JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
26 March 2015 (*)
(Civil service — ESMA staff — Member of the temporary staff — Non-renewal of contract — Staff report — Delay in drawing up staff report — Inconsistency of general and specific assessments)
In Case F‑32/14,
ACTION under Article 270 TFEU,
DO, former member of the temporary staff of the European Securities and Markets Authority, residing in Mittainville (France), represented by S.A. Pappas, lawyer,
applicant,
v
European Securities and Markets Authority (ESMA), represented by R. Vasileva, acting as Agent, assisted by D. Waelbroeck and A. Duron, lawyers,
defendant,
THE CIVIL SERVICE TRIBUNAL
(Third Chamber)
composed of S. Van Raepenbusch (Rapporteur), President, M.I. Rofes i Pujol and E. Perillo, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written procedure and further to the hearing on 4 December 2014,
gives the following
Judgment
1 By application received at the Tribunal Registry on 1 April 2014, DO asks the Tribunal (i) to annul the decision of the European Securities and Markets Authority (ESMA) of 13 August 2013 not to renew her temporary contract, which expired on 15 February 2014, and to annul her staff reports for the years 2011 and 2012, and (ii) to order ESMA to pay compensation for the non-material damage which she claims to have suffered.
Background to the dispute
2 The applicant was recruited by ESMA, with effect from 16 February 2011, as a member of the temporary staff within the meaning of Article 2(a) of the Conditions of Employment of Other Servants of the European Union in the version then in force (‘the CEOS’), to a post in the assistants’ function group (AST), at grade AST 8, for a renewable period of three years, and was assigned to the human resources department of the Operations Division as a senior officer.
3 In accordance with Article 5 of her contract of employment and Article 14 of the CEOS, the applicant completed a six-month probationary period, which ended on 15 August 2011. After an end of probation report was drawn up and finalised on 28 September 2011, in which Mr V., head of the Operations Division, stated in his capacity as her reporting officer, under the heading ‘Efficiency’, that she had completed difficult tasks successfully and in a timely fashion, under the heading ‘Abilities’, that she had an extensive knowledge of the field and, under the heading ‘Aspects of Conduct’, that the applicant had demonstrated her capacity to carry out her managerial duties while creating a team spirit and inspiring confidence in the entire staff, she was established in her post.
4 It was, however, stressed in the end of probation report that the applicant needed to improve her performance with regard to managing meetings by ‘focussing on key items and decisions [and avoiding] discussing details or changing subjects without closing initial ones’ and, secondly, defining her priorities, stating, in that regard, that she had ‘managed to achieve her objectives even if she [had] spent a lot of time on mediation and personal relations issues’, and that ‘she then had to deal with an enormous workload [in order] to achieve ... her main objectives for the first 6 months [in a timely fashion]’. It can also be seen from that probation report that, according to the reporting officer, the applicant needed to ‘work on reporting key items and decisions [to her immediate superior] when required’.
5 The applicant’s staff report for 2011 (‘the 2011 report’) places the applicant’s performance, overall, as assessed by Mr V. in his capacity as reporting officer, at level I (on a scale of 0 to IV), corresponding to the level of a member of staff who, overall, has provided service that is ‘below expectations’, ‘sometimes meets the performance standards’, ‘seldom exceeds’ the desired results or often ‘falls short’ of achieving those results, or whose ‘[p]erformance has declined significantly’ or who has not ‘sustained adequate improvement ... since the last performance review’. In his general assessment the reporting officer stated that the applicant needed to ‘improve her prioritisation, planning and organisation’ and ‘managing staff expectations, especially in [ESMA’s] very heavily regulated HR environment’. It is also stated in that report that the applicant needs to ‘ensure [that she complies with] the “no exception” rule [when recruiting] … under the pressure of managers that focus only on their operations [and that those areas for] improvement need to be addressed in the coming year to ensure [the] smooth running of the HR team’. More specifically, under the heading ‘Organising, planning and delivering high quality work’, the 2011 report emphasises, in particular, the need for the applicant to improve her ‘prioritisation of strategic and operational tasks’ and to ensure ‘the proper planning and effectiveness of the recruitment procedures’. Under the heading ‘Problem Solving & Decision Making’, the applicant is asked to ‘avoid proposing exceptions, which should normally be [used only] sporadically’ owing to the fact that, ‘[i]n her quest [always to] find a compromise, there have been some situations where staff members have understood that their expectations could be met whereas it was actually not possible. This has created difficult situations’.
