JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
17 July 2024 (*)
(Civil service – Officials – Reports procedure – Appraisal report for 2020 – Obligation to state reasons – Manifest error of assessment – Duty to have regard for the welfare of officials – Liability)
In Case T‑232/23,
LW, represented by I. Bogdan‑Petre, lawyer,
applicant,
v
European Commission, represented by A. Baeckelmans and L. Hohenecker, acting as Agents,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed of J. Svenningsen, President, C. Mac Eochaidh (Rapporteur) and M. Stancu, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By her action under Article 270 TFEU, the applicant, LW, seeks the annulment of her appraisal report of 20 July 2021 for the 2020 period (‘the contested appraisal report’); the annulment, in so far as is necessary, of the decision of the appeal assessor of 13 July 2022 that confirmed the contested appraisal report (‘the decision of the appeal assessor’) and of the decision of the appointing authority of 24 January 2023 that rejected the applicant’s complaint (‘the decision rejecting the complaint’), as well as compensation for the non-material damage which the applicant claims to have suffered.
I. Background to the dispute
2 The applicant is a Grade AD 6 official at the European Commission.
3 During the period from 1 January to 31 December 2020, the applicant worked as an accounting officer in the accounting team of the Directorate-General for [confidential] (1) (‘the team’).
4 On 6 July 2021, the applicant submitted her self-assessment for the 2020 appraisal exercise, in accordance with Article 6(2) of Commission Decision C(2013) 8985 final of 16 December 2013 laying down general provisions for implementing Article 43 of the Staff Regulations [of Officials of the European Union (‘the Staff Regulations’)] and implementing the first paragraph of Article 44 of the Staff Regulations (‘the GIPs’).
5 On 20 July 2021, the applicant’s reporting officer, after holding a formal dialogue with her on 15 July 2021, signed the contested appraisal report, pursuant to Article 43 of the Staff Regulations. The reporting officer concluded that the applicant’s abilities and conduct in the service were unsatisfactory.
6 On 27 July 2021, the countersigning officer confirmed the contested appraisal report.
7 On 11 March 2022, the applicant refused to accept the contested appraisal report and lodged an appeal against it with the appeal assessor.
8 On 29 April 2022, the Director-General for Human Resources and Security gave her opinion on the contested appraisal report and recommended that the conclusion of the reporting officer be followed.
9 On 8 June 2022, a dialogue between the applicant and the appeal assessor took place in the presence of a staff representative and the Human Resources Business Correspondent of the Directorate-General for [confidential].
10 On 13 July 2022, the appeal assessor confirmed the contested appraisal report.
11 On 7 September 2022, the applicant submitted a complaint to the appointing authority, in accordance with Article 90(2) of the Staff Regulations, in respect of the contested appraisal report, as confirmed by the appeal assessor.
12 On 24 January 2023, the appointing authority rejected the applicant’s complaint.
II. Forms of order sought
13 The applicant claims that the Court should:
– annul the contested appraisal report;
– annul, in so far as is necessary, the decision of the appeal assessor;
– annul, in so far as is necessary, the decision rejecting the complaint;
– order the payment of compensation for the non-material damage suffered;
– order the Commission to pay the costs.
14 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
III. Law
A. The subject matter of the action
15 Under Article 7(4) of the GIPs, following the jobholder’s reasoned refusal to accept their appraisal report, that report is not to become final until after the appeal assessor has taken a decision.
16 In the present case, the applicant refused to accept her appraisal report, stating the reasons for refusal, which led to the referral of the matter to the appeal assessor. The act adversely affecting the applicant is thus the contested appraisal report, as confirmed by the decision of the appeal assessor (‘the final appraisal report’).
17 As regards the head of claim directed against the decision rejecting the complaint, it is sufficient to note that that decision confirms the final appraisal report by merely making certain clarifications regarding the reasoning of that decision. In such a situation, it is indeed the legality of the final appraisal report that must be examined, taking into consideration the reasons set out in the decision rejecting the complaint, since that reasoning is deemed to cover that act also (see, to that effect, judgment of 12 July 2018, PA v Parliament, T‑608/16, not published, EU:T:2018:440, paragraph 23 and the case-law cited).
18 Consequently, the applicant’s action for annulment must be regarded as being directed solely against the final appraisal report, the legality of which must be examined by taking into account the statement of reasons contained in the decision rejecting the complaint.
B. The claims for annulment
19 In support of the first, second and third heads of claim, the applicant puts forward four pleas in law. The first plea alleges infringement of Article 43 of the Staff Regulations and Article 2(3), and Articles 5, 6 and 7 of the GIPs. The second plea alleges infringement of Article 296 TFEU, Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 25 of the Staff Regulations, failure to comply with the duty to state reasons, manifest errors of assessment and breach of the principle of good administration. The third plea alleges breach of the principle of proportionality. The fourth plea alleges infringement of Article 21(1) of the Charter and Article 1d(1) of the Staff Regulations, and breach of the duty to have regard for the welfare of officials.
