the service of each official, with the exception of those in Grades A1 and A2, shall
         be the subject of a periodical report made at least once every two years as provided for by each institution in accordance
         with Article 110. 
      
      The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant.’
      4        The first and second paragraphs of Article 110 of the Staff Regulations provide that the general provisions for giving effect
         to those regulations are to be adopted by each institution after consulting its Staff Committee and the Staff Regulations
         Committee and are then to be brought to the attention of the staff. 
      
      5        On 26 April 2002, the Commission adopted a decision on general provisions for implementing Article 43 of the Staff Regulations
         (‘the GIP 43 decision’), by which it introduced a new system of appraisal. 
      
      6        Article 1 of the GIP 43 decision provides for the drawing-up, on an annual basis, of a CDR.
      
      7        Articles 7 and 8 govern the appraisal procedure. Following a self‑assessment drawn up by the official under appraisal and
         a dialogue between that official and the reporting officer, his head of unit, the CDR is compiled by the reporting officer
         and the countersigning officer, the reporting officer’s hierarchical superior, who transmit it to the individual concerned.
         The official under appraisal then has the right to request a dialogue with the countersigning officer, who can either amend
         or confirm the CDR. That report is then sent again to the individual concerned. The official under appraisal can then ask
         the countersigning officer to refer the matter to the Joint Evaluation Committee (‘the JEC’). The JEC checks that the CDR
         has been drawn up fairly, objectively and in accordance with normal reporting standards. It also verifies that the procedures
         have been correctly followed, in particular as regards dialogues and time-limits. It produces a reasoned opinion. That opinion,
         which is notified to the official under appraisal, the reporting officer and the countersigning officer, is transmitted to
         the appeal assessor, the hierarchical superior of the countersigning officer, who either confirms or amends the CDR before
         sending it to the individual concerned. If the appeal assessor departs from the recommendations contained in the JEC’s opinion,
         he is required to justify his decision.
      
      8        In July 2002, the Commission published a document entitled ‘Career Development Review System – Guide’ (‘the Appraisal Guide’).
         According to that guide, the CDR is based on each official’s ability, efficiency and conduct in the service. The three headings
         of appraisal thus set out are divided into separate levels including a maximum of six, ten and four points respectively.
      
       The factual background to the dispute
      9        Mr De Bry, a Grade A5 official assigned to the Commission’s Secretariat General, was the subject of a CDR dated 18 February
         2003 in respect of the period from 1 July 2001 to 31 December 2002. 
      
      10      In accordance with the GIP 43 decision, he requested a review of his appraisal. On 19 March 2003 the countersigning officer
         made some amendments to the descriptive comments, but the marks awarded remained unchanged. 
      
      11      Under the heading ‘Conduct in the service’, the following comment was added:
      
      ‘Mr De Bry is always available to finish his work by working overtime during the week, and even at weekends. However this
         availability outside normal working hours is frequently accompanied by failure to comply with the normal hours of work.’
      
      12      On 26 March 2003, Mr De Bry requested that the matter be referred to the JEC. His action was dismissed by the contested decision,
         adopted by the appeal assessor.  
      
      13      On 26 August 2003, Mr De Bry submitted a complaint under Article 90(2) of the Staff Regulations. That complaint was rejected
         by the Appointing Authority on 6 January 2004.  
      
       The action before the Court of First Instance and the judgment under appeal
      14      By application lodged at the Registry of the Court of First Instance of the European Communities on 22 April 2004, Mr De Bry,
         brought an action for annulment of the contested decision.
      
      15      He essentially relied on four pleas, alleging, respectively:
      
      –        infringement of Article 14 of the Staff Regulations, under which any official who, in the performance of his duties, is called
         upon to decide on a matter in the handling or outcome of which he has a personal interest such as to impair his independence
         must inform the Appointing Authority of this; 
      
      –        breach of the obligation to state reasons;
      –        –       inconsistency between some descriptive comments and the corresponding  numerical marking;
      –        breach of the rights of the defence.
      16      In connection with the fourth plea, he submits that the criticism that he failed to comply with the normal hours of work could
         only be taken into account in a CDR if the official had had the opportunity beforehand to submit his comments on that criticism,
         which had not happened in the present case. The alleged lack of punctuality should have given rise, when it occurred, to warnings
         enabling him to express his views.  
      
