JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
18 September 2015
Case T‑653/13 P
Kari Wahlström
v
European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)
(Appeal — Civil service — Temporary staff — Reports procedure — Career development report — 2010 appraisal procedure — Annual dialogue with the reporting officer — Fixing of objectives)
Appeal: against the judgment of the European Union Civil Service Tribunal of 9 October 2013 in Wahlström v Frontex (F‑116/12, ECR-SC, EU:F:2013:143), seeking to have that judgment set aside.
Held: The judgment of the European Civil Service Tribunal (Third Chamber) of 9 October 2013 in Wahlström v Frontex (F‑116/12, ECR-SC, EU:F:2013:143), is set aside insofar as the Civil Service Tribunal rejected the second and third limbs of the second ground of annulment relied on at first instance and the claim for damages. The appeal is dismissed as to the remainder. The 2010 appraisal report of Mr Kari Wahlström is annulled. The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) is ordered to pay compensation of EUR 2 000 to Mr Wahlström. Frontex is ordered to bear the entirety of the costs relating to the present proceedings as well as those before the Civil Service Tribunal.
Summary
1. Officials — Reports procedure — Appraisal report — Drawing up — Report vitiated by procedural irregularity — Consequences
(Staff Regulations, Art. 43)
2. Officials — Reports procedure — Appraisal Report — Drawing up — Breach of the obligation to hold a dialogue between the reporting officer and the staff member under appraisal — Substantial irregularity
(Staff Regulations, Art. 43)
3. Officials — Reports procedure — Appraisal Report — Obligation to fix objectives to be achieved — Annulment of the report in the event of non-compliance
(Staff Regulations, Art. 43)
4. Appeal — Grounds — Review by the General Court of the Civil Service Tribunal’s legal characterisation of the facts — Lawfulness
(Rules of Procedure of the General Court, Art. 48(2))
5. Officials — Reports procedure — Appraisal Report — Guidelines for reporting officers and members of staff on staff appraisal procedures — Legal effects
6. Officials — Reports procedure — Appraisal Report — Drawing up — Formal fixing of objectives upon assignment to a new post — Scope
(Staff Regulations, Art. 43)
7. Actions brought by officials — Actions for damages — Annulment of the contested act not providing appropriate compensation for non-material damage — Appraisal report of a member of staff who has ceased activities vitiated by irregularities
(Staff Regulations, Art. 91)
1. See the text of the decision.
(see para. 21)
See:
Judgments of 29 October 1980 in van Landewyck and Others v Commission, 209/78 to 215/78 and 218/78, EU:C:1980:248, para. 47, and 21 March 1990 in Belgium v Commission, C‑142/87, ECR, EU:C:1990:125, para. 48
Judgment of 23 April 2002 in Campolargo v Commission, T‑372/00, ECR-SC, EU:T:2002:103, para. 39
2. In the appraisal process, it is essential to hold a dialogue of quality, which is the key to the process. This presupposes direct contact between the staff member under appraisal and the reporting officer, as only contact of that kind can promote a frank and detailed discussion enabling the interested parties, first, to gauge accurately the nature of the reasons for and the degree of any differences in opinion between them, and, second, to arrive at a better mutual understanding. Without a direct exchange between the reporting officer and the staff member under appraisal, the staff report cannot entirely fulfil its function as a human resources management tool and as an instrument to accompany the professional development of the official concerned.
In those circumstances, a decision not to renew the contract of a member of the temporary staff, taken prior to the adoption of the appraisal report, cannot deprive the dialogue between the member of the temporary staff and the reporting officer of its usefulness as part of the appraisal procedure, which must enable the interested parties, firstly, to gauge accurately the nature of the reasons for and the degree of any differences in opinion between them and, second, to arrive at a better mutual understanding.
