JUDGMENT OF THE COURT OF FIRST INSTANCE (single Judge)

9 December 1999 (1)

(Staff case — Staff report — Description of duties)

In Case T-53/99,

Nicolaos Progoulis, an official of the Commission of the European Communities,represented by Vassilios Akritidis, of the Athens Bar, and Jonathan Branton, Solicitor,with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10Rue Mathias Hardt,

applicant,

v

Commission of the European Communities, represented by Julian Currall, of its LegalService, acting as Agent, with an address for service in Luxembourg at the office ofCarlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the decision of the appointing authority of 17November 1998 rejecting the applicant's complaint of 9 June 1998 in which theapplicant sought the amendment of his staff report for the period 1 July 1995 to 30

June 1997, an order requiring the Commission to rectify the assessments of theapplicant and to amend the description of duties given at paragraph 3(b) of the reportas indicated by the applicant, and an award of compensation for non-material damagewhich he alleges he has sustained and which he assesses provisionally at BEF 100 000,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (single Judge),

J. Azizi, sitting as a single Judge,

Registrar: B. Pastor, Principal Administrator,

having regard to the written procedure and further to the hearing on 29 October 1999,

gives the following

Judgment

I — Facts

1.

    Since 1993 the applicant has been a category B official with Unit E.1 of Directorate-General XI, Environment, Nuclear Safety and Civil Protection (hereinafter 'DG XI‘).In 1993 he was promoted to grade B 2.

2.

    In the context of the implementation of Council Directive 84/360/EEC of 28 June 1984on the combating of air pollution from industrial plants (OJ 1984 L 188, p. 20), thedefendant initiated, under the responsibility of Directorate-General XII, Research andDevelopment Policy, a programme called the Steel Environment Programme(hereinafter 'the SEP‘). It is apparent from the file that that programme consistedessentially in compiling an inventory of polluting emissions produced in the EuropeanUnion by certain sectors of the steel industry, so that techniques for reducing thoseemissions might be identified and evaluated. The work carried out under theprogramme culminated in a conference in January 1996 and the publication inNovember 1996 of a report entitled 'Coordinated Steel Environment Programme‘ . In1996 DG XI expressed an interest in extending and assuming responsibility for theprogramme, in particular with a view to preparing an update of the inventory ofpolluting emissions for the year 1997. For budgetary reasons, that initiative waspostponed.

3.

    On 2 October 1997, following discussions he had on 16 September 1997 and 1 October1997 with his assessor, the Head of Unit E.1 in DG XI, the applicant received his staffreport for the period 1 July 1995 to 30 June 1997. The report included, at point 3(b),the following description of the applicant's duties for the reference period:

'Mr Progoulis is responsible for the management of the budget of the Unit. Thisincludes the elaboration and preparation of contracts for call for tenders as well as thewhole follow-up, preparation of payments. Furthermore, he acts as liaison officer fortraining.‘

4.

    By note dated 2 October 1997, the applicant informed his superiors that he could notaccept his staff report.

5.

    Following a discussion with the appeal assessor on 6 October 1997, the latter informedthe applicant, on 10 October 1997, that she had decided to supplement point 3(b) ofthe staff report by inserting the following description in an annex to the report: 'MrProgoulis followed also a study ”Steel Environment Programme”, an inventory projectled by DG XII and completed by two consultants mid-1996.‘ Appended to thatdescription is a list of the people responsible for the study, among whom the applicantdoes not feature.

6.

    On 23 October 1997 the applicant referred the matter to the Joint Committee on StaffReports (hereinafter 'the Committee‘) pursuant to Article 7 of the ImplementingProvisions. He requested, first, that the description of his duties be supplemented toinclude a reference not only to his having followed the SEP, but also to his havingcampaigned for that programme to be continued after 1996, when it was due to expire.Secondly, he requested that mention be made of his having participated in a studyentitled 'The Best Available Technologies for the Prevention of Atmospheric Pollutionin the Foundries of Ferrous Metals‘ (hereinafter 'the BAT study‘). He also asked forhis assessments to be reconsidered.

7.

    In its opinion of 2 March 1998, the Committee granted his request in so far as itrelated to the description of his duties. It took the view that 'paragraph 3(b) of hisstaff report should be expanded in the manner suggested by Mr Progoulis in hisobservations‘. The remainder of the request was dismissed.

8.

    Following that opinion, the appeal assessor informed the applicant on 20 March 1998that the wording of point 3(b) of the staff report had been amended as follows:

'Mr Progoulis is responsible for the management of the budget of the Unit. Thisincludes the elaboration and preparation of calls for tender and contract documentsas well as their follow-up and preparation of payments. Furthermore he acts as liaison

officer for training. Between mid-1996 and mid-1997 Mr Progoulis acted as technicalassistant for the matters related to the Steel Environment Programme.‘

9.

