JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

29 September 2011


Case F‑74/10


Eugène Émile Kimman

v

European Commission

(Civil service – Officials – Article 43 of the Staff Regulations – Article 45 of the Staff Regulations – 2009 appraisal procedure – Classification in a level of performance – Decision awarding promotion points – Appraisal report – Opinion of the ad hoc Group – Breach of the obligation to state reasons – Plea raised of the Tribunal’s own motion – Burden of proof)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Kimman seeks, principally, annulment of his appraisal report for the period from 1 January 2008 to 31 December 2008.

Held:      The action is dismissed. The Commission is ordered to bear its own costs and to pay one quarter of the applicant’s costs. The applicant is ordered to bear three quarters of his own costs.

Summary

1.      Officials – Reports procedure – Appraisal report – Drawing up – Officials carrying out staff representation duties – System introduced by the Commission

(Staff Regulations, Art. 43)

2.      Officials – Actions – Pleas in law – Inadequate statement of reasons – Finding made by the Tribunal of its own motion – Limits

3.      Officials – Actions – Prior administrative complaint – Correspondence between the complaint and the application – Same subject-matter and legal basis – Submissions and arguments not made in the complaint but closely related to it – Admissibility

(Staff Regulations, Arts 90 and 91)

4.      Officials – Reports procedure – Appraisal report – Decline compared with previous report – Obligation to state reasons

(Staff Regulations, Art. 43)

5.      Officials – Reports procedure – Appraisal report – Drawing up – Officials carrying out staff representation duties – System introduced by the Commission

(Staff Regulations, Art. 43)

6.      Officials – Reports procedure – Appraisal report – Discretion of reporting officers – Judicial review – Limits – Manifest error of assessment – Definition

(Staff Regulations, Art. 43)

7.      Officials – Reports procedure – Appraisal report – Obligation to state reasons – Scope

(Staff Regulations, Art. 43)

8.      Officials – Promotion – Award of promotion points by the administration – Obligation to state reasons – Scope

(Staff Regulations, Art. 25, second para., and Art. 45)

1.      Article 6(8) of Annex I to the general provisions for implementing Article 43 of the Staff Regulations, adopted by the Commission, requires the reporting officer to take account, when drawing up an appraisal report on an official carrying out staff representation activities, of the opinion of the ad hoc Group concerning that official’s efficiency, ability and conduct in the service when carrying out those activities. Merely citing the opinion of the ad hoc Group is not sufficient to satisfy the obligation for reporting officers to take account of that opinion.

(see para. 37)

See:

25 April 2007, F‑71/06 Lebedef-Caponi v Commission, para. 47

2.      A plea alleging that a statement of reasons is absent or inadequate is a matter of public policy which the Union judicature must, on any view, examine of its own motion. Consequently, the court must raise the absence or inadequacy of a statement of reasons of its own motion not only where an applicant who has submitted an objection to that effect in his complaint omits to include it in his application, but irrespective of the arguments raised at the pre-litigation stage. The purpose of the court’s raising a plea involving a matter of public policy of its own motion is not to remedy an inadequacy in the application, but to ensure compliance with a rule which, because of its importance, is not subject to the discretion of the parties at any stage of the proceedings. It follows that an institution may not claim that such a plea involving a matter of public policy is inadmissible on the sole ground that the applicant did not raise it in his complaint.

That finding is not called into question by the argument that the court should not be allowed to raise of its own motion a breach of the obligation to provide a statement of reasons where the applicant has denied the administration the possibility of remedying the absence or inadequacy of its statement of reasons for the contested decision at the pre-litigation stage by failing to raise an objection to that effect in his complaint, since the institution is, in any case, always required to comply with the obligations incumbent upon it, including the obligation to state the reasons for its decisions.

However, the court is required to raise such a plea of its own motion only where a statement of reasons is clearly absent or inadequate, but not where there is a breach of a specific obligation to state reasons. Consequently, as long as an appraisal report contains an adequate statement of reasons in the light of the general obligation to state reasons, it is not for the Union judicature, when raising a plea of its own motion, to ascertain whether the assessments contained in that appraisal report had declined compared with those in the previous appraisal report and, if so, to ensure that the administration had satisfied its obligation to provide a statement of reasons on that particular point.

(see paras 44, 45, 49)

See:

27 October 1994, T‑508/93 Mancini v Commission, para. 36; 3 October 2006, T‑171/05 Nijs v Court of Auditors, para. 31 and the case-law cited therein

6 March 2008, F‑46/06 Skareby v Commission, para. 96

3.      The rule of correspondence between the prior administrative complaint and the action applies only where the application alters the cause of action of the complaint, and the concept of ‘cause of action’ must be given a broad interpretation. As regards claims for annulment, the ‘cause of action of the dispute’ must be understood as the applicant’s challenge to the substantive legality of the contested decision or, in the alternative, the challenge to its procedural legality.