20 The Court considers that it is appropriate to examine the second plea first.
1. The second plea in law, alleging infringement of Article 296 TFEU, Article 41(2) of the Charter and Article 25 of the Staff Regulations, failure to comply with the duty to state reasons, manifest errors of assessment and breach of the principle of good administration
21 By her second plea, the applicant submits that the final appraisal report is not adequately reasoned and breaches the principle of good administration. The applicant also claims that the reporting officer made a manifest error of assessment by concluding that her abilities and conduct were unsatisfactory. Accordingly, she argues that the conclusions relating to the unsatisfactory nature of her abilities and conduct in the service are based on mere allegations and are not supported by any concrete evidence. Those conclusions also ignore the work done by the applicant in 2020 and the context in which she had to work, in particular her sick leave.
22 The Commission disputes those arguments.
(a) The first complaint of the second plea in law, alleging failure to comply with the duty to state reasons
23 In that regard, the Court recalls that appraisal reports are not decisions within the meaning of Article 25 of the Staff Regulations, but are governed by the specific provisions laid down in Article 43 thereof. Furthermore, it follows from settled case-law that although 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, the reporting officers, having a wide discretion when appraising the work of persons upon whom they must report, are not obliged to include in that report all the relevant factual and legal information supporting their appraisal. In that regard, it is sufficient in principle for the appraisal report to set out the salient points of the official’s performance in terms, in particular, of his or her efficiency, ability and conduct in the service, and to appraise them. Subject to the obligation to state reasons and provided that the appraisal is clearly individualised and not impersonal, a reporting officer is not obliged to give details of the grounds for his or her assessment by providing specific examples to substantiate his or her value judgements. Lastly, the case-law requires that particular care be taken with regard to the statement of reasons, especially where the report contains assessments that are less favourable than those in a previous appraisal report (see, to that effect, judgment of 13 July 2022, TL v Commission, T‑677/21, not published, EU:T:2022:456, paragraphs 22, 23 and 31 and the case-law cited).
24 In the present case, the reporting officer considered that the applicant’s abilities were unsatisfactory (Section ‘3.2 Ability’ of the final appraisal report). In support of that conclusion, the reporting officer noted various elements, such as excessive use of written communication entailing a loss of time and efficiency for the entire team; challenges to decisions and instructions of her hierarchy which went beyond normal exchanges of views; a lack of autonomy in carrying out her tasks; difficulties in adapting to her new working environment, and her inability to understand comments made to her for the purpose of her improvement. Those elements were illustrated by several specific examples.
25 Similarly, the reporting officer considered that the applicant’s conduct in the service was unsatisfactory (Section ‘3.3 Conduct in the service’ of the final appraisal report). On that point, the reporting officer noted that the applicant’s conduct in the service had an impact on the efficiency and performance of the entire team, that she had displayed little willingness and effort to adapt and integrate, that several meetings were organised to explain to her how that team functioned without her behaviour changing. Her style, questioning the role and competence of her colleagues and hierarchical superiors, was also perceived as disruptive. Lastly, the reporting officer highlighted the fact that the applicant had not attended the mid-year performance review or accepted the proposal of informal mediation. Once again, those elements were illustrated by several specific examples. In particular, the reporting officer drew attention to the applicant’s refusal, during the lockdown decided on by the Belgian authorities due to the COVID-19 pandemic, to work with her corporate laptop and to forward her private phone number. According to the reporting officer, the applicant’s behaviour prevented her colleagues from reaching her from March to November 2020 except by email or a pre-booked meeting on her private Skype account. The reporting officer also considered that that behaviour was not collegial; that it was a source of stress for the applicant’s colleagues, and that it had also severely harmed the applicant’s capacity to work (‘operability’) as well as her integration into the team.
26 Lastly, the reporting officer acknowledged that it was normal for the applicant to still be in a professional learning phase in 2020 due to the complexity of the accounting tasks in the Directorate-General for [confidential] (Section ‘3.1 Efficiency’ of the final appraisal report). The reporting officer also recommended that the applicant undergo training to improve her conduct and adapt to the rules of behaviour and collegiality (Section ‘3.6 Learning and development’ of the final appraisal report).
27 It is therefore apparent from paragraphs 24 to 26 above that the final appraisal report is reasoned to the requisite legal standard, since it clearly and specifically sets out the reasons which led the reporting officer to consider that the applicant’s abilities and conduct in the service were unsatisfactory.
28 Furthermore, and contrary to what the applicant claims, the final appraisal report did not disregard the context in which she had to work in 2020. That report contains express references to the fact that the applicant was still in a learning phase and that the year 2020 was marked by the COVID-19 pandemic. As regards the fact that it does not refer to the applicant’s sick leave, it is sufficient to recall that the case-law does not require the reasoning of an act to specify all the relevant factual and legal information. (see paragraph 23 above). Accordingly, if the reporting officer had no reason to consider that the applicant’s justified absences may have had a significant effect on the latter’s abilities or conduct in the service, that officer cannot be criticised for not having mentioned that fact in the contested appraisal report (see, to that effect, judgment of 6 October 2009, Sundholm v Commission, T‑102/08 P, EU:T:2009:390, paragraph 40).
29 Lastly, in so far as the applicant criticises the appeal assessor for not providing adequate reasons for his decision, it is sufficient to recall that it is permissible for the appeal assessor to merely confirm the assessment of the first reporting officer (see, to that effect, judgments of 1 June 1983, Seton v Commission, 36/81, 37/81 and 218/81, EU:C:1983:152, paragraph 20, and of 8 September 2021, QB v ECB, T‑555/20, not published, EU:T:2021:552, paragraph 65). In any event, the Court observes that the appeal assessor, after taking cognisance of the applicant’s written arguments and holding the dialogue referred to in Article 7(2) of the GIPs with her, confirmed the conclusions of the contested appraisal report by clearly and specifically setting out considerations similar to those relied on by the reporting officer.