6 The 2011 report, which the reporting officer was preparing, on 8 March 2012, to send to the executive director of ESMA (‘the Executive Director’) for adoption, and which was sent on the same date to the applicant, was not signed by the applicant until 13 January 2014. In the meantime, on 7 August 2013, the applicant, having been informed on 1 August 2013 of the recommendation by her immediate superior and reporting officer, Mr V., that her temporary contract should not be renewed, submitted a request to the Executive Director, in her capacity as appeal assessor, concerning the finalisation and revision of her 2011 report, which was rejected by the Executive Director by e-mail on 13 August 2013.
7 In the staff report for 2012 (‘the 2012 report’), finalised on 1 August 2013, the applicant’s reporting officer and immediate superior, Mr V., places the applicant’s performance at level II (on a scale of I to V), corresponding to level I (on a scale of 0 to IV) in the reporting exercise for the previous year. While observing that in the first half of the year the applicant had ‘continued to recruit with a good rythm [sic]’, the reporting officer concludes as follows:
‘… the issues raised in [the 2011 report] on [the applicant’s] organisational skills did not improve as expected …’
In that context, the [applicant’s] actions ... have not been as I could have expected. I observed amongst others … a conflict situation with her new colleague, transmission of confidential e-mails to external [persons], the lack of reporting to the management on breaches of the Staff Regulations [of the European Union] concerning recruitment, … the transmission of incorrect information to staff members [of ESMA] ... Most of these actions were repeated in several cases.
In addition to the difficulties in the management of details and organisational skills raised last year, I advised [the applicant] to work this year on managing her stress and emotional management in [human resources] issues. In tense situations and difficult cases, [the applicant] had the tendency to [allow] her judgment [to be affected]. I proposed [that she] go for training on this specific aspect this year.’
8 According to ESMA, the applicant did not undergo any training in 2012.
9 Prior to the finalisation of the 2012 report on 1 August 2013, the applicant had submitted comments to the reporting officer, on 25 April 2013, disputing the latter’s negative assessments in that report. On the same day she also requested a meeting with the Executive Director, which was then fixed for 8 May 2013. However, on 6 May 2013, the applicant cancelled that meeting, stating as follows:
‘… I thought over the weekend that it would be better to cancel this meeting for the moment. I may come back to you at a later stage…’
10 On 7 August 2013, the applicant appealed against the 2012 report to the Executive Director in her capacity as appeal assessor. That appeal was rejected by e-mail from the Executive Director on 13 August 2013, by which she also rejected the applicant’s request concerning the finalisation and revision of her 2011 report.
11 On 8 August 2013, the applicant submitted her comments to the Executive Director on the recommendation of her immediate superior and reporting officer, Mr V., that her temporary contract should not be renewed upon expiry thereof.
12 On 13 August 2013, the Executive Director, acting as ESMA’s authority empowered to conclude contracts of employment (‘the AECCE’) took the decision not to renew the applicant’s contract as a member of the temporary staff (‘the contested decision’).
13 On 5 September 2013, the applicant filed a complaint, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union, in its version prior to the entry into force of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (‘the Staff Regulations’), against the contested decision. In that complaint the applicant also contested the 2011 and 2012 reports. The complaint was dismissed by decision of the AECCE of 13 January 2014.
Forms of order sought
14 The applicant claims that the Tribunal should:
– Annul the contested decision and the 2011 and 2012 reports;
– order ESMA to pay her the sum of EUR 10 000 by way of compensation for the non-material harm;
– order ESMA to pay the costs.
15 ESMA contends that the Tribunal should:
– dismiss the application as inadmissible in part;
– dismiss the action in its entirety;
– order the applicant to pay the costs.
Law
The claim for annulment
16 The applicant puts forward five pleas in law in support of her action, alleging:
– First, infringement of essential procedural requirements and of the rights of the defence;
– second, infringement of the ‘performance appraisal policy’ adopted by ESMA on 22 December 2011 in order to implement Article 43 of the Staff Regulations, which apply by analogy to temporary staff pursuant to Article 15(2) of the CEOS, and of the version revised and updated by decision of 8 January 2013 (‘the internal guidelines’), and of the principle of equal treatment;
– third, a manifest error of assessment and an error of fact;
– fourth, a breach of the administrative authority’s duty to take the interests of its staff into account;
– fifth, breach of the right to good administration.