    On 9 June 1998 the applicant lodged a complaint pursuant to Article 90 of the StaffRegulations. In that complaint, he reiterated his request for his assessments to bereconsidered and requested that the description of his duties be supplemented by twoitems, namely, a mention that he campaigned for the extension of the SEP, and astatement that he was involved as a technical assistant in dealing with questionsconcerning foundries.

10.

    On 16 September 1998 an inter-service meeting was held at which the applicant, hislegal representative, members of the Personnel Committee and representatives of UnitE.1 of DG XI were present.

11.

    On 1 October 1998 the Committee gave its opinion on the applicant's complaint. TheCommittee confirmed its opinion of 2 March 1998 as regards amendment of point 3(b)of the staff report. As to the request for re-assessment, the Committee stated that itcould not substitute its assessment for that of the assessor or the appeal assessor.

12.

    By decision of 17 November 1998, notified to the applicant on 2 December 1998, theappointing authority rejected the complaint in so far as it sought re-assessment of theapplicant's grades. As regards the description of the applicant's duties, it was decidedthat the following sentence should be added to point 3(b) of the staff report: 'He wasalso following the study ”Steel and Environment” and coordinating DG XI's input intothis project.‘ After the various amendments, the description of duties contained in theapplicant's staff report thus reads as follows:

'Mr Progoulis is responsible for the management of the budget of the unit. Thisincludes the elaboration and preparation of calls for tender and contract documentsas well as their follow-up and preparation of payments. Furthermore he acts as liaisonofficer for training. Between mid-1996 and mid-1997 Mr Progoulis acted as technicalassistant for the matters related to the Steel Environment Programme. He was alsofollowing the study ”Steel and Environment” and coordinating DG XI's input into thisproject.‘

II — Procedure and forms of order sought

13.

    By application lodged on 19 February 1999 the applicant brought the present action.Pursuant to Articles 14(2) and 51 of the Rules of Procedure the Third Chamberdelegated the case to Judge J. Azizi, sitting as a single Judge. The Court decided toopen the oral procedure without any preparatory measures of inquiry. However, the

Court requested the defendant to answer various questions and to produce certaindocuments, which it did in its rejoinder. The parties presented oral arguments andreplied to the Court's oral questions at the hearing on 29 October 1999.

14.

    The applicant claims that the Court of First Instance should:

(i)    annul the version of his staff report decided upon by the appointing authorityon 17 November 1998;

(ii)    order the Commission to complete the description of duties in point 3(b) of thereport as follows:

    '(a)    management of the budget of Unit XI-E-1;

    (b)    liaison officer for training;

    (c)    from the end of 1994 to mid-1996 he followed the Steel/EnvironmentProgramme — phase I 1991-1996 — led and finished by DG XII, he alsofollowed the above programme for the same period on DG XI's behalfassisting his direct superior officer for that programme;

    (d)    from 1996, as technical assistant, he campaigned for the continuation ofthe Steel/Environment Programme (as phase II) to be led by DG XI andrun a new version for the 1997 emission inventory, as was intended on 18January 1996 during the seventh and final coordinating Committeemeeting, ECSC, phase I already led and finished by DG XII. The startof the continuation of that program was postponed for after 2001;

    (e)    from July 1996 until mid-1997 involved in the study ”The Best AvailableTechnologies for the Prevention of the Atmospheric Pollution in theFoundries of Ferrous Metals”;

    (f)    technical assistance for the questions relating to steel industry and thefoundries as stated in his unit's organigramme established by the assessorin March/April 1997‘;

(iii)    order the Commission to re-assess the applicant's grading in the light of thedescription of duties set out above;

(iv)    award him compensation for non-material damage suffered, estimatedprovisionally at BEF 100 000;

(v)    order the Commission to pay the costs.

15.

    During the hearing, the applicant withdrew the heads of claim mentioned above under(ii) and (iii).

16.

    The Commission contends that the Court of First Instance should:

(i)    dismiss the application;

(ii)    make an appropriate order as to costs.

III — Admissibility

17.

    Without raising a formal objection as to admissibility, the defendant expresses doubtas to the applicant's legal interest in bringing proceedings. The defendant maintainsthat the applicant obtained full satisfaction from the amendments made to his staffreport during the administrative procedure.

18.

    The applicant denies that he obtained satisfaction from the amendments made to hisstaff report during the administrative procedure.

19.