(see para. 46)

See:

1 July 2010, F‑45/07 Mandt v Parliament, para. 119; 23 November 2010, F‑50/08 Bartha v Commission, para. 34; 15 December 2010, F‑14/09 Almeida Campos and Others v Council, para. 28; 13 January 2011, F‑77/09 Nijs v Court of Auditors, para. 129

4.      The administration is obliged to state in a sufficient and detailed manner the reasons on which any appraisal report is based in order to give the person concerned an opportunity to make observations on those reasons, compliance with those requirements being all the more important where the appraisal shows a decline compared with the previous report.

(see para. 48)

See:

12 June 2002, T‑187/01 Mellone v Commission, para. 27; 25 October 2005, T‑50/04 Micha v Commission, para. 36

10 November 2009, F‑93/08 N v Parliament, para. 86

5.      In the reporting system introduced by the Commission, the absence or inadequacy of a statement of reasons in an opinion issued by the ad hoc Group as part of the procedure for drawing up the appraisal reports provided for in Article 43 of the Staff Regulations, which, by its very nature, is merely a preparatory act, constitutes a procedural irregularity. For a procedural irregularity to result in the annulment of a decision, it must be the case that, had it not been for that irregularity, the outcome of the procedure might have been different.

The absence or inadequacy of a statement of reasons in such an opinion will affect the final content of the report only in so far as it departs from the assessments made by the reporting officer. However, where, in an appeal procedure, the opinion confirms an appraisal report, the authors of that opinion must be considered as having, by implication, adopted the assessments in the report, so that there is no reason to think that, if the opinion had contained a statement of reasons, the reporting officer would have altered the report.

(see paras 76, 77)

See:

21 March 1990, C‑142/87 Belgium v Commission, para. 48; 18 October 2001, C‑241/00 P Kish Glass v Commission, para. 36

23 April 2002, T‑372/00 Campolargo v Commission, para. 39

6.      Assessors enjoy a very wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the Union judicature of the content of appraisal reports is limited to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers. It is not for the Civil Service Tribunal to review the merits of the administration’s assessment of the professional abilities of an official, where it involves complex value-judgments which by their very nature are not amenable to objective verification.

In that respect, an error of assessment may only be said to be manifest where it may easily be detected in the light of the criteria to which the legislature intended the exercise of the administration’s decision-making powers to be subject.

Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the administration’s assessment of the facts in its decision implausible. In other words, a plea alleging a manifest error of assessment must be rejected if, despite the evidence adduced by the applicant, the administration’s assessment of the facts may still be regarded as plausible.

That is particularly so where the decision at issue is vitiated by errors of assessment which, taken together, are of only minor significance unlikely to have influenced the administration.

As regards more particularly the judicial review of assessments in appraisal reports, there is all the more reason to confine the court’s review to manifest error since the Civil Service Tribunal is not directly familiar with the situation of the officials appraised, and the appraisal procedure includes administrative safeguards involving the official appraised, his hierarchical superiors and a joint body.

(see paras 89-94)

See:

12 December 1996, T‑380/94 AIUFFASS and AKT v Commission, para. 59; 6 July 2000, T‑139/99 AICS v Parliament, para. 39; 12 February 2008, T‑289/03 BUPA and Others v Commission, para. 221; 21 May 2008, T‑495/04 Belfass v Council, para. 63

29 September 2009, F‑114/07 Wenning v Europol, para. 111 and the case-law cited therein; 23 February 2010, F‑7/09 Faria v OHIM, para. 44 and the case-law cited therein; 24 March 2011, F‑104/09 Canga Fano v Council, para. 35, on appeal before the General Court of the European Union, Case T‑281/11 P

7.      In the drawing-up of an appraisal report, subject to the obligation to provide a statement of reasons and provided that the appraisal is clearly individualised and not impersonal, the fact that the reporting officers enjoy a wide discretion implies that they are not obliged to include in the reports they draw up all the relevant factual and legal particulars on which their appraisal is based or to substantiate them with specific examples, nor are they obliged to consider and respond to all the points contested by the official concerned. The purpose of an appraisal report is to constitute written, formal evidence of the quality of the work carried out by the official, so that it is not purely descriptive of the tasks performed during the period in question, but also includes an assessment of the relational skills which the official appraised has demonstrated in carrying out his professional activities. The appraisal report is designed not to build an exhaustive picture of each official’s performance in carrying out the tasks associated with his post, but to highlight, on the basis of conclusive evidence, his ability, efficiency and conduct in the service. Consequently, in order to be lawful, it is sufficient, in principle, for the appraisal report to set out the salient points of the official’s performance in terms of efficiency, ability and conduct in the service.

(see para. 95)

See:

22 December 2008, C‑198/07 P Gordon v Commission, para. 44

12 September 2007, T‑249/04 Combescot v Commission, para. 86

10 September 2009, F‑139/07 van Arum v Parliament, paras 88 and 101; N v Parliament, para. 46

8.      In the context of a decision awarding promotion points, the administration is not obliged to inform the official concerned how it assessed each of the criteria which led it to adopt its decision, provided that the decision contains a sufficient overall statement of reasons, and since, furthermore, an administrative act is presumed to be lawful. Consequently, an applicant cannot merely claim that the administration failed to state how it took account of a criterion for the award of promotion points in order to prove that it committed an error of assessment or an error of law.

(see para. 115)

See:

10 September 2009, F‑47/07 Behmer v Parliament, para. 97