30 Nonetheless, the conclusions set out in paragraphs 27 to 29 above are without prejudice to any manifest errors of assessment that may have been made. In that regard, the duty to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 14 December 2022, SY v Commission, T‑312/21, EU:T:2022:814, paragraph 46 and the case-law cited). Accordingly, the applicant’s arguments disputing the merits of the final appraisal report are of no relevance to the examination of the first complaint alleging failure to comply with the duty to state reasons. However, those arguments are examined in the context of the second complaint, in paragraphs 32 to 64 below.
31 Consequently, the first complaint of the second plea in law must be rejected.
(b) The second complaint of the second plea in law, alleging manifest errors of assessment
32 According to settled case-law, judicial review of appraisal reports is limited to ensuring that the procedure was conducted in a regular manner, that the facts are materially correct, and that there was no manifest error of assessment or misuse of powers by persons who are required to draw up those documents. In other words, reporting officers enjoy the widest discretion when judging the work of people whom they are responsible for assessing and it is not for the Court to review the merits of that assessment, containing complex value judgements which, by their nature, are not amenable to objective verification, except in the event of manifest error (see, to that effect, judgment of 13 July 2022, TL v Commission, T‑677/21, not published, EU:T:2022:456, paragraph 38 and the case-law cited).
33 In addition, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of an appraisal report, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent. Accordingly, an error may be classified as manifest only where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended the administration’s exercise of its discretion to be subject (see judgment of 13 July 2022, TL v Commission, T‑677/21, not published, EU:T:2022:456, paragraph 39 and the case-law cited).
34 It is in the light of that case-law that the Court must examine whether, as the applicant claims in paragraphs 46 to 52 of the application, the reporting officer made a manifest error of assessment by concluding that the applicant’s abilities and conduct were unsatisfactory.
(1) The unsatisfactory nature of the applicant’s abilities
35 The applicant acknowledges the existence of written communications with her colleagues and hierarchical superiors but denies sending an excessive amount. According to her, the fact that she was a new recruit and the fact that her team leader gave only oral instructions justified the use of written communications. Furthermore, her team leader and colleagues were free to respond to her or not. The applicant therefore disputes that her written requests led to a loss of time and efficiency for her team leader and colleagues.
36 That line of argument must be rejected, since the applicant is merely putting forward her own assessment of the situation. She does not, however, demonstrate that the reporting officer made a manifest error of assessment by considering that her requests for written instructions were too numerous given the standards prevailing in the working environment and that, by making so many requests, she caused a loss time and efficiency for the entire team.
37 Moreover, Annexes A.2.c, A.2.l and A.6.a (exhibits G and M), which the applicant herself submitted as evidence, indicate that her team leader requested her, on several occasions, to prioritise oral communication with him and her colleagues, as was the norm in that team. In particular, in his email of 13 February 2020 (Annex A.2.c), the applicant’s team leader informed her that she was constantly requesting written procedures; that he had already shown her a series of documentary sources in connection with her work; that she should not hesitate to display initiative as a new recruit; that he preferred oral communication to email exchanges and that ‘[his] door [was] always open for everybody in the team, and for her in particular in this “coaching” period’.
38 The applicant also denies having challenged decisions taken during meetings, in particular the meetings of 23 April and 4 May 2020. On the contrary, she confirmed ‘her commitment to fulfil [the] decisions’ taken by her team leader on 23 April 2020 and immediately started work on the task entrusted to her on 4 May 2020.
39 That line of argument must be rejected, since the applicant is merely putting forward her own assessment of the situation. She does not, however, demonstrate that the reporting officer made a manifest error of assessment by considering that, on certain occasions, she challenged decisions and instructions of her hierarchy in a manner which went beyond a normal exchange of views.
40 Moreover, and contrary to what the applicant claims, her own evidence confirms the reporting officer’s conclusions. As regards the meeting of 23 April 2020, the emails reproduced in Annex A.2.g show that the applicant questioned the guidance given by her team leader concerning the carrying out of the task which he had entrusted to her, which ultimately led him to relieve her of it (see paragraph 44 below). Similarly, by email of 5 May 2020, the applicant’s team leader criticised her for stating, during the meeting of 4 May 2020, that she ‘[had] not … received sufficient guidance’ and that she would ‘demonstrate’ to him that, in such circumstances, she was ‘not able to duly perform the task’ which had been entrusted to her (Annex A.2.l).
41 The applicant also claims not to understand the reasons which led the reporting officer to consider that she had not understood that the comments which had been made to her were intended to guide her for further development in her job. In particular, the applicant claims not to understand the ‘legitimacy’ of the link established by the reporting officer between the fact that she, the applicant, had insisted on her need for training on financial circuits, in order to carry out the task entrusted to her on 23 April 2020, and the conclusion that her abilities were unsatisfactory.
42 That line of argument must be rejected, since the applicant is merely putting forward her own assessment of the situation. The applicant does not, however, demonstrate that the reporting officer made a manifest error of assessment by considering that she had not understood that the comments which had been made to her were intended to guide her for further development in her job.
