JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

19 November 2009

Case T-49/08 P

Christos Michail

v

Commission of the European Communities

(Appeal – Cross-appeal – Civil service – Officials – Reports procedure – Career development report – 2003 assessment period – Award of a merit mark in the absence of tasks to be carried out – Non-material loss – Duty of the Civil Service Tribunal to state reasons)

Appeal: against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 22 November 2007 in Case F-76/05 Michail v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000, seeking the setting aside of that judgment. Cross-appeal lodged by the Commission of the European Communities against the abovementioned judgment.

Held: The judgment of the European Union Civil Service Tribunal (Second Chamber) of 22 November 2007 in Case F-76/05 Michail v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000, is set aside. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

1.      Appeal – Cross-appeal – Time-limit for lodging

(Rules of Procedure of the General Court, Art. 141(1))

2.      Officials – Reports procedure – Career development report – Drawing up

(Staff Regulations, Arts 43 and 110)

3.      Officials – Principles – Administration's duty to have regard for the interests of officials – Scope

(Staff Regulations, Arts 43 and 110)

4.      Officials – Actions – Actions for damages – Annulment of the illegal act in dispute – Non-material damage which is separable from the unlawfulness and is incapable of being entirely repaired by that annulment

(Staff Regulations, Art. 91)

1.      The only time-limit to which a cross-appeal is subject is that provided for in Article 141(1) of the Rules of Procedure of the General Court for lodging a response, namely two months after service of the notice of appeal.

(see para. 38)

See: C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, para. 72

2.      The career development report is an essential document in the appraisal of staff employed by the institutions, since it enables an assessment to be made of an official’s ability, efficiency and conduct, in accordance with Article 43 of the Staff Regulations. Such an appraisal does not merely describe the tasks performed during the relevant period, but also includes an assessment of the abilities and personal and social qualities shown by the individual assessed in the conduct of his professional life. The report thus constitutes a value judgement by the immediate superiors of the official being appraised on the manner in which he has performed the duties conferred on him and on his conduct in the service during the relevant period. In the drawing-up of the report, therefore, the award of a merit mark based on an assessment of the ability, efficiency and conduct in the service of the official in question, in accordance with Article 43 of the Staff Regulations and Article 1(2) of the general implementing provisions for Article 43 of the Staff Regulations, adopted by the Commission, presupposes that the official was given tasks to be performed during the reference period.

The Commission, like all the Community institutions, has a special obligation of transparency in regard to staff reporting, advancement and promotion of its agents, compliance with which is ensured by means of the formal procedure laid down in Articles 43 and 46 of the Staff Regulations. That procedure requires a career development report to be drawn up at least once every two years as provided for by each institution in accordance with Article 110 of the Staff Regulations. In exceptional circumstances, therefore, where it has been found that the official in question, although in active employment within the meaning of the second paragraph, first sentence, of Article 1(1) of the general implementing provisions for Article 43 of the Staff Regulations, was not, as a result of an internal reorganisation of the administration, entrusted with any duty capable of being assessed during the reference period, the administration must still draw up a report which describes that situation, in order to ensure that it is itself informed of it and that the official concerned has written, formal evidence that the situation existed.

The special obligation of transparency requires that the career development report must be drawn up both for reasons of sound administration and the rationalisation of the services of the Community and in order to safeguard the interests of officials. As an internal document, the primary function of the career development report is to provide the administration with the most detailed possible periodic information on the performance of their duties by officials. In regard to the official in question, the report plays an important role in his career progress, mainly as far as concerns transfer and promotion. It constitutes an indispensable criterion of assessment each time the official’s career is taken into consideration by the administration, and the purpose of drawing it up periodically is to provide an overall view of an official’s career development.

Where, in exceptional circumstances for which the administration alone is responsible, the reporting officers are not able to award a merit mark intended to evaluate an official’s achievements and individual performance in the light of the results to be attained, they must nevertheless take a decision which, in accordance with the administration’s duty to have regard for the interests of its officials, respects the interests of the official in question and, in particular, his entitlement to reasonable career prospects within the Community institutions.

(see paras 57-65)

See: 6/79 and 97/79 Grassi v Council [1980] ECR 2141, para. 20; T‑59/96 Burban v Parliament [1997] ECR-SC I‑A‑109 and II‑331, paras 44 and 73; T‑187/01 Mellone v Commission [2002] ECR-SC I‑A‑81 and II‑389, para. 77; T‑274/04 Rounis v Commission [2005] ECR-SC I‑A‑407 and II‑1849, paras 24 and 42

3.      The duty of the administration to have regard for the interests of its officials reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and civil servants. That balance implies in particular that when the authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned.

In drawing up a career development report, therefore, the reporting officers may consider, in accordance with the duty to have regard for the interests of officials, that the official concerned should be awarded a number of merit points which is appropriate to protect his interests and, in particular, his career development prospects within the Community institutions.

The need to respect the special obligation of transparency means, however, that that decision must be adopted according to the rules of the procedure for the appraisal of officials laid down in Article 43 of the Staff Regulations and by the general implementing provisions adopted for its application in accordance with Article 110 of the Staff Regulations. In cases where the author of a decision has discretion, compliance with the procedural guarantees conferred by the Community legal order is even more fundamentally important.

(see paras 66-68)

See: C-269/90 Technische Universität München [1991] ECR I‑5469, para. 14; T‑346/94 France-aviation v Commission [1995] ECR II‑2841, paras 32 to 34; T‑95/98 Gogos v Commission [2000] ECR-SC I‑A‑51 and II‑219, para. 37; T‑156/05 Lantzoni v Court of Justice [2006] ECR-SC I‑A‑2‑189 and II‑A‑2‑969, para. 88 and the case-law cited therein

4.      While the obligation of the Civil Service Tribunal to give reasons for its decisions does not go so far as to require it to respond in detail to every argument advanced by the parties, particularly where the arguments are not sufficiently clear and precise and are not based on detailed evidence, it does, at the very least, require it to take a view on the heads of claim in the action.

Regarding the response to be given by the Civil Service Tribunal to claims for compensation, while the annulment of an unlawful measure may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, that would not apply where the applicant shows that he has suffered non-material damage which is separable from the unlawfulness which is the basis for the annulment and which is incapable of being entirely repaired by that annulment.

(see paras 87-88)

See: C‑221/97 P Schröder and Others v Commission [1998] ECR I‑8255, para. 24; C‑274/99 P Connolly v Commission [2001] ECR I‑1611, para. 121; C‑197/99 P Belgium v Commission [2003] ECR I‑8461, para. 81; judgment of 25 October 2007 in C-167/06 P Komninou and Others v Commission, not published in the ECR, para. 22; T‑10/02 Girardot v Commission [2006] ECR-SC I‑A‑2‑129 and II‑A‑2‑609, para. 131 and the case-law cited therein