JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

9 October 2013

Case F‑116/12

Kari Wahlström

v

European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)

(Civil service — Temporary staff — Staff report — Obligation to state reasons — Annual dialogue with the reporting officer — Setting objectives)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Wahlström seeks annulment of his staff report for 2010 and an order that the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex, or ‘the Agency’) pay compensation of EUR 10 000 for the damage suffered as a result of the failure to set objectives for the purpose of appraising his professional performance in that year.

Held:      The application is dismissed. Mr Wahlström is to bear his own costs and is ordered to pay the costs of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.

Summary

1.      Officials — Reports procedure — Appraisal report — Obligation to state reasons — Scope — Duty to provide factual particulars to support the comments in an appraisal report — None

(Staff Regulations, Art. 43)

2.      Officials — Reports procedure — Career development report — Report drawn up without the official concerned having any involvement in the procedure — Infringement of the right to be heard

(Staff Regulations, Art. 43)

3.      Officials — Reports procedure — Appraisal report — Drawing up — Report vitiated by a procedural irregularity — Consequences

(Staff Regulations, Art. 43)

4.      Officials — Reports procedure — Appraisal report — Obligation to set objectives to be achieved — Annulment of report where objectives not set

(Staff Regulations, Art. 43)

1.      In the drawing up of an appraisal report, 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 or other staff member concerned. The appraisal report is designed not to build an exhaustive and purely descriptive picture of the performance of the official concerned in carrying out the tasks associated with his post, but to highlight, on the basis of the salient points of his performance, his ability, efficiency and conduct in the service.

Furthermore, an authority authorised to conclude contracts of employment may not, in particular, be criticised, in a plea in law alleging an inadequate statement of reasons, for not having substantiated the appraisal of the professional performance of a member of staff with additional specific examples, since reading the contested appraisal report already gives the person concerned sufficient information to determine whether the report is well founded or whether it is defective in such a way that its legality may be challenged, and enables the Court to exercise its review of the legality of that report.

(see paras 22-23, 26)

See:

12 September 2007, T‑249/04 Combescot v Commission, para. 86; 8 September 2009, T‑404/06 P ETF v Landgren, para. 108 and the case-law cited therein

10 September 2009, F‑139/07 van Arum v Parliament, paras 88 and 101; 29 September 2011, F‑74/10 Kimman v Commission, para. 95, on appeal before the General Court of the European Union, Case T‑644/11 P

2.      In the drawing up of an appraisal report, it is for the reporting officer to invite the holder of the post to an annual dialogue within 20 working days of the start of the appraisal exercise in order to prevent the appraisal report from being adopted before the staff member concerned is given the proper opportunity to express his views, so that failure to hold a dialogue with the official or other staff member also constitutes an infringement of the right to be heard. Proper dialogue is imperative during the reporting exercise since it constitutes the key to the report and requires direct contact between the official under appraisal and the reporting officer, which alone is capable of encouraging a frank and detailed discussion enabling the persons concerned, first, to gauge accurately the nature, reasons for and degree of any differences in opinion between them and, second, to arrive at a better understanding.

(see paras 36-37)

See:

30 September 2004, T‑16/03 Ferrer de Moncada v Commission, paras 40 and 48; 14 September 2006, T‑115/04 Laroche v Commission, para. 36; 25 October 2006, T‑173/04 Carius v Commission, para. 69; 25 October 2007, T‑27/05 Lo Giudice v Commission, paras 46 to 49

3.      For a procedural irregularity to result in the annulment of a measure, and particularly of an appraisal report of an official or other staff member of the Union, it must be the case that, had it not been for that irregularity, the outcome of the procedure might have been different.

(see para. 40)

See:

21 March 1990, C‑142/87 Belgium v Commission, para. 48

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

Kimman v Commission, para. 76

4.      Infringement of the rules requiring the fixing of objectives for an official at the beginning of each appraisal period is substantial and warrants a declaration that the contested appraisal report is unlawful. Since the fixing of objectives constitutes a fundamental reference point for assessing an official’s performance and drawing up the appraisal report, eliminating the obligation formally to fix objectives for the person concerned when he is assigned to a new post, in discussion with his reporting officer, would have the effect of treating officials differently, as regards the fixing of objectives, depending on the date on which they were assigned to a new post. It is all the more necessary to fix objectives for an official entrusted with new responsibilities in another unit, into which he must integrate himself as quickly as possible.

(see paras 45, 52)

See:

30 September 2009, T‑193/08 P Skareby v Commission, paras 71 to 75

13 December 2007, F‑42/06 Sundholm v Commission, paras 39-41; 10 November 2009, F‑71/08 N v Parliament, paras 54-60; 12 May 2011, F‑66/10 AQ v Commission, paras 68, 83 and 84