43 As regards the ‘legitimacy’ of the reporting officer’s conclusions, the Court recalls that, according to the case-law cited in paragraph 32 above, reporting officers enjoy the widest discretion when judging the work of people whom they are responsible for assessing. The reporting officer was therefore entitled to refer, by way of example, to the fact that, during the meeting of 23 April 2020, the applicant had insisted on her need to undergo training on financial circuits, without understanding that her team leader, for his part, had made recommendations to her for the purposes of carrying out the task relating to accounting quality.
44 Moreover, the latter point is supported by an exchange of emails between the applicant’s team leader and the applicant (Annex A.2.g). In her emails of 23 April 2020, the applicant insists on her need for training concerning financial circuits in order to carry out that task and on the fact that her requests for training had already been refused in the past. For his part, her team leader focuses, in his emails of 23 April 2020, on the need to produce quality work while respecting deadlines, which implies that he cannot wait until the applicant knows those processes in detail. In fact, he states that if he had to wait for her to produce perfect work, the deadlines would not be met. The applicant’s team leader also refers to the fact that, during that meeting of 23 April 2020, he told her that it was necessary to find a balance between her learning curve and respecting deadlines, and that he could help her in that regard. Her team leader also specifies that he told her, during that meeting, that, while working on specific files, like that of accounting quality, she was learning more than she thought, including about processes. Lastly, in an email of 27 April 2020, the applicant’s team leader noted that disagreement between them and decided to relieve her of that task. He also adds that the applicant does not need specific training in order to carry out the tasks of the team, since she is an accountant and is learning those specificities by doing her job with the coaching of two of her colleagues.
45 In the light of the foregoing, the applicant has not demonstrated that the reporting officer made a manifest error of assessment by considering that the applicant’s abilities were unsatisfactory.
(2) The unsatisfactory nature of the applicant’s conduct in the service
46 The applicant denies lacking the willingness and effort to integrate into the team. On the contrary, she sought to undergo training and receive feedback on the tasks she carried out, but those requests were discouraged. The applicant was also not included in internal exchanges of information or invited to team meetings. By those means, her efforts to integrate were resisted by her hierarchy. Finally, the use of her private computer during the lockdown due to the COVID-19 pandemic had been justified by severe eye problems.
47 In that regard, in order to reach the conclusion that there was a lack of willingness and effort to integrate into the team, the reporting officer noted the fact that the applicant had not adhered to the standards of collegiality and respect prevailing in the working environment. Indeed, several meetings had to be organised to explain the team’s ‘modus operandi’ and their expectations to the applicant. However, according to the reporting officer, the applicant did not change her attitude, which made it difficult to explain new tasks to her and to train her. Her attitude had also been the source of a very tense situation which affected the performance of the entire team.
48 The Court notes that the matters referred to in paragraph 47 above have not been disputed by the applicant.
49 Furthermore, as regards the use of her private computer during the lockdown due to the COVID-19 pandemic, the applicant herself acknowledges, in her written pleadings, that her hierarchy had asked her to retrieve her corporate laptop. However, according to the applicant, that request had ignored the needs associated with her severe eye problems.
50 On that point, the Court finds that the applicant has not adduced any evidence to establish that, in 2020, she suffered severe eye problems which had prevented her from working on her corporate laptop. Similarly, none of the annexes to which the applicant refers (Annexes A.2.h, A.2.i and A.2.j) mention such a visual impairment. In the email of 27 April 2020 (Annex A.2.h), the applicant states that her corporate laptop has a smaller keyboard and screen than her private computer, which makes the manipulation of certain files, in particular Excel files, more difficult. However, in that email, the applicant does not refer to any eye problem. Moreover, the fact that the applicant attempted to have her corporate laptop delivered to her home (Annexes A.2.h and A.2.i) demonstrates that she had intended to work with that hardware during the lockdown, despite now claiming that it was unsuitable for her visual abilities. Finally, as regards Annex A.7.b, the Court notes that it is from a considerably later date than that on which the final appraisal report was adopted. However, according to settled case-law, the legality of the contested measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 148 and the case-law cited). In any event, Annex A.7.b does not support the applicant’s claims in any way, since it is merely a prescription for glasses and not a finding that it is medically impossible for her to work with a small screen.
51 The applicant has therefore not proved that she was medically unable to work with her corporate laptop, as her Head of Unit had requested. In those circumstances, the applicant has not demonstrated that the reporting officer made a manifest error of assessment by considering that that behaviour represented a clear challenge to the instructions of her hierarchy.
52 Furthermore, the applicant claims not to understand why the reporting officer considered that the use of her private computer prevented her colleagues from calling her, since they could use the Zoom, WebEx, Teams or Skype applications as alternatives to phone calls.
53 However, those arguments, centred on the existence of alternative means of communication, confirm that the applicant was not contactable by phone. Moreover, in her written pleadings, the applicant does not dispute the fact, which was also highlighted by the reporting officer, that she had not shared her private phone number with her colleagues.
54 The applicant also claims not to understand why the reporting officer considered that her use of videoconferencing with her colleagues was a burden for the entire team.
