JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)
29 September 2009
Case F-114/07
Rainer Wenning
v
European Police Office (Europol)
(Civil service – Europol staff – Renewal of contract of a member of the contract staff of Europol – Article 6 of the Europol Staff Regulations – Assessment report)
Application: brought under Article 40(3) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the establishment of a European Police Office (Europol Convention) and Article 93(1) of the Europol Staff Regulations, in which Mr Wenning seeks, essentially, the annulment of the decision of Europol of 21 December 2006 not to renew his contract, the annulment of the assessment report drawn up for the period from January to September 2006 and an order that Europol pay damages in reparation of the material and non-material loss allegedly suffered.
Held: The action is dismissed. Each party is ordered to bear its own costs.
Summary
1. Officials – Europol staff – Assessment report – Drawing up – Guidelines for the assessment of Europol staff
(Europol Staff Regulations, Arts 6 and 28)
2. Officials – Europol staff – Assessment report – Drawing up – No mandatory time-limit
(Europol Staff Regulations, Arts 6 and 28)
3. Officials – Reports procedure – Assessment report
4. Officials – Reports procedure – Assessment report – Drawing up
5. Officials – Reports procedure – Assessment report – Change of assessment in relation to the previous report
6. Officials – Reports procedure – Assessment report – Judicial review
(Europol Staff Regulations, Arts 6 and 28)
7. Officials – Reports procedure – Assessment report – Descriptive comments must be consistent with marks awarded
8. Officials – Europol staff – Recruitment – Non‑renewal of a fixed-term contract
(Europol Staff Regulations, Arts 6 and 94(1)(a))
1. Breaches of procedural rules, such as the rules imposed by the Guidelines concerning the Staff Development and Review Process adopted by Europol, constitute substantial irregularities of such a kind as to render an assessment report invalid if the applicant can show that in the absence of those irregularities the content of the report might have been different.
(see paras 97, 102)
See:
T-212/97 Hubert v Commission [1999] ECR-SC I‑A‑41 and II‑185, para. 53
F‑34/07 Skareby v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 40, on appeal before the Court of First Instance, Case T‑91/09 P
2. As regards the drawing up of assessment reports for Europol staff, neither the Europol Staff Regulations nor the Guidelines concerning the Staff Development and Review Process lay down an exact date for the completion of assessment reports. Article 28 of the Staff Regulations provides only that an assessment report is to be drawn up at least once a year. Although the administration has an overriding duty to ensure that staff reports are drawn up periodically on the dates laid down by the Staff Regulations and that they are drawn up in a proper form, both for reasons of sound administration and in order to safeguard the interests of officials, the administration has a reasonable period in which to draw up assessment reports in the absence of rules making the conduct of the assessment procedure subject to specific time-limits. Moreover, no provision of the Staff Regulations or the Guidelines prohibits a requirement that an objective be met before the end of the assessment period. On the contrary, the Guidelines, which provide that objectives should be time-related, do not require that the deadline should correspond to the end of the assessment period.
(see paras 98-99)
See:
T-193/03 Piro v Commission [2005] ECR-SC I‑A‑121 and II‑547, paras 76 to 78
3. When drawing up an assessment report, the assessor is to carry out the assessment in close association with the countersigning manager, who has the discretion, following a dialogue requested by the official assessed, either to amend or to confirm the report.
(see para. 100)
See:
T-157/04 De Bry v Commission [2005] ECR-SC I‑A‑199 and II‑901, para. 44
4. The very purpose of the reports procedure is to review the work and abilities of the official concerned at each predetermined due date. Since the assessor’s judgment relating to the reference period is drawn up following a procedure involving the participation of both parties, the official concerned cannot rely, subsequently, on the absence of intermediate criticisms during the reference period. It cannot therefore be required that the value-judgments made by line managers in the course of the consultation held under the reports procedure in respect of a given period be discussed beforehand between the official assessed and his superiors or form the subject of a prior written warning during the reference period since they are the subject of a genuine exchange of views during the reports procedure.
(see para. 104)
See:
C-344/05 P Commission v De Bry [2006] ECR I‑10915, paras 37-45
T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission [2005] ECR-SC I‑A‑411 and II‑1865, para. 142
5. When an assessment report is drawn up, the duty to state reasons for any change in relation to the previous staff report is intended to enable the official to know why the analytical assessments have changed, to verify the factors relied upon and hence to submit his observations on the statement of reasons in the context of his right to be heard; the periodic report is vitiated by failure to observe an essential procedural requirement if the failure to state reasons has infringed the official’s right to be heard.
(see para. 108)
See:
T-1/91 Della Pietra v Commission [1992] ECR II‑2145, para. 30; Hubert v Commission, para. 79; T-50/04 Micha v Commission [2005] ECR-SC I‑A‑339 and II‑1499, para. 36
6. Assessors enjoy a very wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the Community judicature of the content of staff 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 Community judicature 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.
(see paras 111, 117)
See:
T-53/99 Progoulis v Commission [1999] ECR-SC I‑A‑255 and II‑1249, paras 27 and 29; T-187/01 Mellone v Commission [2002] ECR-SC I‑A‑81 and II‑389, para. 51; T-96/04 Cwik v Commission [2005] ECR-SC I‑A‑343 and II‑1523, para. 41
F‑42/05 Rossi Ferreras v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 33
7. The purpose of the descriptive comments in an assessment report is to justify the analytical assessments made in the report. Those comments serve as the basis for establishing the assessment and enable the official to understand the mark awarded. Consequently, having regard to their dominant role in the drawing up of an assessment report, the comments must be consistent with the marks awarded, to such an extent that the marking must be considered to be the quantified or analytical transcription of those comments. In view of the very wide discretion which assessors are recognised as having when making judgments in relation to the work of persons upon whom they must report, a possible inconsistency in a staff report nevertheless cannot justify the annulment of that report unless the inconsistency is manifest.
(see para. 132)
See:
T-96/04 Cwik v Commission, para. 80
8. The administration is not, in principle, required to state reasons for a measure by which it decides not to renew a fixed-term contract of employment when it expires. Each of the contracting parties must expect, from the start of their contractual relationship, that the other party will make use of his right to rely, before the date of the expiry of the contract, on the terms of that contract as they were agreed, that is to say, on the fact that the contract will end on the date stated therein. In the absence of any right to the renewal of a fixed-term contract, it appears that it should not be necessary for the administration to state reasons for its adherence to the terms of the contract as regards the date initially fixed for its expiry.
However, by the decision adopted by its Director on 8 December 2006 concerning the implementation of Article 6 of the Europol Staff Regulations, which contains provisions on the renewal of contracts with Europol, Europol introduced a special system designed to ensure transparency in the procedures for renewing contracts. By the introduction of that special system, Europol specified the criteria it intended to apply when exercising its discretion as regards the renewal or non-renewal of contracts of employment. This resulted in a voluntary curb on Europol’s discretion, given that it was incumbent on Europol to comply with Guidelines which it had imposed on itself.
It follows that a member of the Europol staff on a fixed-term contract is entitled to expect Europol to examine carefully and objectively whether he fulfils the conditions required to have his contract renewed. If renewal of his contract is refused, he has a legitimate interest in being given a statement of reasons reflecting such careful and objective consideration.
(see paras 142-147)
See:
T-143/03 Smit v Europol [2005] ECR-SC I‑A‑39 and II‑171, paras 26 to 28, 30 and 32; T-258/03 Mausolf v Europol [2005] ECR-SC I‑A‑45 and II‑189, paras 21 to 23, 25 and 27