The first plea in law, alleging infringement of essential procedural requirements and of the rights of the defence
17 The applicant claims that the 2011 and 2012 reports are vitiated by procedural defects. Consequently, the contested decision, which is, it is claimed, based on those staff reports, is vitiated by the same illegalities.
18 The first plea is composed of two parts.
– The first part
19 In the context of the first part, the applicant submits that the 2011 report was not finalised until 13 January 2014. After the initial draft report was sent to the applicant, she sent comments and proposed amendments to the reporting officer by note dated 6 March 2012. She points out that, according to the internal guidelines, after the member of staff concerned has forwarded his comments, the reporting officer is required to review the report before submitting the draft to the appeal assessor; the latter must then issue an opinion and forward it to the jobholder, who then has three options, namely to accept the draft, reject it or fail to react. In the present case, it is alleged, that procedure was not followed and the 2011 report did not include the required signatures, namely those of the applicant and of the appeal assessor, which made it impossible for her to assert her rights of defence. According to case-law, an irregular staff report cannot validly be taken into considered for the purposes of a decision concerning the continuation of employment of a member of staff.
20 In accordance with the maxim nemo auditur propriam turpitudinem allegans (no one can be heard to invoke his own unlawful acts), such procedural defects, for which, it is claimed, the Executive Director and the reporting officer are responsible, cannot be attributed to the applicant.
21 The applicant adds that the delay in finalising the 2011 report resulted in the infringement of Article 26 of the Staff Regulations, which provides for the obligation to include in the personal file of an official any staff report concerning him. Therefore, the decision is also illegal, it is claimed, since, on the one hand, it is based on a staff report that was not added to the applicant’s personal file until 13 January 2014, that is, five months after the contested decision was adopted and more than two years after the appraisal period in question, and, on the other, the applicant was not duly informed of the content and thus the grounds of that decision, which was essential to the defence of her rights. In particular, she could not know whether or not the 2011 report had been changed in the light of the comments she had sent to the reporting officer.
22 Finally, the unfinished state of the 2011 report had, it is claimed, a negative impact on the applicant’s assessment for the year 2012. As she was unaware, it is alleged, of the content of the 2011 report, she could not know with certainty, either before or during 2012, whether and to what extent her immediate superiors expected an improved performance and accordingly adapt her way of working in order to obtain a better assessment in the appraisal exercise for 2012.
23 ESMA considers that the first part of the first plea in law must be rejected as unfounded.
24 In that regard, it should be noted, at the outset, that the applicant was recruited in February 2011 by ESMA and assigned to the human resources department as a senior officer responsible, in particular, as is apparent from the job description, for establishing ‘the Staff Performance Evaluation Policy [and the] Career Development Review’, for ‘the launch and follow-up of the … evaluation … exercises’, and for ‘[e]stablish[ing] and updat[ing] personnel files’.
25 Furthermore, it is apparent from the case-file that, with regard to the 2011 report, there was a dialogue between the reporting officer and the applicant on 3 February 2012 in order to discuss the performance of the latter in the course of 2011; on 28 February 2012, an initial report containing the self-assessment of the applicant and the assessment of the reporting officer was sent electronically to the applicant, who proposed amendments to the reporting officer on 6 March 2012; on 8 March 2012, the reporting officer sent the applicant the draft 2011 report that he intended to forward to the Executive Director.
26 It was only several months later, on 1 June 2012, that the applicant, in the course of her duties, informed the Executive Director and the reporting officer that several staff reports, including the 2011 report, had not yet been signed. She was then invited by the reporting officer, on the same day, to take stock of all current staff reports. In October 2012, noting that there were still unsigned staff reports, the reporting officer sent an e-mail to a member of staff of the human resources department, with a copy to the applicant, requesting that measures be taken to finalise all the reports in question, including the 2011 report. It is undisputed that, with regard to the finalisation of the 2011 report, no specific steps were taken to that effect following the abovementioned e-mail, since it was not until after being informed, on 1 August 2013, of the reporting officer’s recommendation not to renew her contract that the applicant applied, by note of 7 August 2013, to the Executive Director in her capacity as appeal assessor, seeking the finalisation and revision of her 2011 report. That request was rejected by e-mail from the Executive Director of 13 August 2013, and the 2011 report was not finally signed by the latter, acting as appeal assessor, until 13 January 2014.
