JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

11 December 2012

Case F‑107/11

Ioannis Ntouvas

v

European Centre for Disease Prevention and Control (ECDC)

(Civil service — Member of the contract staff — 2010 appraisal exercise — Application for annulment of the appraisal report)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106 thereof, whereby Mr Ntouvas seeks, in essence, annulment of his 2010 appraisal report.

Held: The action is dismissed. The applicant is ordered to bear his own costs and to pay the costs incurred by the ECDC.

Summary

1.      Actions brought by officials — Interest in bringing proceedings — Action for annulment of an appraisal report — Member of the contract staff no longer working at the institution concerned — No communication of the report to third parties — Maintenance of interest in bringing an action

(Staff Regulations, Art. 43; Conditions of Employment of Other Servants, Art. 87)

2.      Actions brought by officials — Act adversely affecting an official — Concept — Preparatory act — Initial draft appraisal report drawn up by the reporting officer and the countersigning officer and opinion of the Joint Appraisal Committee — Not included

(Staff Regulations, Arts 90 and 91)

3.      Officials — Marking — Appraisal report — Judicial review — Limits

(Staff Regulations, Art. 43)

1.      Irrespective of its future usefulness, the appraisal report of a member of the contract staff constitutes written, formal evidence of the quality of the work carried out by the person concerned. Such an appraisal does not merely describe the tasks performed during the relevant period, but includes, inter alia, an assessment of the personal qualities shown by the individual assessed in the exercise of his professional activities. Therefore, every staff member has a right to have his work recognised by means of an appraisal carried out in a just and equitable manner. Consequently, in accordance with the right to effective judicial protection, a staff member must in any event be acknowledged to have the right to challenge his appraisal report on account of its content or because it has not been drawn up in accordance with the rules laid down in the Staff Regulations.

Thus, the fact that after having brought an action disputing an appraisal report a staff member leaves the institution concerned and that his appraisal report will not be disclosed to third parties is not such as to deprive him of his interest in bringing proceedings to challenge that report.

(see paras 35-36)

See:

10 November 2009, F‑93/08 N v Parliament, paras 46 and 47

2.      In the case of acts or decisions whose adoption takes place in stages, in particular at the end of an internal procedure, only measures definitively laying down the position of the institution at the end of that procedure, and not intermediate measures intended to prepare the final decision, are acts against which an action for annulment will lie. Thus, in actions brought by officials or staff members, preparatory acts for a decision are not acts adversely affecting an official or staff member for the purpose of Article 90(2) of the Staff Regulations, since they are not measures, first, which produce binding legal effects of such a kind as to affect the applicant’s interests by bringing about a distinct change in his legal position and, secondly, which definitively establish the position of the institution.

In that regard, where the preparation of the appraisal report of a member of the staff of a European agency is compiled in several stages at the end of an internal procedure and where that report becomes definitive, in the event that the initial appraisal report drawn up by the reporting officer and the countersigning officer is challenged, only by decision of the director of the agency concerned after the Joint Appraisal Committee has submitted its opinion, only the definitive appraisal report drawn up by the director is an act adversely affecting the staff member concerned that may be challenged. Conversely, the initial appraisal report drawn up by the reporting officer and the countersigning officer, and the opinion of the Joint Appraisal Committee, are merely preparatory acts that do not adversely affect the staff member and are not amenable to an action for annulment, so that the forms of order seeking annulment of those acts are inadmissible.

(see paras 42-44)

See:

28 September 1993, T‑57/92 and T‑75/92 Yorck von Wartenburg v Parliament, para. 36 and the case-law cited; 6 February 2007, T‑264/04 and T‑71/05 Wunenburger v Commission, para. 42 and the case-law cited

10 November 2009, F‑71/08 N v Parliament, paras 27 to 30

3.      It is not for the Civil Service Tribunal to substitute its appraisal for that of the persons responsible for assessing the work of the person under appraisal, as the EU institutions have a wide discretion when evaluating the work of their officials and staff. Thus, save where there has been an error of fact, a manifest error of assessment or a misuse of powers, it is not for the Tribunal to review the merits of the administration’s appraisal of the professional abilities of an official or a staff member where it involves complex value-judgments which by their very nature are not amenable to objective verification.

(see para. 78)

See:

25 October 2005, T‑96/04 Cwik v Commission, para. 41 and the case-law cited

13 September 2011, F‑4/10 Nastvogel v Council, para. 32