JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

30 June 2015

Case F‑64/13

Z

v

Court of Justice of the European Union

(Civil service — Officials — Staff report — Staff report drawn up late — Action for annulment — Action for damages)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Z seeks, first, annulment of her staff report for the period from 1 January 2008 to 31 December 2008 and of the decision rejecting the complaint lodged against that report, and, second, an order that the Court of Justice of the European Union pay compensation for the non-material damage which she considers she has suffered.

Held:      The action is dismissed. Z is to bear her own costs and is ordered to pay the costs incurred by the Court of Justice of the European Union.

Summary

1.      Officials — Reports procedure — Existence of differences between an official and his immediate superior — No effect on the latter’s ability to assess the official’s merits

(Staff Regulations, Arts 11a and 43)

2.      Officials — Rights and obligations — Freedom of expression — Disclosure of facts giving rise to a presumption of the existence of illegal activity or a serious breach of obligations — Protection for official who communicated such facts — Scope

(Staff Regulations, Art. 22a(3))

3.      Officials — Reports procedure — Staff report — Drawing up — Dialogue between assessor and official reported on — Need for direct contact

(Staff Regulations, Art. 43)

4.      Court of Justice of the European Union — Obligation for the judges of the European Union judicature to be independent — Scope — Exercise of functions relating to the institution’s internal administration — Lawfulness

(Art. 257, fourth para., TFEU; Statute of the Court of Justice, Art. 4, first para.)

1.      Even though the possibility cannot be excluded that differences between an official and his immediate superior may cause a degree of irritation on the part of the immediate superior, that possibility does not, as such, imply that the immediate superior is no longer in a position to assess objectively the merits of the person concerned. Moreover, even the fact that a staff member has lodged a complaint of harassment against the official who is to assess his professional performance cannot of itself, without more, call into question the impartiality of the person against whom the complaint has been lodged.

(see paras 71, 77)

See:

Judgment in Combescot v Commission, T‑249/04, EU:T:2007:261, para. 71 and the case-law cited therein

Judgments in Bogusz v Frontex, F‑5/12, EU:F:2013:75, para. 76, and BY v EASA, F‑81/11, EU:F:2013:82, para. 72

2.      Article 22a(3) of the Staff Regulations provides that an official who informs his immediate superiors of facts which give rise to a presumption of the existence of possible illegal activity of which he became aware in the course of or in connection with the performance of his duties must not suffer any prejudicial effects on the part of the institution provided that he acted reasonably and honestly. However, that provision does not offer the official concerned protection against any decision capable of adversely affecting him but only against decisions connected with the accusations made by him.

(see para. 74)

See:

Judgment in Menghi v ENISA, F‑2/09, EU:F:2010:12, para. 139

3.      Direct contact between the official reported on and the assessor is such as to encourage frank and thorough dialogue, enabling them, first, to ascertain exactly the nature of, the reasons for and the extent of any differences of opinion, and, second, to achieve better mutual understanding, particularly in a situation where it is necessary to remedy a very damaged personal relationship.

(see para. 93)

See:

Judgments in Ferrer de Moncada v Commission, T‑16/03, EU:T:2004:283, para. 45, and Lo Giudice v Commission, T‑27/05, EU:T:2007:321, para. 49

4.      The first paragraph of Article 4 of the Statute of the Court of Justice is intended to ensure the independence of the judges, both during and after the exercise of their functions, with regard, in particular, to Member States or other EU institutions. However, it cannot be inferred from that provision that it is impossible to exercise functions relating to the internal administration of the institution. The exercise by the judges of such functions does not undermine their independence and makes it possible to ensure the administrative autonomy of the institution.

Finally, when they decide on an action brought before the Civil Service Tribunal, the members of that Tribunal are acting in their capacity as judges and exercise their functions in the full independence guaranteed both by the Treaties, in particular the fourth paragraph of Article 257 TFEU, and by the Statute of the Court of Justice.

(see paras 120, 122)