27 It is apparent from the foregoing that the applicant, in her capacity as a senior member of staff of the human resources department, and responsible, in particular, for monitoring staff reports in accordance with the internal procedural rules, could not have been unaware either of the precise status of her 2011 report, after the reporting officer had informed her, by e-mail of 8 March 2012, that that report had been sent for signature to the Executive Director, as appeal assessor, or of its content, as the applicant submitted a request for revision to the Executive Director on 7 August 2013, which was rejected by the latter by e-mail of 13 August 2013. It is undeniable that the delay in finalising the 2011 report is attributable, primarily, to the Executive Director whose signature, as appeal assessor, was required. However, the fact remains that, given the responsibilities of the post that she occupied at the material time, the applicant contributed significantly to the procedural failure in question by not taking the necessary steps to finalise the 2011 report within the relevant time-limits, even though she had been asked to do so by her immediate superior.
28 In those circumstances, as she could not have been unaware of the professional weaknesses alleged against her by the reporting officer in the draft 2011 report, and which had already been referred to in her probationary report, at least in part, the applicant cannot validly claim that the unfinished state of the 2011 report had a negative impact on her performance in 2012. Accordingly, nothing prevented her from adjusting her way of working in order to obtain a better assessment in the appraisal exercise for the year 2012.
29 Furthermore, since the 2011 report was not finalised at the time of the adoption of the contested decision, there can be no question of an infringement of Article 26 of the Staff Regulations, which imposes the duty of adding to an official’s personal file the staff reports concerning him once they are duly signed.
30 Finally, it is apparent from the arguments advanced by the applicant in support of the first part of the first plea that the procedural defects raised against the 2011 report, due to the delay in completing the appraisal procedure and the late addition of that report to her personal file, are merely intended to establish the irregularity of the contested decision, in so far as that decision cannot be based on alleged professional inadequacies referred to in a staff report that had not been finalised when that decision was adopted. In that regard it suffices to note that, as the applicant’s temporary contract was due to expire on 15 February 2014, ESMA had to initiate the procedure for the renewal of her contract so that a decision regarding that renewal could be adopted well before the expiry of that contract.
31 On the assumption that the first part of the first plea should be construed as seeking the annulment of the 2011 report, it suffices to note that, according to settled case-law, although delay in drawing up a staff report is capable of giving the official concerned a right to a remedy, such delay cannot affect the validity of the staff report or, in consequence, justify the annulment thereof (judgments in Bevan v Commission, 140/87, EU:C:1989:126; Ianniello v Commission, T‑205/04, EU:T:2007:346, paragraph 139, and Sequeira Wandschneider v Commission, F‑65/05, EU:F:2007:225, paragraph 37).
32 It follows from all the foregoing that the first part of the first plea must be rejected.
– The second part
33 In the second part of the first plea, the applicant argues that the 2011 and 2012 reports contain inconsistencies for which ESMA fails to give adequate reasons.
34 With regard to the 2011 report, the applicant observes that her performance, skills and conduct in the service were, essentially, individually assessed as being in line with expectations, the ‘numerical values ranging from II-III’ (on a scale from 0 to IV), whereas the general assessment for her performance was assessed as falling within level I, that is, as being below expectations. Moreover, it is claimed, it appears from the 2011 report that the most negative assessment concerns a lack of efficiency and effectiveness, due to a lack of organisational skills, whereas it is stated in that report that the applicant was able to achieve all of her objectives, with the exception of one, the non-attainment of which could not, moreover, be attributed to her. The applicant claims that she was the only human resources officer within ESMA in 2011 and that she took on an unusually heavy workload during the start-up period of ESMA.
35 With regard to the 2012 report, the applicant received, it is claimed, a more favourable assessment than in the 2011 report for the achievement of her objectives, even though her organisational skills were again assessed as being below expectations. Her performance, skills and conduct were again, essentially, individually assessed as being in line with expectations while, overall, her performance was again assessed as being below expectations (level II on a scale from I to V).
36 The 2011 and 2012 reports are, it is alleged, therefore vitiated by a flagrant inconsistency between the general assessments and the specific performance assessments which, consequently, vitiate the contested decision, the content of which could have been different in the absence of the abovementioned procedural irregularities.
