JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

21 February 2008

Case F-19/06

Maria Magdalena Semeraro

v

Commission of the European Communities

(Civil service – Officials – Appraisal – Career development report – 2004 appraisal procedure – Article 43 of the Staff Regulations – Obligation to state reasons – Promotion – Attestation procedure)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Semeraro seeks, in particular, annulment of her career development report covering the period from 1 January to 31 December 2004.

Held: The applicant’s career development report covering the period from 1 January to 31 December 2004 is annulled. The Commission is ordered to pay all the costs.

Summary

1.      Officials – Reports procedure – Career development report – Decline in assessment compared with previous report

(Staff Regulations, Art. 43)

2.      Officials – Reports procedure – Career development report – Drawing up – Referral to the Joint Committee on Staff Reports

(Staff Regulations, Art. 43)

3.      Officials – Attestation procedure – Rules for its implementation in the Commission – Competence to rule on candidatures

(Staff Regulations, Annex XIII, Art. 10(3))

1.      The administration is obliged to state in a sufficient and detailed manner the reasons on which any career development report is based and to give the person concerned an opportunity to make observations on those reasons. The sufficiency of the statement of reasons must be assessed in the light not just of its wording, but also of the factual and legal context in which the contested act was adopted.

In certain cases particular attention must even be paid to the statement of reasons, particularly where the report includes appraisals which are less favourable than those in a previous report. It is important that reasons be stated for a finding by the authority of a decline in performance so as to enable the official reported on to determine whether it is well founded and, where appropriate, to enable the Tribunal to effect its review.

A decline in an official’s overall mark cannot be justified solely by the automatic adjustment of his marks following his promotion. Thus, while taking account of an official’s promotion, the assessor and the countersigning officer must nevertheless assess his performance in his new grade in order to ascertain whether, if appropriate, the level of his performance is genuinely less than that of other officials who are more senior in that grade.

(see paras 47-48, 56)

See:

T-187/01 Mellone v Commission [2002] ECR-SC I‑A‑81 and II‑389, para. 27; T-16/03 Ferrer de Moncada v Commission [2004] ECR-SC I‑A‑261 and II‑1163, paras 49 and 53; T-132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 31; T-50/04 Micha v Commission [2005] ECR-SC I‑A‑339 and II‑1499, para. 36; T-73/05 Martin Magone v Commission [2006] ECR-SC I-A-2-107 and II‑A‑2‑485, para. 48

2.      Where the career development report contains a sufficient statement of reasons, the appeal assessor cannot be required to provide further explanations of the reasons which led him not to follow the recommendations of the Joint Committee on Staff Reports unless that advisory body’s opinion mentions special circumstances likely to cast doubt on the validity or proper foundation of the original assessment and therefore calls for a specific assessment from the appeal assessor as to any appropriate conclusions to be drawn from those circumstances.

(see para. 49)

See:

Mellone v Commission, para. 33

3.      Under the terms of Article 10(3) of Annex XIII to the Staff Regulations, officials in service before 1 May 2004 in categories C or D may become members of the assistants’ function group without restriction on the basis of an attestation procedure. The attestation procedure is to be based on the seniority, experience, merit and level of training of officials, and the joint committee for the attestation procedure must examine the candidatures of officials for the attestation. It is also stated that the institutions are to adopt rules implementing the procedure before 1 May 2004.

To that end the Commission adopted the Decision of 7 April 2004 laying down the rules for implementing the attestation procedure. According to Article 3 of that Decision, the attestation procedure comprises four stages: setting the number of posts in the assistants’ function group which can be filled by attested officials and publication of a call for applications; admission of applicants; establishment of a list of admitted applicants in order of priority; application for vacant posts in the assistants’ function group.

Applicants admitted to the attestation procedure are listed in order of priority based on criteria set out in Article 6(1) of the Decision of 7 April 2004, which are: level of education and training, seniority in career stream C or D, experience, and merit evaluated on the basis of available career development reviews. Admitted officials may contest their classification before the Joint Attestation Committee, which delivers an opinion. The appointing authority decides on the action to be taken.

According to Article 6(2) of the Decision, the value of the criteria and the weighting applied to them are to be decided by the appointing authority before 31 December 2004, after consulting the Joint Attestation Committee, and may be adjusted each year by decision of the appointing authority on the recommendation of the Joint Attestation Committee.

According to paragraph 1.1 of the Commission Appointing Authority Decision of 11 May 2005 on the criteria for the 2005 attestation procedure, in order to be included on the list of eligible officials, officials admitted to the attestation procedure must have been recognised in their annual career development report relating to the previous year as having the potential to take on category B* duties. Consequently, a negative response in the entry to be taken into account in the attestation procedure means that the official cannot progress to the third stage of the attestation procedure with a view to being included on the list provided for in Article 6(1) of the Decision of 7 April 2004. It follows that the effect of paragraph 1.1 is to remove the appointing authority’s power to take the final decision in drawing up the list of officials admitted and to prevent the Joint Attestation Committee from being involved in that stage of the procedure.

Article 6(2) of the Decision of 7 April 2004, on the basis of which the Decision of 11 May 2005 was taken, does not constitute an authorisation to depart from the procedure laid down by the Decision of 7 April 2004. It follows that paragraph 1.1 of the Decision of 11 May 2005 goes beyond the limits of the authorisation provided for in Article 6(2) of the Decision of 7 April 2004. Thus, a career development report containing such an unlawful entry intended to be taken into account in the attestation procedure renders that career development report unlawful and must therefore be annulled.

(see paras 66, 67, 69, 70, 74, 76, 78-82)