JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)

26 March 2015

Case F‑41/14

CW

v

European Parliament

(Civil service — Officials — Staff report — Manifest errors of assessment — Misuse of powers — Psychological harassment — Decision to award one merit point)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which CW brought the present action seeking, in essence, the annulment of her staff report for 2012 as finalised by the decision of the appointing authority of the European Parliament of 24 May 2013 (‘the 2012 staff report’) and the annulment of the decision of the Director-General of the Parliament’s Directorate-General (DG) for Interpretation and Conferences of 24 June 2013 awarding her one merit point for the year 2012.

Held:      The action is dismissed. CW is to bear her own costs and is ordered to pay the costs incurred by the European Parliament.

Summary

1.      Officials — Sick leave — Unauthorised stay outside the place of employment — Consequences — Inclusion by the administration of a remark in the staff report of the official concerned — Lawfulness

(Staff Regulations, Arts 43 and 60, second para.)

2.      Officials — Rights and obligations — Official’s absences — Obtaining additional days of annual leave through a false declaration of incapacity for work — Unlawful

(Staff Regulations, Arts 43 and 60)

3.      Officials — Rights and obligations — Obligation to carry out orders of superiors — Scope — Limits — Refusal by an official who has frequently been insubordinate to carry out an order to apologise to his Head of Unit — Not permissible

(Staff Regulations, Art. 21a)

4.      Officials — Reports procedure — Appraisal report — Drawing up — Fact of psychological harassment — Illegality of the appraisal report — Need for a link between the harassment and the negative assessments contained in the report

(Staff Regulations, Arts 12a, 24, 43, 90 and 91)

5.      Officials — Psychological harassment — Definition — Staff report containing negative comments, but not offensive to the official — Not included

(Staff Regulations, Arts 12a(3) and 43)

1.      The wording of the second paragraph of Article 60 of the Staff Regulations is clear, explicit and does not provide for any derogation connected with the nature of an illness — such as a psychological or psychiatric complaint — from the obligation to obtain prior permission when an official wishes to spend sick leave in a place other than his place of employment.

Therefore, irrespective of the fact that a stay outside the place of employment was brief and was in response to a medical recommendation, the appointing authority is entitled to find that an official who did not obtain prior permission has not complied with the provision of the Staff Regulations relating to stays outside the place of employment during a period of sick leave and that the absence was, accordingly, unauthorised.

Thus, although a staff report is supposed to be an assessment of the official’s performance throughout the year, there is nothing to prevent the appointing authority from reporting a one-off incident, particularly where that incident represents an infringement of a clear and specific rule directly derived from the Staff Regulations and where the official concerned did not think he was required to submit a request for prior permission. In those circumstances, the inclusion of a remark in a staff report is not only not contrary to any of the provisions of the Staff Regulations, such as Article 43, but may even have the legitimate objective of warning the person concerned and helping to avoid a repeat of the infringement in question. In that regard, an observation setting out the objectives to be achieved by the official in the area of compliance with the rules is not vitiated by a manifest error of assessment, since the improvement of the conduct in the service of the official under appraisal is precisely the objective which the staff report aims to meet.

Moreover, the difficult professional situation allegedly underlying the sick leave cannot absolve the official from the obligation, which applies to all staff members, to comply with the second paragraph of Article 60 of the Staff Regulations.

(see paras 53-56, 80)

See:

Judgment in Österholm v Commission, T‑190/02, EU:T:2004:191, para. 39

Judgment in Morgan v OHIM, F‑26/13, EU:F:2014:180, para. 57 and the case-law cited therein, on appeal before the General Court of the European Union, Case T‑683/14 P

2.      It is not acceptable for a staff member to feign illness and thereby falsely claim an additional day of annual leave. Furthermore, it is perfectly legitimate for the administration to ensure, including through the use of comments in a staff report in connection with an irregularity of that kind, that staff members use their annual leave under the proper conditions.

(see para. 64)

See:

Judgment in CQ v Parliament, F‑12/13, EU:F:2014:214, para. 118

3.      It can be seen from the scheme of Article 21a of the Staff Regulations that an official who receives orders which he considers to be irregular or likely to give rise to serious difficulties must first of all inform his immediate superior, then, if necessary, where the immediate superior confirms the orders, the hierarchical authority above his immediate superior. The official is thus obliged, under that provision, to carry out the orders repeated or confirmed by his superiors unless those orders are manifestly illegal or constitute a breach of the relevant safety standards.

In that regard, against the background of an official’s frequent insubordinate conduct, an instruction by that hierarchical authority requiring him to apologise to his Head of Unit, even if the technique employed does not necessarily correspond to the best practices in the field of managing interpersonal relations in the workplace, represents part of a legitimate step taken by the administration to ensure that all staff members comply with the rules laid down by the Staff Regulations — including those, like Article 21a of those regulations, designed to ensure the correct administrative procedure is followed by each department — in an atmosphere of mutual trust and, accordingly, remains within the bounds of the administration’s discretion with regard to that step.

(see paras 70, 72)

4.      Just because it has been proved that a staff member has suffered psychological harassment, that does not mean that any decision adversely affecting the staff member and occurring in that context of harassment is automatically rendered unlawful. Indeed, by reason of its very nature, the fact that there is psychological harassment cannot be relied on, in principle, except to support a claim seeking the annulment of the appointing authority’s decision to refuse to grant a request for assistance made pursuant to Article 24 of the Staff Regulations. Accordingly, it is only on a purely exceptional basis that a plea in law based on a supposed case of harassment can be relied on in the context of a review of the legality of an act adversely affecting a person, such as a staff report, and only if it appears that there is a link between the alleged harassment and the negative assessments contained in such a report.

(see para. 89)

See:

Judgments in Menghi v ENISA, F‑2/09, EU:F:2010:12, para. 69, and CF v EASA, F‑40/12, EU:F:2013:85, para. 79

5.      Where specific remarks and assessments contained in an official’s staff report do not cross the line into offensive or hurtful criticism of the official personally, they cannot, as such, be regarded as evidence that the staff report was drawn up for the purpose of psychological harassment.

(see para. 90)

See:

Judgment in Magone v Commission, T‑73/05, EU:T:2006:127, para. 80

Judgments in N v Parliament, F‑26/09, EU:F:2010:17, para. 86, and CW v Parliament, F‑48/13, EU:F:2014:186, para. 129