55 That line of argument is based on a misreading of the final appraisal report. The reporting officer did not consider that the applicant’s use of videoconferencing was a burden for the entire team. It was the fact that it was impossible to contact the applicant by phone and that communication with her could only occur by email or through her private Skype account which led the reporting officer to consider that that behaviour was not collegial and was a burden for the entire team.
56 The applicant also asserts that the reporting officer did not demonstrate that the applicant had problems integrating into the team or that she questioned the abilities of her colleagues and hierarchy.
57 In that regard, the Court recalls that, in accordance with the case-law referred to in paragraphs 32 and 33 above, it is for the applicant to demonstrate that the final appraisal report is vitiated by a material inaccuracy of the facts or a manifest error of assessment. However, the applicant has not submitted any evidence in support of her claims.
58 The applicant disputes that her conduct in the service could be considered unsatisfactory on the ground that she did not attend the mid-year performance review, while, on that date, she was on sick leave, and that she did not accept the informal ‘mediation’ proposed by her Head of Unit.
59 Even though the applicant states that she did not receive an invitation to take part in a genuine mediation, she nevertheless acknowledges that her Head of Unit proposed that she take part in an informal ‘mediation’ with the assistance of a human resources representative. Moreover, it is apparent from Annex A.2.n that that informal ‘mediation’ was not about disclosing any personal information, making accusations or judging the applicant’s work. It was clearly stated that the objective of that informal ‘mediation’ was to provide external support to the entire team in order to address their difficulties and tensions, which, according to the Head of Unit, could have benefited everyone. Lastly, the applicant’s Head of Unit also suggested to her that she contact human resources herself, as a first step in that process. The applicant has neither claimed to have initiated that process nor submitted any evidence indicating that she did so.
60 It is apparent from that information that the applicant did not agree to participate in the informal ‘mediation’ that had been proposed to her – a point which she does not even dispute – and which was intended to reduce tensions within the team. That attitude thus tends to confirm the reporting officer’s finding of a lack of collegiality and willingness to integrate into the team on the part of the applicant. The reporting officer was therefore entitled to take that attitude into account in her assessment of the applicant’s conduct in the service.
61 Lastly, as regards the mid-year performance review, the Commission did not dispute the applicant’s argument that that meeting had to be cancelled on the ground that, at that time, she was on sick leave. In those circumstances, it has not been proved that a mid-year performance review was held. However, that fact cannot, in itself, call into question the general conclusion of the reporting officer concerning the applicant’s conduct in the service. As is apparent from paragraphs 47 to 60 above, that general conclusion of the reporting officer is based on a body of evidence the accuracy of which has been established and some of which is not even disputed by the applicant (see paragraphs 47 and 48 above).
62 Similarly, none of the arguments referred to in paragraph 49 of the application are capable of demonstrating that the reporting officer’s general conclusion on the applicant’s conduct in the service is manifestly incorrect. Even if they were substantiated, those arguments concern elements which were not taken into account by the reporting officer in Section ‘3.3 Conduct in the service’ of the final appraisal report and which, accordingly, are not capable of calling into question the considerations set out in paragraphs 47 to 60 above.
63 In the light of the foregoing considerations, the applicant has not demonstrated that the reporting officer made a manifest error of assessment by considering that the former’s conduct in the service was unsatisfactory.
64 Consequently, the second complaint of the second plea in law must be rejected and, accordingly, so must the second plea in its entirety.
2. The first plea in law, alleging infringement of Article 43 of the Staff Regulations and Article 2(3), and Articles 5, 6 and 7 of the GIPs
65 By her first plea, the applicant submits that the reporting officer did not have the technical skills necessary to assess properly her work as an accountant. Moreover, the conclusions relating to the unsatisfactory nature of the applicant’s abilities and conduct in the service are not based on factual evidence, but on mere allegations. In addition, the appeal procedure was not observed. The dialogue with the appeal assessor was not held within the period prescribed by Article 7(2) of the GIPs. That dialogue lasted only 20 minutes, and consequently the appeal assessor and the applicant could not discuss several of the reporting officer’s arguments. The appeal assessor also relied on new arguments that were not discussed with the applicant during the dialogue. Moreover, the appointing authority did not take into account the new evidence which the applicant provided. Lastly, the reporting officer misused her powers by using the final appraisal report as an instrument of sanction.
66 The Commission disputes these arguments.
(a) The first complaint of the first plea in law, alleging the incompetence of the reporting officer and the absence of a factual basis for the final appraisal report
67 The argument relating to the alleged lack of technical competence of the reporting officer must be rejected. Under the first subparagraph of Article 3(1) of the GIPs, it was for the applicant’s Head of Unit to assume the role of reporting officer. However, the applicant does not rely on any infringement of the first subparagraph of Article 3(1) of the GIPs. In any event, the conclusions relating to the unsatisfactory nature of the applicant’s abilities did not concern her technical accounting skills. As noted in paragraph 24 above, the reporting officer’s conclusions are based essentially on excessive use of written communication and a lack of autonomy on the part of the applicant; challenges to decisions and instructions of her hierarchy; difficulties in adapting to her new working environment, and her inability to understand comments made to her for the purpose of her improvement.