37 ESMA contends that the second part of the first plea must be dismissed as unfounded.
38 In that regard, first, while it is true that the 2011 report attributes to the applicant, on a scale of 0 to IV, level IV for the heading ‘Motivation [and] Commitment, level III for the headings ‘Technical skills’ and ‘Service Culture’ and level II for the headings ‘Oral [and] Written Communication’ and ‘Organisational awareness’, the applicant obtained level I for the heading ‘Organising, planning and delivering high quality work’ and level ‘I-II’ for the headings ‘Problem Solving and Decision Making’ and ‘Teamwork’. It is therefore apparent that three out of eight headings received an insufficient assessment (level I and level I-II), including two headings relating to the efficiency and effectiveness of the work achieved (namely the headings ‘Organising, planning and delivering high quality work’ and ‘Problem Solving [and] Decision Making’) and one relating to the applicant’s conduct in the service (‘Teamwork’). It is undisputed that those skills are particularly important for the proper performance of the duties of the post held by the applicant, as Senior Officer in the human resources department. Moreover, two of the eight headings received an assessment of merely satisfactory (level II).
39 However, the applicant has not proven any inconsistency between, on the one hand, the specific assessments and, on the other, the general assessment of her performance, at level I (on a scale from 0 to IV) namely, below expectations, by which the reporting officer could legitimately focus on the essential skills required to perform duties in the field of human resources as specified in the description of the post held by the applicant. The fact that the applicant, overall, satisfactorily achieved the objectives that had been assigned to her for the year 2011 cannot call into question the content of the specific and general assessments of her professional performance.
40 The same conclusion can be drawn, moreover, from examination of the 2012 report. Of nine headings (not taking into account that concerning the achievement of objectives) the applicant obtained, on a scale this time from I to V, four insufficient assessments (level II) again concerning ‘Organising, planning and delivering high quality work’, ‘Problem Solving and Decision Making’, ‘Teamwork’, and ‘Oral [and] Written Communication’, with only two satisfactory assessments (level III) made in relation to ‘Organisational awareness’ and ‘capacity to manage change’.
41 In those circumstances, also, the applicant has not demonstrated an inconsistency between the general assessment and the specific assessments contained in the 2012 report, having regard to the tasks that were assigned to her even if, overall, the objectives assigned to the applicant for the period of assessment were, for the most part, achieved.
42 In light of the foregoing, the second part of the first plea and, therefore, that plea in its entirety, must be rejected.
The second plea in law, alleging infringement of the internal guidelines and of the principle of equal treatment
43 The applicant considers that ESMA, by departing in this case from the internal guidelines which, it is claimed, are binding, breached the principle of equal treatment. The applicant was the subject of a general quantitative assessment in both the 2011 report and the 2012 report, whereas the internal guidelines, it is alleged, provide for the use of a quantitative assessment for specific competencies only. The Executive Director also acknowledged, it is claimed, that it is not certain that other members of staff were subjected to a general assessment in the context of the assessment of their professional performance.
44 It is claimed that ESMA did not give reasons, either in the 2011 report or in the 2012 report, for this departure from the guidelines with regard to the principle of equal treatment. Consequently, those reports, and the contested decision based on those reports, should be annulled.
45 ESMA contends that the second plea in law must be rejected as unfounded.
46 In that regard, it suffices to note that the applicant, who in the present case was given, in the 2011 and 2012 reports, specific and general assessments that were both qualitative and quantitative, has not established in what way the internal guidelines prohibit the use of quantitative general assessments. Moreover, it should be noted that there is a final section in the 2011 and 2012 reports concerning the general assessment of the reporting officer, which leaves scope for both qualitative and quantitative assessment, and thus provides sufficient evidence that such an approach was adopted for all members of staff.
47 Finally, the applicant does not demonstrate in what way the use of a quantitative general assessment, in addition to a qualitative assessment, resulted in a breach of the principle of equal treatment
48 The second plea must therefore be rejected.
The third plea in law, alleging a manifest error of assessment and an error of fact
49 The applicant considers that the 2011 and 2012 reports are vitiated by manifest errors of assessment and errors of fact which, it is claimed, render unlawful the contested decision based on those reports.