      17      The Court of First Instance called on the Commission to set out its views on whether Article 26 of the Staff Regulations and
         the case-law which states that the purpose of that provision is to ensure that the rights of the defence of the official are
         observed were relevant to the appraisal procedure at issue.
      
      18      The Commission responded that Article 26 of the Staff Regulations presupposes that there are ‘documents’ and does not require
         that documents be created, in particular in the form of written warnings addressed to the official.
      
      19      At paragraph 94 of the judgment, the Court of First Instance upheld the fourth plea, ruling, so far as the criticism relating
         to working hours is concerned, that the Commission had infringed the rights of the defence guaranteed by Article 26 of the
         Staff Regulations.
      
      20      Consequently, in paragraphs 95 and 96 of that judgment, it upheld the third plea in so far as, since the finding of a lack
         of punctuality was unlawful, the corresponding criticism should be deemed not to be included in the CDR, with the result that
         significant doubt arose as to the consistency between the mark ‘satisfactory’ and the comments included under the heading
         ‘Conduct in the service’.
      
      21      The Court of First Instance rejected the remainder of the pleas raised by the applicant.
      
      22      Finally, it annulled the contested decision and ordered the Commission to pay the costs. 
      
      23      In paragraph 83 of the judgment under appeal, the Court of First Instance ruled that observance of the rights of the defence
         of the official under appraisal implies that, in order for it to be capable of being  relied upon against him, the factual
         information, such as that at issue in the present case, must have been recorded in ‘documents’ within the meaning of the first
         and second paragraphs of Article 26 of the Staff Regulations, which have been previously placed on his personal file or at
         least previously brought to his notice. 
      
      24      In paragraph 86 of its judgment, the Court of First Instance held that, for there to have been no breach of the rights of
         the defence to which he is entitled under Article 26 of the Staff Regulations, the official should have been given a written
         warning about the finding of his lack of punctuality within an appropriate period, that is to say, within a reasonable period
         following the matter for which he was criticised, which would have enabled him, inter alia, to effectively defend his interests
         either by challenging that criticism or by taking note of it in order to improve his conduct in the service, if only in order
         to obtain a good mark. 
      
      25      The Court of First Instance also found, in addition, in paragraph 91 of the judgment under appeal, that section 3.1 of the
         Appraisal Guide, which the Commission has imposed on itself as a rule of conduct, requests reporting officers to be careful,
         throughout the appraisal period, to collect examples of work, to keep copies of them or write notes. In the same paragraph
         of the judgment under appeal, the Court of First Instance observed that, in accordance with section 3.2 of the Appraisal Guide,
         feedback should be related to specific areas of behaviour and be provided as quickly as possible after the work has been done.
      
       Forms of order sought by the parties before the Court of Justice
      26      The Commission claims that the Court of Justice should:
      
      –        annul the judgment under appeal;
      –        pass final judgment itself on the dispute, allowing the claims which it submitted at first instance and, consequently, dismiss
         the application; 
      
      –        in the alternative, refer the case back to the Court of First Instance;
      –        order Mr De Bry to pay the costs of the proceedings, including his own costs in the proceedings before the Court of First
         Instance.  
      
      27      Mr De Bry contends that the Court of Justice should:
      
      –        dismiss the appeal as being manifestly unfounded;
      –        order the Commission to pay the costs.
       The appeal
      28      The appellant raises a single plea for annulment, subdivided into two branches, alleging that the Court of First Instance
         erred in law in the application, first, of the principle of the observance of the rights of the defence and, secondly, of
         the second paragraph of Article 26 of the Staff Regulations.  
      
       Arguments of the parties
      29      In the first branch of its plea, the Commission claims that the Court of First Instance misinterpreted the scope of the general
         principle that the rights of the defence must be observed.
      
      30       Those rights, it submits, can be exercised solely within the actual procedure which is liable to culminate in the adoption
         of a measure having an adverse effect. 
      
      31      They do not imply an obligation on the originator of the measure having an adverse effect to warn the person concerned before
         initiating such a procedure.
      
      32      In the second branch of its plea, the Commission states that the obligation, upheld by the Court of First Instance, to record
         in writing any information on the basis of which an official may be criticised does not follow from the second paragraph of
         Article 26 of the Staff Regulations.
      
