JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 September 2009

Case F-139/07

Rinse van Arum

v

European Parliament

(Civil service – Officials – Appraisal – Staff report – Scope of the complaint referred to in Article 90 of the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr van Arum seeks, first, primarily, the removal of certain comments from his staff report for the 2005 reporting period and the addition of other elements, as well as, alternatively, the annulment of that report, then, as a further alternative, an order that all evidence relating to the content of that staff report be disclosed to him and that the Tribunal rule on the contested facts and marking raised by him, and secondly, an order that the Parliament pay him one euro in compensation.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1.      Officials – Reports procedure – Staff report – Obligation to state reasons – Obligation for the first reporting officer to state the reasons for his observations or assessments – None

(Staff Regulations, Art. 43)

2.      Officials – Reports procedure – Staff report – Adoption of a decision allocating merit points without a final version of the staff report

(Staff Regulations, Art. 43)

3.      Officials – Reports procedure – Staff report – Judicial review

(Staff Regulations, Art. 43)

4.      Officials – Reports procedure – Staff report – Obligation to state reasons – Scope

(Staff Regulations, Art. 43)

5.      Officials – Personal file – Obligation to notify the official of the decision to add his staff report to his personal file

(Staff Regulations, Art. 26)

6.      Procedure – Costs – Application for an appropriate order

(Rules of Procedure of the Civil Service Tribunal, Art. 87(1))

1.      It is the staff report and, consequently, the final assessments given in that report which are likely adversely to affect an official and for which a statement of reasons must therefore be given, and not the comments or assessments formulated more particularly by the first reporting officer. Thus any absence of a statement of reasons by the Staff Reports Committee cannot be such as to render that staff report unlawful.

(see para. 44)

See:

T-110/04 Sequeira Wandschneider v Commission [2007] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 108

2.      Where the appointing authority adopts a decision allocating merit points when it does not yet have the final version of an official’s staff report solely because that official has lodged an internal appeal, that decision is, by implication, taken subject to the final outcome of the reporting procedure once all remedies have been exhausted. It is therefore possible for the administration to alter the number of merit points allocated to an official should it become apparent that, following his internal appeal or, as the case may be, his complaint, his staff report must be amended. The fact that a decision allocating merit points was adopted before the staff report became final is not sufficient to presume that that decision influenced the outcome of the internal appeal and, consequently, the staff report, since the decision allocating the merit points, which was necessarily adopted subject to the final outcome of the reporting procedure, could have been changed if the final staff report had been different from the provisional version.

(see paras 47-48)

See:

F‑47/07 Behmer v Parliament [2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 78 and 79

3.      The staff report expresses the opinion freely drawn up of the reporting officers. Those assessments are therefore, by their nature, not amenable to objective verification by the Community judicature, which should not substitute its assessment for that of the persons responsible for appraising the work of the person reported on. The Community institutions have a wide discretion to assess the work of their officials. The value judgments made of officials in the staff reports are not subject to judicial review, except as regards any formal irregularities, manifest errors invalidating the assessments made by the reporting officer, or any misuse of powers. The appointing authority also may not substitute its assessment for that of the reporting officers responsible for appraising the work of an official, since the appointing authority does not necessarily know, any more than the Community judicature, the precise situation of each official. Consequently the appointing authority’s review of the reporting officers’ assessments of the officials reported on may be confined to establishing whether there has been any manifest error. The appointing authority cannot accordingly be criticised for not having substituted, in the pre-litigation procedure, its own assessment of the applicant’s performance for that of the reporting officer, replied to all the points disputed by the applicant and examined all his legal arguments.

(see paras 56, 62)

See:

6/79 and 97/79 Grassi v Council [1980] ECR 2141, para. 15

T-18/93 Marcato v Commission [1994] ECR-SC I‑A‑215 and II‑681, para. 45; T-179/02 Pflugradt v ECB [2003] ECR-SC I‑A‑149 and II‑733, para. 46; T-285/04 Andrieu v Commission [2006] ECR-SC I‑A‑2‑161 and II‑A‑2‑775, para. 99; T-249/04 Combescot v Commission [2007] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 78

4.      The statement of reasons for a staff report is given, as a general rule, in the various sections relating to ability, efficiency and conduct in the service. However, reasoning for a staff report may also be evident from details provided by the administration outside the report itself, particularly in the course of an internal pre-litigation procedure specifically for the reporting procedure. A staff report must be regarded as containing a sufficient statement of reasons, despite the possible removal of certain comments which were included in the preliminary version of that report, if the applicant has been able to assess whether the overall appraisal of his performance by the reporting officers was well founded.

Furthermore, Article 43 of the Staff Regulations does not say anything about any duty to provide factual elements to support the comments in a staff report. On the contrary, the reporting officer has a wide discretion to assess the work of those reported on. The existence of that discretion presupposes that the reporting officers are not obliged to include in the staff report all the relevant factual and legal elements supporting their assessment, or to consider and reply to all the points disputed by the person reported on. That finding is not called into question by the existence of a staff reports guide containing mandatory rules which the administration imposed on itself and with which it must comply. The rule laid down in that guide that the assessment of the excellence or inadequacy of the performance of the person reported on must be accompanied by factual comments is not infringed where the reporting officer, having considered the person’s performance to be neither particularly excellent nor particularly inadequate, has not included such comments.

(see paras 80, 82, 88-91, 96)

See:

T-1/91 Della Pietra v Commission [1992] ECR II‑2145, para. 32; Marcato v Commission, para. 45; T-380/94 AIUFFASS and AKT v Commission [1996] ECR II‑2169, para. 57; Pflugradt v ECB, para. 46; T-258/03 Mausolf v Europol [2005] ECR-SC I‑A‑45 and II‑189, para. 25; T-193/03 Piro v Commission [2005] ECR-SC I‑A‑121 and II‑547, para. 59; T-50/04 Micha v Commission [2005] ECR-SC I‑A‑339 and II‑1499, para. 36 and the case-law cited therein, and paras 39 and 40

5.      The sole purpose of Article 26 of the Staff Regulations is to enable an official to submit his comments on all documents relating to his administrative status and all reports relating to his ability, efficiency and conduct. Thus, where the administration has sent an official his staff report prior to placing it in his file and the official concerned has been given an opportunity to have his comments included, there cannot be a finding of an infringement of Article 26 of the Staff Regulations. Furthermore, although Article 26 of the Staff Regulations requires the administration to inform the official of the content of the document to be put on file, it is not required to notify him of the decision to place the document on file itself.

(see paras 133-135)

See:

T-78/96 and T-170/96 W v Commission [1998] ECR-SC I‑A‑239 and II‑745, para. 99; T-77/99 Ojha v Commission [2001] ECR-SC I‑A‑61 and II‑293, paras 56 to 61; T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission [2005] ECR-SC I‑A‑411 and II‑1865, paras 50 to 52 and 73

6.      Under Article 87(1) of the Rules of Procedure of the Civil Service Tribunal, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. An application made in those pleadings for an appropriate order as to costs cannot be regarded as an application for the unsuccessful party to be ordered to pay the costs.

(see paras 146, 148)

See:

C-30/91 P Lestelle v Commission [1992] ECR I‑3755, para. 38; C-470/00 P Parliament v Ripa di Meana and Others [2004] ECR I‑4167, para. 86

F‑141/07 Maniscalco v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 30 to 33