68 Furthermore, the Court notes that the applicant has not put forward any specific evidence to demonstrate that, in breach of Article 2(3) of the GIPs, the conclusions relating to the unsatisfactory nature of her abilities and her conduct in the service were based on mere allegations and not on facts. On the contrary, and as the Court has already observed in its examination of the second plea in law, Sections ‘3.2 Ability’ and ‘3.3 Conduct in the service’ of the final appraisal report are based on specific elements, which are illustrated by several specific factual examples (see paragraphs 24 to 64 above).
69 Consequently, the applicant’s argument alleging the absence of a factual basis for the final appraisal report must also be rejected. Accordingly, the first complaint of the first plea in law must be rejected in its entirety.
(b) The second complaint of the first plea in law, alleging defects in the appeal procedure
70 The applicant’s argument that the dialogue with the appeal assessor was held out of time must be rejected. It is true that, in accordance with Article 7(2) of the GIPs, the appeal assessor should have initiated that dialogue with the applicant within 10 working days of the date on which she refused to accept the contested appraisal report. It is common ground between the parties that that time limit was not observed. Indeed, the applicant refused to accept the contested appraisal report on 11 March 2022, and the dialogue with the appeal assessor was held on 8 June 2022 (see paragraphs 7 and 9 above).
71 However, according to settled case-law, a procedural irregularity can be sanctioned by the annulment of the contested decision only if it is established that that procedural irregularity may have had an influence on the content of the decision (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 55 and the case-law cited). The applicant has neither claimed nor, a fortiori, demonstrated that, without that procedural irregularity, the final appraisal report could have been different.
72 The applicant’s argument concerning the brevity of the dialogue with the appeal assessor must be rejected. It is irrelevant whether the dialogue lasted 20 minutes as the applicant claims or 30 minutes as the Commission maintains. Article 7(2) of the GIPs does not set any minimum or maximum duration for that dialogue.
73 Moreover, the appeal assessor cannot be criticised for not having analysed, during that dialogue, the grounds of the contested appraisal report and the arguments that the applicant had set out in response. It is expressly stated in the decision of the appeal assessor that, during that dialogue, the applicant’s main objective was to secure her transfer to another Directorate-General of the Commission. Indeed, that statement by the appeal assessor is not disputed by the applicant in the application. Furthermore, that statement by the appeal assessor is also confirmed by the staff representative, since he refers only to the issue of the applicant’s transfer to another Directorate-General when he summarises the content of that dialogue. In the light of the subject matter of that discussion, the applicant’s arguments challenging the contested appraisal report were, accordingly, not examined in detail during the dialogue. However, the subsequent decision of the appeal assessor, which includes an express reference to those arguments of the applicant, is reasoned to the requisite legal standard (see paragraph 29 above).
74 The applicant’s argument that the appeal assessor put forward new arguments must also be rejected. It is true that the appeal assessor stated that ‘the quality of [the applicant’s] work was sufficient for simpler, repetitive tasks and assignments for which a detailed written procedure was available’. However, the appeal assessor draws no particular conclusion from that finding. The appeal assessor merely puts that finding into perspective, as shown by the use of the conjunction ‘Although’ at the start of the sentence at issue, with another finding based on the applicant’s inability to work independently and autonomously (‘she was not able to work independently and use her knowledge and expertise in an autonomous way’). It is exclusively on that second finding, which merely supports the reporting officer’s assessment, that the appeal assessor bases his conclusion that the applicant’s abilities are not those of an official of her category and grade (‘In that sense, her abilities do not comply with what could be expected from an official of her category and grade’). The appeal assessor did not therefore rely on any new argument to confirm the content of the contested appraisal report.
75 Lastly, the applicant’s argument alleging that the appeal assessor found that, in 2022, she had refused to be transferred to another unit in the Directorate-General for [confidential] (‘[she] refused to be transferred to another unit in DG [confidential]’) and that she still refused any work within her unit (‘she still refuses any work in her current unit’) must be rejected. In the structure of the decision of the appeal assessor, and as has already been noted by the appointing authority, that finding is linked to a contextual element, namely the applicant’s desire to leave the Directorate-General for [confidential]. In the decision of the appeal assessor, that finding immediately follows the paragraph concerning the content of his dialogue with the applicant, which was mainly devoted to her possible transfer to another Directorate-General of the Commission (see paragraph 73 above). That finding is therefore unrelated to her appraisal for the year 2020, with the result that, even if it were incorrect, it could not call into question the legality of the final appraisal report.
76 Consequently, the second complaint of the first plea in law must be rejected.
(c) The third complaint of the first plea in law, alleging the failure of the appointing authority to take into account the new evidence provided by the applicant
77 The applicant claims to have sent the appointing authority new evidence concerning her exclusion from work, meetings and the information channel by her hierarchical superiors. However, she argues, the appointing authority does not refer to that new evidence in its decision and ignores the context described by that evidence.
78 That line of argument must be rejected, since the applicant merely refers, in a very vague manner, to certain factual elements, without identifying precisely the evidence which allegedly substantiates those elements and which she claims was not taken into account by the appointing authority. It is therefore impossible for the Court to verify whether or not all the new evidence submitted by the applicant was taken into account by the appointing authority.
79 In any event, the Court finds that the appointing authority expressly referred to the fact that the applicant had submitted, on 1 October 2022, additional elements in support of her claims, and, in particular, as regards her alleged exclusion from her unit’s information channel (pages 2 and 13 of the decision rejecting the complaint). Those new elements were therefore taken into account by the appointing authority when it examined the claims of psychological harassment made by the applicant.