50 The 2011 and 2012 reports, it is claimed, focus only on the tasks required to hold a post in function group AST, for which the applicant was actually recruited. However, the tasks that she performed in the course of the first three years of ESMA’s existence, it is claimed, went far beyond the scope of the description of her post. During the first fifteen months following the establishment of ESMA she was, it is alleged, the only member of staff responsible for human resources and she took on duties corresponding to a post in the administrators’ function group; after the restructuring of the human resources department in 2013, she continued to bear an abnormal workload, given the lack of staff, of which her immediate superiors were fully aware. However, no reference was made to those circumstances in the 2011 and 2012 reports, which indicated that the applicant’s performance was lower than expected due to a lack of efficiency, organisational skills and prioritisation. In that regard it suffices to note, according to the applicant, that it would have been impossible to handle, during the first fifteen months of ESMA’s existence, the multiple tasks that were assigned to her if she had not set priorities or had not been efficient and organised. The applicant emphasises that her workload, undertaken during that period with the help of a part-time secretary and a trainee, was, by the middle of 2012, divided between five members of staff and four trainees.
51 The applicant further argues, with regard to her alleged inability to set priorities, that under the internal guidelines reporting officers cannot substitute their assessment for that of the officials as to how objectives are to be attained, provided that those objectives are actually met. In the present case, the applicant met all her objectives in 2011 and 2012, with the exception of one, failure to attain which could not be attributed to her.
52 The applicant considers that the flagrant inconsistency, called into question above, in the 2011 and 2012 reports, between the general quantitative assessment and that concerning the specific competencies, also constitutes a manifest error of assessment.
53 ESMA considers that the third plea in law must be rejected as unfounded.
54 In that regard, it should be pointed out, first, that in accordance with Article 5(2) of the Staff Regulations in force, as mentioned in paragraph 13 of the present judgment, until 31 December 2013, the function group AST had eleven grades, corresponding to executive, technical and clerical duties. With regard to grade AST 8, Annex I, paragraph A of those Staff Regulations provided for the following types of post: ‘Senior clerk; senior documentalist; senior technician; senior IT operative’.
55 In the present case, it is apparent from the case-file that the post of senior officer occupied by the applicant, at grade AST 8, was the highest in the ESMA human resources team, the other members of the team, from grade AST 1 to AST 4, performing the duties of clerical assistant or filing clerk. According to the vacancy notice for the post for which the applicant was recruited, the jobholder was called upon to perform important executive, technical and clerical duties, since it was provided that they should be carried out under the direct supervision of the Head of Unit. It is not established that the applicant carried out tasks or performed duties that do not correspond to the particularly exhaustive description of her post.
56 Moreover, it is clear from the 2011 report and, in particular, from the heading ‘Motivation [and] Commitment’ that account was taken of the heavy workload of the applicant and of the lack of staff. It is undisputed that the reporting officer did not call into question the significant work capacity and commitment of the applicant, but emphasised her low level of performance and efficiency, due in particular to the applicant’s difficulty in setting priorities.
57 It is not disputed by ESMA that, according to the internal guidelines, when assigning tasks, objectives should be set by the hierarchy together with staff without imposing a detailed roadmap as to how they are to be attained, thus leaving it to the members of staff to decide on the means to be implemented to achieve the objectives in question. However, it is also apparent from the guidelines that members of staff must use the available resources effectively for this purpose, which implies that they should have good organisational and work planning skills.
58 In those circumstances, it was legitimate for the reporting officer to assess the general competencies of the applicant together with the more technical competencies associated with her post. The applicant is specifically criticised, in the 2011 report, for not having made effective use of the available resources, adapting the quantity and quality of her work to priorities set in advance.
59 As regards the alleged inconsistency that vitiates 2011 and 2012 reports, reference is made to the abovementioned considerations regarding the examination of the second plea in law.
60 In light of the foregoing, the third plea in law must be rejected.
The fourth plea in law, alleging breach of the administrative authority’s duty to take the interests of its staff into account
61 According to the applicant, when assessing its members of staff, the administration is required to take their individual interests into account. That duty reflects the balance between the reciprocal rights and obligations established by the Staff Regulations and the CEOS for relations between the public authority and public service employees. However, in the present case it is alleged that ESMA manifestly failed to fulfil that obligation, when drawing up the 2011 and 2012 reports and adopting the contested decision, by not duly taking into account, in the reasons given for the contested acts, the applicant’s heavy workload during the fifteen months following the establishment of ESMA, as well as the shortage of staff, that information being essential for the correct assessment of a member of staff.