      33      That latter provision presupposes that there are ‘documents’, within the meaning of section (a) of the first paragraph of
         that article. It does not lay down an obligation to create such documents.
      
      34      Mr De Bry submits that Article 26 of the Staff Regulations is designed to ensure that the official’s rights of defence are
         observed. The purpose of that article is to prevent decisions of the Appointing Authority affecting the administrative status
         and career of the official under appraisal from being based on matters concerning his conduct which are not placed on his
         personal file or communicated to the individual concerned.  
      
      35      The Court of First Instance was thus fully entitled to annul the contested decision, in accordance with settled case-law.
         
      
      36      Mr De Bry adds that the Court of First Instance was in fact required to ascertain whether the Commission had applied, at the
         time the CDR was drawn up, the new internal directives stemming in particular from section 3.1 of the Appraisal Guide, with
         which it was required to comply.  
      
       Findings of the Court
      37      According to settled case-law, observance of the rights of the defence is, in all procedures initiated against a person which
         are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must
         be guaranteed even in the absence of any rules governing the procedure in question (see, inter alia, Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 27, and Case   C‑288/96 Germany v Commission [2000] ECR I‑8237, paragraph 99).
      
      38      That principle requires that the person concerned must have been afforded the opportunity to effectively make known his views
         on any incriminating information which might be taken into account in the document to be drawn up (see, to that effect, Belgium v Commission, paragraph 27, in fine, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, paragraph 99).
      
      39      However, as a procedural guarantee, the fundamental principle that the rights of the defence must be observed cannot be interpreted,
         in the field of the appraisal of European Communities staff, as imposing, before the procedure leading to such an appraisal,
         any obligation to give prior warning. 
      
      40      That finding is not affected by the first and second paragraphs of Article 26 of the Staff Regulations in so far as they make
         the reliance, as against an official, of all reports on his ability, efficiency and conduct subject to the requirement of
         being communicated to the individual concerned before being placed on his personal file. 
      
      41      In fact, the corresponding provisions, the purpose of which is to guarantee the official’s right of defence (see, inter alia,
         Case 88/71 Brasseur v Parliament [1972] ECR 499, paragraph 11, and Case 233/85 Bonino v Commission [1987] ECR 739, paragraph 11), relate to documents which already exist. They preclude, during the appraisal procedure, such
         documents from being taken into account to the detriment of the official under appraisal without having been communicated
         to him before being placed on his personal file. They do not require documents formalising any criticism of the conduct of
         the individual concerned to be prepared beforehand. 
      
      42      Article 26 of the Staff Regulations therefore no more imposes an obligation to give prior warning than does the fundamental
         principle itself. 
      
      43      The fundamental principle of observance of the rights of the defence must allow the individual concerned, during the appraisal
         procedure, to defend himself against any criticism of his conduct which might be taken into account. That purpose is given
         effect to, in particular, by the first and second paragraphs of Article 26 of the Staff Regulations and by the GIP 43 decision,
         the provisions of which guarantee that the principle that both parties must be heard will be observed throughout that procedure,
         as is apparent from paragraph 7 of this judgment. 
      
      44      It is not the role of the fundamental principle of observance of the rights of the defence to allow the official to adapt
         his behaviour in the future in order to avoid the conduct proven being actually taken into account against him. As the Advocate
         General noted in points 53 and 54 of his Opinion, improving one’s conduct in the service is an objective which goes beyond
         the scope of observance of the rights of the defence. That objective is in fact served by the staff report.
      
      45      Therefore, by accepting, in paragraphs 83 and 86 of the judgment under appeal, that there was a breach of the rights of the
         defence guaranteed by Article 26 of the Staff Regulations by reason of the lack of a prior written warning, the Court of First
         Instance misinterpreted both the fundamental principle of observance of the rights of the defence and Article 26 of the Staff
         Regulations.  
      
      46      That finding is not affected by the reasoning contained in paragraph 91 of the judgment under appeal, relating to the Appraisal
         Guide, which, according to the Court of First Instance, the Commission has adopted as a rule of conduct binding on it. 
      
      47      Although Chapter 3 of the Appraisal Guide suggests that ‘timely and constructive feedback be given on a regular basis’, by
         reference to ‘specific areas of behaviour’, ‘as quickly as possible after the work has been done’, and although it requests
         the reporting officers ‘to collect examples of work ..., to keep copies of them or write notes’, it also states that the feedback
         is given through ‘formal and informal reviews and one-to-one discussion’. It does not therefore require in any way that a
         written warning should be systematically drawn up for each act for which an official may be criticised.
      