80 Consequently, the third complaint of the first plea in law must be rejected.
(d) The fourth complaint of the first plea in law, alleging misuse of powers by the reporting officer
81 The applicant asserts that the reporting officer used the final appraisal report to sanction her and block her career.
82 Without there being any need to consider whether there is, in the complaint submitted under Article 90(2) of the Staff Regulations, an argument that may be linked to the present complaint alleging misuse of powers by the reporting officer, in accordance with the rule of correspondence between the Article 90(2) complaint and the application, it must be held, in any event, that the fourth complaint of the first plea in law is unfounded.
83 According to the case-law, a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see judgment of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraph 31 and the case-law cited; see, to that effect, judgment of 14 December 2022, TM v ECB, T‑440/21, not published, EU:T:2022:800, paragraphs 82 to 84 and the case-law cited). However, none of the arguments put forward by the applicant establish that the final appraisal report was adopted with the exclusive or main purpose of sanctioning her or blocking her career. On the contrary, and as the Court has already observed in its examination of the second plea in law, Sections ‘3.2 Ability’ and ‘3.3 Conduct in the service’ of that report are based on specific elements and are not vitiated by any manifest error of assessment on the part of the reporting officer (see paragraphs 24 to 64 above).
84 Consequently, the fourth complaint of the first plea in law must be rejected, and, accordingly, so must that plea in its entirety.
3. The third plea in law, alleging breach of the principle of proportionality
85 By her third plea, the applicant submits that the final appraisal report was adopted in breach of the principle of proportionality. According to the applicant, several circumstances should have led the reporting officer, and subsequently the appeal assessor, to conclude that the applicant’s abilities and conduct in the service were satisfactory.
86 The Commission disputes those arguments.
87 In that regard, the principle of proportionality requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary for attaining the aim pursued, on the understanding that, where there is a choice between several appropriate measures, the least onerous must be used, and that the disadvantages caused must not be disproportionate to the aims pursued. In the light of the broad discretion that the institutions have in organising their departments and deploying the staff which they have at their disposal, the Court must limit itself to ascertaining whether the act decided on is not manifestly inappropriate in relation to the objective pursued (see judgments of 30 January 2020, BZ v Commission, T‑336/19, not published, EU:T:2020:21, paragraph 28 and the case-law cited, and of 16 March 2022, Kühne v Parliament, T‑468/20, not published, EU:T:2022:137, paragraph 126 and the case-law cited).
88 In the present case, the applicant claims that the conclusions relating to the unsatisfactory nature of her abilities and her conduct in the service are based solely on the opinion of the reporting officer and not on factual elements.
89 However, that argument has already been rejected in paragraph 68 above.
90 The applicant also asserts that all her previous appraisal reports concluded that her performance was satisfactory.
91 That argument must be rejected. The very wording of Article 2(1) of the GIPs provides that the annual appraisal exercise is to cover the period from 1 January to 31 December of the preceding year. Accordingly, if that provision is not to be rendered completely redundant, reporting officers cannot be bound by assessments contained in earlier appraisal reports, particularly since an official’s ability, efficiency and conduct in the service may change positively or negatively over time. That conclusion applies all the more in the present case, since the applicant’s earlier appraisal reports were drafted by other reporting officers and concerned her performance and conduct in other services.
92 The applicant states that, in 2020, she was a new recruit in her department. In addition, she argues that she carried out numerous tasks, despite the COVID-19 pandemic, the lack of training, her sick leave, her exclusion from the information and communication channels within her department and the fact that she was not entrusted with any work between May and July 2020.
93 In that regard, and as the applicant herself recalls, the reporting officer clearly stated that, despite her being in a learning period, the applicant had worked on all the tasks referred to in her self-assessment. The reporting officer also concluded that the applicant’s efficiency was satisfactory (Section ‘3.1 Efficiency’ of the final appraisal report). The reporting officer therefore did take into account the fact that the applicant was a new recruit and the tasks that she had carried out.
94 Moreover, even if they were established, the applicant has not explained how, specifically, the contextual elements referred to in paragraph 92 above demonstrate that the conclusions of the reporting officer and the appeal assessor are manifestly inappropriate. In particular, the applicant does not explain either why or how those contextual elements offset the elements relied on by the reporting officer and the appeal assessor in order to conclude that her abilities and her conduct in the service were unsatisfactory. The applicant’s arguments must therefore be rejected.
95 Lastly, the applicant asserts that her abilities and conduct in the service were assessed to be unsatisfactory in the light of factors unrelated to her work, such as her absence from the mid-year performance review and the fact that she did not accept the proposal of informal ‘mediation’.
96 That line of argument must be rejected, in so far as it concerns the applicant’s refusal to accept the informal ‘mediation’ proposal, for the same reasons as those set out in paragraphs 59 and 60 above.
97 As regards the mid-year performance review, the Court has already noted that the Commission had not proved that that meeting was held. However, that fact in itself cannot establish that the general conclusion of the reporting officer was inappropriate. That general conclusion was based on a body of evidence (see paragraph 61 above). In addition, the applicant’s other arguments disputing the proportionality of the findings of the reporting officer and the appeal assessor have been rejected in paragraphs 88 to 96 above.
