JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

7 May 2008

Case F-36/07

Giorgio Lebedef

v

Commission of the European Communities

(Civil service – Officials – Appraisal – 2005 appraisal procedure – Career development report – Staff representatives – Trade union representation and representation under the Staff Regulations – Partial secondment for trade union representation purposes – Consultation with the ad hoc staff reports group)

Application: brought under Articles 236 EC and 152 EA, in which Mr Lebedef seeks annulment of his career development report for the appraisal period from 1 January to 31 December 2005 and, more particularly, of the part of the report drawn up by Eurostat for that period.

Held: The part of the applicant’s career development report drawn up by Eurostat for the appraisal period from 1 January to 31 December 2005 is annulled. The Commission is ordered to pay the costs.

Summary

1.      Officials – Actions – Subject-matter – Partial annulment

(Staff Regulations, Arts 43, 90 and 91)

2.      Officials – Reports procedure – Career development report – Drawing up

(Staff Regulations, Art. 43; Annex II, Art. 1, sixth para.)

1.      Although Article 43 of the Staff Regulations refers to only one periodical report in organising the reporting procedure, it cannot be interpreted as meaning that it prevents the institutions, particularly in order to take account of the case of staff representatives, from prescribing a separate report for each area of activity performed. Separate reports enable adequate account to be taken of the independent role of staff representatives, particularly where they are working as representatives in the context of a secondment, where the official concerned, for the part of his working time for which he is seconded, is exempt from working in his employing department so that he can devote himself to his representation duties. In such a situation, each of the periodical reports forms a separate element from the other and thus constitutes a measure that may be contested. The Community judicature is thus not at risk of ruling ultra petita by considering the lawfulness of only one of those reports.

(see paras 30-31)

2.      Under the reporting system introduced by the general implementing provisions adopted by the Commission for Article 43 of the Staff Regulations, which, first, lay down a special procedure for the assessment of officials on secondment as staff representatives, who, for the part of their working time during which they are on secondment, are exempt from carrying out their work in a department of the institution so that they can devote themselves to their representation duties, and second, require that an ad hoc group be consulted for the assessment of staff representatives belonging to categories other than that of seconded officials, that group must also be consulted, in the case of a official on partial secondment, where an assessment is to be made of the part of his working time that he spends in his employing department, during which he also carries out representation activities.

Since the Commission itself accepts that officials on partial secondment may also carry out representation activities in the remaining working time when they are deemed to be working for their employing department, albeit only by performing ‘ad hoc’ activities of short duration, consultation of the ad hoc group is the only way to ensure that staff representatives are not harmed, in their assessment, as a result of their representation activities. Otherwise, their assessment, for the purpose of drawing up their career development reports, would contain gaps and could harm them by infringing the rule in the sixth paragraph of Article 1 of Annex II to the Staff Regulations, the whole point of which is to safeguard the rights of members of the Staff Committee under the Staff Regulations as well as those of officials appointed by the Staff Committee to organs set up under the Staff Regulations or by the institution.

Neither the fact that the chairman of the ad hoc group acted as the countersigning officer for the career development report drawn up for the part of the working time spent on secondment, nor the direct contact which the reporting officers in his employing department had with the official reported on, nor the fact that those who drew up the career development report for the part of his working time for which the official was assigned to a particular department took into account the report relating to the part of his working time spent on secondment remedies the absence of that consultation, since those elements, on any view, provide the official reported on with fewer guarantees than consultation of the ad hoc group.

That finding must apply however much of the working time due to his employing department the partially seconded official spends on his representation activities, even if they occupy all of that time. In that respect, the possibility that the official may have acted wrongfully in carrying out, during the working time due to his employing department, representation activities exceeding what might be regarded as ‘ad hoc’ activities of short duration, does not thereby render unlawful his request for the ad hoc group to be consulted for the drawing up of his career development report for the part of his working time due to his employing department. If the Commission considers the official’s conduct unlawful, it must initiate the appropriate procedures, such as the procedure for improper absence, instead of penalising him by depriving him of a guarantee which every staff representative should usually enjoy.

On the basis of the content and purpose of the rule infringed, therefore, the lack of consultation of the ad hoc group infringes an essential procedural requirement resulting in annulment of the vitiated report, without any need to prove the existence of damage.

(see paras 46-50, 52, 56)

See:

T-113/05 Angelidis v Parliament [2007] ECR-SC I-A-2-0000 and II-A-2-0000, paras 62 and 76