62 ESMA considers that the fourth plea in law must be rejected as unfounded.
63 In that regard, it is clear that the AECCE, when assessing the applicant’s professional performance, took into account her workload during ESMA’s start-up period. Thus, in the 2011 report, under the heading ‘Motivation [and] Commitment’, it is pointed out that the applicant ‘works without counting her hours’, that she is ‘very motivated and committed’, that ‘[the] year [2011] has been extremely challenging’ and that, ‘with very limited resources’, the applicant managed ‘to face all her challenges’. It must be concluded, therefore, that the plea alleging breach of the duty to have regard for the welfare of staff has no factual basis.
64 Moreover, it is settled case-law that it is not for the EU judicature, save in the case of factual errors, manifest error of assessment or misuse of powers, to review the merits of the assessment made by the administration of the occupational abilities of an official where it involves complex value judgments which, by their very nature, are not amenable to objective verification (judgment in Cwik v Commission, T‑96/04, EU:T:2005:376, paragraph 41, and the case-law cited). In particular, it is not for the Tribunal to substitute its appraisal for that of the persons responsible for assessing the person under appraisal, as the administration has a wide discretion when assessing the work of its officials (judgment in Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 32).
65 In the light of all the foregoing, the fourth plea in law must be rejected.
The fifth plea in law, alleging breach of the right to good administration
66 The applicant considers that ESMA has, in three respects, breached the right to good administration, as enshrined in Article 41(1) of the Charter of Fundamental Rights of the European Union. In the first place, the 2011 report was not formally finalised and added to her personal file until 13 January 2014, that is, three years after the assessment period in question, and the applicant was therefore left in a state of uncertainty regarding the content of her assessment and in the dark as to the changes she could make to her ‘work ethic’ and performance to improve any professional shortcomings and benefit from an improved assessment for 2012. In fact, the 2012 report, signed on 1 August 2013, contains the same points of concern as those set out in the 2011 report, finalised five months later. ESMA thus breached the principle that reports should be finalised within a reasonable time.
67 In the second place, it is claimed, the applicant was unable, for the same reasons, to exercise her rights of defence, since she could not formally challenge an incomplete staff report, which does not constitute an act adversely affecting the applicant.
68 The applicant alleges, in the third place, that ESMA treated her in an unfair and biased manner when drawing up the 2012 report. She states, in that regard, that she was involved as a witness in a harassment case concerning the reporting officer and the Executive Director. The ‘concerned individuals’ were, it is claimed, found to be ‘guilty of mismanagement’. The applicant notes that, although the assessment of her specific competencies was better in the 2012 report than in the 2011 report, her general assessment remained the same. The reporting officer expressly stated, it is claimed, that this general assessment was partly explained by the involvement of the applicant in that harassment case and by the existence of a conflict with another colleague. That statement contrasts with the commendations repeatedly received by the applicant for her work, both from persons external to ESMA and from members of its staff. Accordingly, the administration did not, it is claimed, comply with Article 12 of the Staff Regulations, which guarantees that all witnesses in a harassment case will be protected against the prejudicial consequences of their testimony.
69 The matters raised in those various heads of challenge, it is claimed, substantially affected the contested decision, based on the 2011 and 2012 reports.
70 ESMA considers that the fifth plea in law must be rejected as unfounded.
71 In that regard, it should be noted, as is apparent from paragraphs 26 and 27 of the present judgment, that the delay in finalising the 2011 report is due, partly but significantly, to the conduct of the applicant herself, in so far as she was responsible for monitoring all staff reports. It is undisputed that the applicant, who had known since 8 March 2012 that the reporting officer had sent the draft 2011 report for signature to the appeal assessor, specifically notified the Executive Director and her immediate superior and reporting officer, in the course of her duties, that the report had not been finalised only in August 2013, when the contested decision was adopted, even though her immediate superior had asked her, by e-mails of 1 June and 2 October 2012, to take measures to ensure that all current staff reports were finalised.
72 Furthermore, there was nothing to prevent the applicant from taking into account the remarks and comments made directly by her reporting officer to improve her professional performance, even in the absence of a staff report signed by the appeal assessor.