98 Accordingly, the third plea in law must be rejected.
4. The fourth plea in law, alleging infringement of Article 21(1) of the Charter and Article 1d(1) of the Staff Regulations, and breach of the duty to have regard for the welfare of officials
99 By her fourth plea, the applicant submits that the reporting officer discriminated against her on account of her state of health, since the latter did not take into account, when adopting the final appraisal report, the applicant’s hypermetropia and her long period of sick leave in 2020. Furthermore, the reporting officer made inappropriate comments about the applicant’s intellectual ability.
100 The Commission contends that the fourth plea in law is inadmissible. Alternatively, the Commission contends that that plea should be rejected as unfounded.
101 Without there being any need to consider whether there is, in the complaint submitted under Article 90(2) of the Staff Regulations, an argument that may be linked to the present plea, in accordance with the rule of correspondence between the Article 90(2) complaint and the application, it must be held, in any event, that that plea is unfounded.
102 First, the claim that the reporting officer ‘sanctioned’ the applicant for having worked on her private computer, which allowed her to work in conditions more suited to her state of health, is based on a misreading of the final appraisal report.
103 In her appraisal of the applicant’s ‘ability’, the reporting officer merely referred to the ‘lengthy exchanges’ that she had had with the applicant concerning the applicant’s refusal to retrieve her corporate laptop when the latter was teleworking in order to illustrate that the applicant’s challenges to decisions and instructions of her hierarchy went beyond the normal framework of an employment relationship and caused her entire team to lose time and efficiency. Furthermore, in the appraisal of the applicant’s ‘conduct in the service’, the reporting officer and the appeal assessor merely noted that that refusal had not only prevented her colleagues from easily reaching her but had also had a strong impact, inter alia, on her integration into her new team.
104 Those assessments, which do not refer to the applicant’s state of health or to any prohibition on working on her private computer, do not establish that she has been the victim of discrimination on grounds of disability within the meaning of Article 21(1) of the Charter or Article 1d(1) of the Staff Regulations.
105 Secondly, the argument that she was assessed for a full year of work whereas she was absent for justified reasons for a large part of the period under assessment likewise does not constitute discriminatory treatment based on disability. It is sufficient to recall, in that regard, that Article 2(1) of the GIPs provides that a report covering the period from 1 January to 31 December of the preceding year is to be drawn up for each jobholder who was in active employment or seconded in the interests of the service for a continuous period of at least one month during the reporting period.
106 Thirdly, the fact that the reporting officer did not take into account the applicant’s justified absences, which had been ‘one of the main reasons [standing] in the way of [her] integration’, does not constitute a breach of the duty to have regard for the welfare of officials. While an official’s justified absences cannot penalise him or her in the context of his or her assessment, taking them into account is merely an option for reporting officers, who must consider that possibility only where circumstances warrant it (see, to that effect, judgment of 6 October 2009, Sundholm v Commission, T‑102/08 P, EU:T:2009:390, paragraph 39).
107 In the present case, the reporting officer was entitled to take the view, without breaching the duty to have regard for the welfare of officials, that it was not necessary to take into account the applicant’s justified absences in the appraisal of her ‘conduct in the service’, since the applicant herself had hindered her integration into the team by refusing to retrieve her corporate laptop, which made it more difficult for her colleagues to reach her. Moreover, the Court notes that the reporting officer considered that the applicant’s ‘efficiency’ was satisfactory, despite the fact that, on account of her justified absences, she had necessarily less actual working time to carry out her tasks.
108 Fourthly and lastly, the applicant has not provided any explanation enabling the Court to assess how, in her view, the assessments that she ‘did not understand that the feedback given to her was intended to guide her for further development in her job’ and that she ‘did not understand the guidance [given]’ constitute discriminatory treatment based on a ground prohibited by EU law.
109 In the light of the foregoing, the fourth plea in law must be rejected.
110 Consequently, the claims for annulment must be dismissed.
C. The claim for compensation
111 The applicant asks the Court to order the Commission to compensate her for the non-material damage she claims to have suffered as a result of the irregularities vitiating the contested appraisal report, the decision of the appeal assessor and the decision rejecting the complaint. The applicant claims that those irregularities caused a considerable amount of stress and strong feelings of injustice and lack of respect which adversely affected her health, dignity and professional reputation. She assesses her non-material damage at one euro ex aequo et bono.
112 The Commission disputes those arguments.
113 In accordance with settled case-law, where an application for compensation is closely related to an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for compensation (see judgment of 30 November 2022, KN v Parliament, T‑401/21, EU:T:2022:736, paragraph 29 and the case-law cited).
114 In the present case, the claims for annulment and the claim for compensation are closely related in that way, in so far as the non-material damage for which the applicant requests compensation stem from the irregularities which allegedly vitiate the contested appraisal report, the decision of the appeal assessor and the decision rejecting the complaint. Moreover, the applicant has not put forward any specific evidence or adduced any proof to establish the reality of the non-material damage she allegedly suffered.
115 The claim for compensation must therefore be dismissed and, accordingly, so must the action in its entirety.
IV. Costs
116 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
117 Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders LW, in addition to bearing her own costs, to pay the costs incurred by the European Commission.
Svenningsen | Mac Eochaidh | Stancu |
Delivered in open court in Luxembourg on 17 July 2024.
V. Di Bucci | | S. Papasavvas |