JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

8 December 2014

Case F‑4/13

Michael Cwik

v

European Commission

(Civil service — Officials — Appraisal — Staff report — Appraisal period 1995/1997 — Enforcement of a judgment of the General Court — Application for annulment of the staff report — No referral to the Joint Committee on Staff Reports — Delay in the drawing up of the staff report — Action for damages)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Cwik seeks, first, annulment of the decision of the European Commission of 12 March 2012 definitively establishing the staff report for the period from 1 July 1995 to 30 June 1997 in compliance with the judgment in Cwik v Commission (T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, ‘the judgment in Cwik’) and, in so far as is necessary, of the decision of 4 October 2012 rejecting his complaint against the decision of 12 March 2012, and, secondly, an order that the Commission pay compensation for the material and non-material harm which he considers he has suffered.

Held:      The European Commission’s decision of 12 March 2012 definitively establishing Mr Cwik’s new staff report in respect of the appraisal period 1995/1997 is annulled. The European Commission is ordered to pay Mr Cwik the sum of EUR 15 000 by way of compensation for the non-material harm suffered. The remainder of the action is dismissed. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Mr Cwik.

Summary

1.      Actions brought by officials — Interest in bringing proceedings — Action for annulment of a staff report — Action brought after official’s retirement — Admissibility subject to existence of a special circumstance — Action seeking to challenge the delay in implementing a judgment of the Union judicature annulling the contested staff report — Interest in bringing proceedings retained

(Charter of Fundamental Rights of the European Union, Art. 47; Staff Regulations, Arts 43, 90 and 91)

2.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Annulment of a staff report — No referral to the Joint Committee on Staff Reports when drawing up the new report because of alleged problems in constituting that Committee — Infringement of essential procedural requirements — Annulment

(Art. 266 TFEU; Staff Regulations, Art. 43)

3.      Officials — Reports procedure — Joint Committee on Staff Reports — Composition — Need for members to have experience of internal appeals — None

(Staff Regulations, Art. 43)

4.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Reasonable time — Drawing up of a new staff report — Criteria for assessment — Failure to comply with time-limits laid down by internal provisions — Infringement of the rights of the defence — Annulment of the report

(Art. 266 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1); Staff Regulations, Art. 43; regulations governing the European Ombudsman, Art. 2(6))

1.      As regards an official’s or former official’s interest in seeking annulment of a staff report, such a report in principle affects the interest of the person appraised only until the termination of his service, and after that termination, he no longer has any legal interest in continuing an action brought against a staff report, unless he establishes the existence of a special circumstance proving a current, personal interest in obtaining the annulment of the report in question.

Where an action by a former official seeks to challenge the allegedly incorrect implementation of a judgment delivered after his retirement, in which the Union judicature annulled a staff report which he contested while he was still working, any refusal to recognise that he has an interest in bringing proceedings for annulment of the new report would amount to an infringement of his right to the proper enforcement of the annulling judgment and, consequently, his right to effective judicial protection. Furthermore, in so far as the applicant seeks compensation for the non-material harm suffered as a result of the delay of six years and three months in obtaining a new report in compliance with that judgment, it must be held that he faced a considerable delay capable of having caused him harm. That being so, there is a special circumstance proving a current, personal interest in obtaining the annulment of the new report.

(see paras 59, 62-64)

See:

Order in N v Commission, T‑97/94, EU:T:1998:270, para. 26, and judgment in Dionyssopoulou v Council, T‑105/03, EU:T:2005:189, para. 20

2.      In the appraisal system established by the Commission, given the importance of the right of every official appraised to have his report examined by a joint committee constituted for that purpose, a staff report on a former official drawn up following an annulling judgment of the Union judicature is vitiated by a breach of essential procedural requirements prejudicing the rights of the official concerned and affecting the validity of that report where the Joint Committee on Staff Reports does not even receive the official’s file in order to deliver an opinion on the appraisal procedure and the content of the new report because the Commission fails to convene its members.

That finding is not called into question by the fact that members of the Joint Committee on Staff Reports who sat on the Committee during the appraisal procedure relating to the period covered by the report are now deceased or have retired, that there is no provision for the constitution of an ad hoc Joint Committee in the applicable general implementing provisions, or that it is not possible to have recourse to the Joint Evaluation Committee which succeeded the Joint Committee on Staff Reports. In order to comply with its obligation under Article 266 TFEU, the institution concerned must adopt specific measures capable of eliminating the illegality committed vis-à-vis the person concerned, and it cannot plead practical difficulties that might be involved in putting the applicant back in the legal situation he was in before the act which has been annulled was adopted in order to avoid that obligation.