Since an appraisal report is based on subjective value-judgments which are therefore, by their very nature, liable to be changed, it must be held that, if the staff member had been heard before the report had been drawn up, as part of a dialogue, he would have been able to make his views known, and thus perhaps alter the assessments set out in that report. Consequently, a failure to hold the annual dialogue between an staff member and his reporting officer, as part of the appraisal procedure, constitutes a substantial irregularity.
(see paras 25-28, 34)
See:
Judgments of 30 September 2004 in Ferrer de Moncada v Commission, T‑16/03, ECR-SC, EU:T:2004:283, para. 40, and 25 October 2007 in Lo Giudice v Commission, T‑27/05, ECR-SC, EU:T:2007:321, paras 48 and 49
3. See the text of the decision.
(see para. 48)
4. See the text of the decision.
(see para. 53)
See:
Judgment of 13 October 2008, Neophytou v Commission, T‑43/07 P, ECR-SC, EU:T:2008:432, para. 71
5. While the guidelines for reporting officers and members of staff on staff appraisal procedures cannot be regarded as rules of law which the administration is required in all cases to comply with, they nevertheless lay down rules of conduct indicating the approach to be adopted from which the administration cannot depart, in an individual case, without giving reasons which are compatible with the principle of equal treatment. By adopting such rules and announcing by publishing them that it will apply them to the cases to which they relate, the institution in question imposes a limit on the exercise of its own discretion and cannot depart from those rules, without being found, in some circumstances, to be in breach of general principles of law, such as the principles of equal treatment or of the protection of legitimate expectations. It is not therefore inconceivable that, in certain circumstances and depending on their content, such rules of conduct of general application may produce legal effects.
(see para. 61)
See:
Judgment of 28 June 2005 in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paras 209 to 211
Judgment of 9 July 1997 in Monaco v Parliament, T‑92/96, ECR-SC, EU:T:1997:105, para. 46
6. Since the fixing of objectives constitutes a fundamental reference point for assessing the performance of a member of staff and drawing up the appraisal report, eliminating the obligation formally to fix objectives for a member of staff when he is assigned to a new post, in the course of a dialogue with his reporting officer, would have the effect of treating staff differently, as regards the fixing of objectives, depending on the date on which they were assigned to a new post.
‘Formally fixing objectives’ means fixing objectives in the course of a dialogue with the reporting officer. If it were otherwise, it would lead to staff being treated differently, with regard to the fixing of objectives, depending on the date on which they were assigned to a new post, in that a member of staff who is assigned to a new post at the beginning of the year might have new objectives assigned to him in the course of the annual dialogue with the reporting officer, whereas a member of staff reassigned during the year in question would be deprived of such a dialogue.
(see paras 62, 66)
7. Where claims for damages are based on the illegality of the act which is annulled, the annulment ordered by the Court constitutes in itself appropriate and, in principle, sufficient compensation for all non-material damage which the applicant may have suffered.
Nonetheless, the annulment of an act cannot constitute in itself appropriate and sufficient compensation for all non-material damage caused by the annulled act when it has no meaningful effect. This is the case where, in complying with a judgment annulling an appraisal report, it is impossible to assign objectives retrospectively to a member of staff who has ceased his activities, or to hold a formal discussion concerning such objectives. Furthermore, it is impossible to carry out a new appraisal of the member of staff’s performance in the context of a new appraisal report and having regard to objectives fixed at the outset. A doubt will therefore continue to exist concerning how the interested party might have performed if objectives had been fixed initially. That doubt constitutes damage.
Accordingly, the annulment of the appraisal report cannot, in itself, constitute appropriate and sufficient compensation.
(see paras 82-85)
See:
Judgment of 28 February 2008 in Neirinck v Commission, C‑17/07 P, ECR-SC, EU:C:2008:134, para. 98
Judgments of 11 September 2002 in Willeme v Commission, T‑89/01, ECR-SC, EU:T:2002:212, para. 97, and 30 September 2009 in Skareby v Commission, T‑193/08 P, ECR-SC, EU:T:2009:377, para. 99