73 It should also be observed that, on 7 August 2013, the applicant filed a request with the Executive Director seeking revision of the assessments contained in the 2011 report then being prepared, demonstrating that she was aware of its content. That course of action could have been taken much earlier, after the applicant had been informed by her reporting officer, on 8 March 2012, that the draft report in question had been sent to the Executive Director for signature.
74 As regards the involvement of the applicant as a witness in a case of psychological harassment which, it is claimed, adversely affected her assessment for 2012 contained in the 2012 report and, consequently, the contested decision, that allegation has not been proven in any respect before the Tribunal. First, it is clear from the wording of the 2012 report that the reporting officer merely reported several difficult circumstances which the applicant had faced during the reference period, namely the arrival of a new colleague with ‘a different working style’, a case of harassment, dismissal and an ‘increasing pressure’ with regard to recruitment. The general assessment of the reporting officer highlights the applicant’s difficulties in managing her stress and emotions when faced with difficult situations. The reporting officer also reported the transmission of confidential e-mails to external persons, failure to report infringements of the Staff Regulations regarding recruitment to the management of ESMA, transmission of incorrect information to members of staff and the conflict between the applicant and the new team member, which the applicant was not able to properly manage. However, no link can be identified between the testimony of the applicant in connection with the complaint of psychological harassment and the general assessment of her professional performance.
75 Secondly, it is clear that the assessment does not include any derogatory or hurtful criticism of the applicant.
76 Thirdly, it is apparent from the case-file that the reporting officer did not in any way call into question the outcome of the administrative investigation carried out at the request of ESMA’s Board of Directors in connection with the harassment complaint. Nor did that investigation lead to the ‘concerned individuals’, referred to by the applicant, being declared ‘guilty of mismanagement’.
77 Finally, the assessments made by persons external to ESMA and certain members of its staff cannot invalidate the assessments contained in the 2011 and 2012 reports, nor can they call into question the validity of the contested decision.
78 Having regard to the foregoing, it is appropriate to reject the fifth plea and, consequently, the claim for annulment in its entirety.
The claim for damages
79 The applicant considers that the requested annulment of the contested decision and of the 2011 and 2012 reports does not provide sufficient compensation for the damage suffered, in so far as the 2011 and 2012 reports and the contested decision are hurtful and offensive to her. Moreover, the delay in finalising the 2011 report placed her, she claims, in a perpetual state of anxiety and uncertainty. Finally, the annulment of the contested acts could not retroactively correct the illegalities committed. It is highly unlikely, it is claimed, that if the 2011 and 2012 reports and the contested decision were annulled, ESMA would reinstate the applicant to her post, which significantly reduces the effectiveness of those annulments.
80 The applicant assesses ex aequo et bono the amount of compensation for non-material damage allegedly suffered at EUR 10 000.
81 ESMA considers that the comments contained in the 2011 and 2012 reports were objectively justified and were not presented in a ‘highly offensive and negative’ manner. On the contrary, the applicant’s commitment to ESMA, inter alia, was expressly praised in both of the staff reports in question.
82 In that regard, therefore, given that the claim for annulment has been rejected, the claim seeking compensation for the damage caused by the alleged illegalities raised must be rejected as well.
83 Moreover, given that the applicant contributed to the delay in drawing up the 2011 report, as is apparent from paragraphs 26, 27 and 71 of the present judgment, it is not appropriate to grant the claim for compensation relating to that delay.
84 Finally, the claim for compensation for the harm suffered as a result of the allegedly hurtful and offensive nature of the terms used by the reporting officer in the 2011 and 2012 reports must also be dismissed precisely because they were not of such a nature, as is apparent from the analysis of the pleas for annulment directed against those reports, and in particular paragraph 75 above.
85 Since the claim for compensation has thus been dismissed, the action must be dismissed in its entirety.
Costs
86 Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 102(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.
87 It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings ESMA has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 102(1) of the Rules of Procedure, the applicant must bear her own costs and she must be ordered to pay the costs incurred by ESMA.
On those grounds,
THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
hereby:
1. Dismisses the action;
2. Declares that DO is to bear her own costs and orders her to pay the costs incurred by the European Securities and Markets Authority.
Van Raepenbusch | Rofes i Pujol | Perillo |
Delivered in open court in Luxembourg on 26 March 2015.
W. Hakenberg | | S. Van Raepenbusch |