In that regard, it is only as a subsidiary matter, where the implementation of a judgment annulling a measure proves particularly difficult, that the duty to have regard for the welfare of staff requires the Commission to alert the applicant as soon as possible and to initiate a dialogue with him in order to agree on fair compensation for the harm he has suffered. That duty applies all the more with regard to the proper drawing up of a staff report on a former official for an appraisal procedure conducted almost twenty years earlier, since that report cannot be taken into account for the purpose of the applicant’s possible promotion or for reconstituting his career history, given that the promotion procedures following that appraisal procedure, during which the applicant might have aspired to promotion, were concluded long before.

(see paras 74, 77, 79, 80, 84, 123)

See:

Judgment in Gordon v Commission, C‑198/07 P, EU:C:2008:761, para. 72

Judgments in Meskens v Parliament, T‑84/91, EU:T:1992:103, para. 78, and C v Commission, T‑166/04, EU:T:2007:24, para. 52

Judgment in Andres and Others v ECB, F‑15/05, EU:F:2008:81, para. 132 and the case-law cited therein

3.      For the Joint Committee on Staff Reports to be able to deliver its opinion on an appraisal procedure in full knowledge of the facts, there is no need for its members to have gained experience from a large number of internal appeals, particularly in order to be able to assess whether the procedure was fair and objective. To assess the fairness and objectivity of an appraisal procedure, the Joint Committee must examine the procedure followed to draw up the report at issue and compare it with the procedures followed to draw up other staff reports, without there being any need for the latter reports to have been challenged before the Joint Committee. Furthermore, requiring that the Joint Committee deliver its opinion only if a number of disputes have been referred to it amounts to restricting the right of every official appraised to seek the Joint Committee’s intervention.

(see para. 87)

4.      An institution which is the author of an act that has been annulled by the Union judicature is required to take the measures necessary to comply with the judgment annulling that act within a reasonable period. Consequently, an institution infringes Article 266 TFEU and commits a breach giving rise to liability on the part of the European Union where, in the absence of particular difficulties in the interpretation of the judgment annulling an act, or of practical difficulties, it fails to adopt specific measures to comply with that judgment within a reasonable period.

In the case of a judgment annulling a staff report on a former official of the Commission, the general implementing provisions (GIPs) adopted by the Commission for Article 43 of the Staff Regulations lay down precise, relatively short time-limits for each stage of the procedure. In that connection, while it is true that the administration must, in principle, be held answerable for any failure to comply with those time-limits, it cannot, however, be held answerable for failures to comply with the time-limits which are caused by special circumstances or by the applicant’s dilatory conduct. As regards alleged delays caused by the submission of complaints to the Ombudsman, the Commission is not required to await the outcome of those complaints. Under Article 2(6) of Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman’s duties, complaints submitted to the Ombudsman do not affect time limits for appeals in administrative proceedings. They should therefore also not affect the progress of an appraisal procedure.

Infringement of the reasonable time principle does not, as a general rule, justify the annulment of a decision taken as the culmination of an administrative procedure and it is only where the elapsing of an excessive period is likely to affect the content itself of the decision adopted as the culmination of the administrative procedure that failure to observe the reasonable time principle affects the validity of that administrative procedure. This may be the case where the excessive lapse of time affects the capacity of the persons concerned to defend themselves effectively. Failure to comply with the time-limits laid down by the GIPs where the person concerned requests referral to the Joint Committee on Staff Reports in connection with the drawing up of a staff report in compliance with an annulling judgment affects his capacity to assert his rights under the Staff Regulations and his right to have the new report examined in accordance with the rules which the institution has set for itself.

(see paras 94, 98, 107, 111, 112)

See:

Judgment in Huygens v Commission, T‑281/01, EU:T:2004:207, para. 67

Judgments in C and F v Commission, F‑44/06 and F‑94/06, EU:F:2007:66, paras 60 and 63 to 67, and AE v Commission, F‑79/09, EU:F:2010:99, para. 100