      48      Finally, it must be held that, because of errors in law committed in the interpretation of the fundamental principal of observance
         of the rights of the defence and of Article 26 of the Staff Regulations, the Court of First Instance, in paragraphs 95 and
         96 of the judgment under appeal, went on incorrectly to infer that the CDR’s content was inconsistent before accepting the
         third plea raised before it (see paragraph 20 of this judgment). 
      
      49      It follows that the judgment under appeal must be set aside in part, in so far as it annulled the contested decision on the
         ground of breach of the rights of the defence guaranteed by Article 26 of the Staff Regulations and, consequently, on the
         ground of inconsistency between some descriptive comments and the corresponding numerical mark, as regards the criticism of
         failure to comply with working hours. 
      
       The consequences of quashing the judgment under appeal
      50      Pursuant to the first paragraph of Article 61 of the Statute of the Court of Justice, if the Court quashes the decision of
         the Court of First Instance it may itself give final judgment in the matter, where the state of the proceedings so permits.
      
      51      That provision must be applied in the present case, since the case is indeed under deliberation. 
      
       The plea alleging a breach of the rights of the defence
      52      On the grounds set out in paragraphs 37 to 44 of this judgment, neither the fundamental principle of observance of the rights
         of the defence nor the first and second paragraphs of Article 26 of the Staff Regulations make the fact that a matter may
         be held against an official in his appraisal report subject to the drawing-up, prior to the procedure leading to the adoption
         of that report, of a written warning and the communication of that warning to the individual concerned. 
      
      53      The applicant at first instance therefore has no basis on which to complain that the Commission took into account, in the
         contested CDR, the criticism that he did not comply with working hours without having addressed warnings to him prior to the
         appraisal procedure.  
      
      54      The plea alleging a breach of the rights of the defence must therefore be rejected. 
      
       The plea alleging inconsistency between certain descriptive comments and the corresponding numerical mark, as regards the
            criticism of a failure to comply with working hours 
      55      Since the finding of a lack of punctuality was not held to be unlawful, the criticism based on that finding must be considered
         to have been properly included in the text of the CDR at issue. 
      
      56      In those circumstances, no doubt is cast on the consistency between the mark ‘satisfactory’ and the comments included under
         the heading ‘Conduct in the service’.
      
      57      The plea alleging inconsistency between certain descriptive comments and the corresponding numerical mark must therefore also
         be rejected as regards the criticism of a failure to comply with working hours.
      
      58      It follows that the action must be dismissed.
      
       Costs
      59      The first paragraph of Article 122 of the Rules of Procedure provides that, where the appeal is well founded and the Court
         itself gives final judgment in the case, the Court is required to make a decision as to costs. Under the first subparagraph
         of Article 69(2) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 118 thereof, the unsuccessful
         party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, in accordance
         with Article 70 of the Rules of Procedure, which is also applicable, under the second paragraph of Article 122 thereof, to
         appeals brought by the institutions in proceedings between the Communities and their servants, the institutions are to bear
         their own costs.
      
      60      In the present case, Mr De Bry has been unsuccessful and the Commission has applied for costs. In accordance with the abovementioned
         provisions of the Rules of Procedure, each party must be ordered to bear its own costs in connection with the present proceedings
         and those incurred in the proceedings at first instance. 
      
      On those grounds, the Court (Second Chamber) hereby:
      1.      Annuls in part the judgment of the Court of First Instance in Case T‑157/04 De Bry v Commission, in so far as it set aside the Commission decision of 26 May 2003 making definitive the career development report of Mr De
            Bry in respect of the period from 1 July 2001 to 31 December 2002 on the ground of a breach of the rights of the defence guaranteed
            by Article 26 of the Staff Regulations of Officials of the European Communities, on the ground of inconsistency between some
            descriptive comments and the corresponding numerical mark, as regards the criticism of failure to comply with working hours;
      2.      Dismisses the action;
      3.      Orders each party to bear its own costs in connection with the present proceedings and those incurred in the proceedings at
            first instance.
      [Signatures]
      * Language of the case: French.