ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

12 December 2012

Case F‑70/11

Giorgio Lebedef

v

European Commission

(Civil service — Officials — 2008 appraisal — Half-time secondment for the purposes of union representation — Staff report covering the tasks carried out in the service to which the applicant concerned was assigned — Consultation of the ad hoc group — Designation under the Staff Regulations — Designation for union purposes — Action manifestly lacking any foundation in law)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Lebedef seeks annulment of the staff report covering the duties performed in the service to which he was assigned for the period 1 January to 31 December 2008.

Held: The action is dismissed as manifestly unfounded. The applicant is to bear his own costs and is ordered to pay those incurred by the Commission.

Summary

1.      Officials — Representation — Half-time secondment for union purposes — Designation for union purposes during the remaining half of working time — Whether permissible — Conditions

2.      Officials — Reports procedure — Staff report — Discretion of the assessors — Judicial review — Limits

(Staff Regulations, Art. 43)

3.      Officials — Reports procedure — Staff report — Drawing up — Breach of the rules governing the procedure — Impact on the validity of the staff report — Conditions

(Staff Regulations, Art. 43)

1.      An official who is seconded for half of his working time for union or staff representation purposes may in addition, in the context of the performance of his duties during the remaining half of his working time, be granted a union designation enabling him to carry out union activities. However, it is necessary that the designation by a union or professional representative organisation be clearly established.

Furthermore, such a union or Staff Regulations designation cannot have either the object or the effect of transforming, de facto, half-time secondment for union or staff representation purposes granted for 50% of working time into full-time secondment. To accept that an official or member of staff who has not been seconded for staff representation purposes should devote virtually all or even all his working time to staff representation, so that he devotes little or even no working time to the service to which he is assigned has the effect of distorting the system put in place by the various agreements concluded between the Commission and the union or professional representative organisations and, depending on the circumstances, might constitute an abuse of rights.

(see paras 41, 51)

See:

7 May 2008, F‑36/07 Lebedef v Commission; 7 July 2009, F‑39/08 Lebedef v Commission para. 50 and the case-law cited

2.      Review by the Courts of the European Union of the content of staff reports is limited to ensuring that the procedure was conducted in a regular manner, that the facts are materially correct and that there has been no manifest error of assessment or misuse of powers. It is not for the Civil Service Tribunal to review the merits of the administration’s assessment of the professional abilities of an official, where it involves complex value-judgments which by their very nature are not amenable to objective verification.

(see para. 58)

See:

29 September 2011, F‑80/10 AJ v Commission para. 32 and the case-law cited

3.      In order that a breach of the rules governing the procedure may constitute a substantial irregularity capable of vitiating the validity of the staff report at issue, it is necessary that, in the absence of such a breach, the report might have had a different content.

(see para. 63)

See:

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