    The Court considers that, in the present case, the question whether the applicantobtained full satisfaction from the amendments made to his staff report during theadministrative procedure concerns the substance and not the admissibility of theaction. Therefore, the doubts expressed by the defendant as to the admissibility of theaction for annulment must be rejected.

I V — The substance of the action for annulment

Arguments of the parties

20.

    According to the applicant, by adopting the staff report in its amended version of 17November 1998, the defendant infringed the principles of legal certainty, good faithand the protection of legitimate expectations. It also made a manifest error ofassessment of the facts and infringed Article 1 of the Implementing Provisions andArticle 3(c)(ii) and (iii) of the Guide to Staff Reports.

21.

    The applicant maintains that the defendant simply copied earlier staff reports for theperiods 1991 to 1993 and 1993 to 1995, merely downgrading the assessments. Thedefendant thus failed to comply with point 3(c)(iii) of the Guide to Staff Reports,

which provides that a 'staff report should not be carried over more than once‘.During the hearing, the applicant specified that this claim concerned only the analyticalassessment in the staff report and not the qualitative assessment therein.

22.

    In addition, according to the applicant, point 3(b) of the staff report, which containsthe description of the duties of the official assessed, remained incompletenotwithstanding the various amendments made to it. The applicant has identified threeduties which he says he performed during the assessment period but which do notappear in the staff report.

23.

    First of all, after the end of the SEP in 1996, he campaigned for the extension of thatprogramme under the responsibility of DG XI. The fact that that initiative waspostponed does not make the applicant's contribution any less significant.

24.

    Secondly, the applicant says that he was involved in the BAT study which was carriedout between December 1994 and July 1997 by the Comité des AssociationsEuropéennes de Fonderies (CAEF) on the basis of a contract signed with the DirectorGeneral of DG XI. The applicant asserted in his reply and further explained duringthe oral hearing that there was no link between the SEP and the BAT study.Therefore, the BAT study could not be subsumed within the issue of the applicant'sparticipation in the SEP but should rather have been mentioned separately.

25.

    Thirdly, the applicant maintains that, independently of his involvement in the SEP, heacted as a technical assistant in respect of questions related to the steel industry andfoundries. Concerning the substance of this task the applicant explains in his reply thathis unit was consulted for its opinion on the environmental implications of investmentprojects in the steel sector. In his view, it is apparent from the various consultationnotes drafted by the applicant and signed by his Head of Unit that this task wascarried out by the applicant in person, quite independently of his participation in theSEP, which is why the SEP was never mentioned in those notes.

26.

    The defendant refutes the applicant's pleas and arguments.

Findings of the Court

Introduction

27.

    Value judgments relating to officials in staff reports are not subject to review by theCourt except as regards any irregularities of form or manifest errors of fact vitiatingthe assessments made by the administration or any misuse of power (seeCase T-326/94 Dimitriadis v Court of Auditors [1996] ECR-SC II-613, paragraph 104).

28.

    In the present case, the applicant advances in substance two pleas alleging, firstly, thatthe appointing authority merely copied earlier staff reports with regard to theapplicant's grading and, secondly, that the description of his duties in the staff reportremained incomplete.

First plea

29.

    With respect to the first plea, the Court observes that the assessment made by thehierarchical superiors of the applicant, in their capacity as assessors, is a matter fortheir personal judgment alone, and that it is not for the Court to substitute its ownassessment for theirs (see Case T-33/90 von Bonkewitz-Lindner v Parliament [1991]ECR II-1251, paragraph 62). The fact that, compared with previous periods, theassessor has come to a similar assessment of the applicant, merely lowering his grades,does not necessarily represent a manifest error of fact or misuse of power. In anyevent, there is no question of such a serious error having occurred in the specificcircumstances of this case. Indeed, as the two parties confirmed during the hearing, themethod of assessment had been altered since those previous periods and the tasks ofthe applicant, as described in those reports, changed in that time. In view of thosecircumstances, the applicant is also wrong in his assertion (see above, paragraph 21)that the defendant acted contrary to the Guide to Staff Reports by carrying over aprevious staff report for a second time.

30.

    The first plea must therefore be rejected as unfounded.

Second plea

31.

    The second plea is presented in three parts. The Court considers it appropriate toexamine the first and the third parts together.

— The applicant's involvement in the moves to extend the SEP after 1996 (first part)and the technical assistance in respect of questions relating to the steel industry andfoundries (third part)

32.

    The Guide to Staff Reports, which serves within the Commission as a guide forassessors and from which, as the principle of equality of treatment requires, theadministration may not depart without specifying the reasons for doing so(Case T-63/89 Latham v Commission [1991] ECR II-19, paragraph 25), includes thefollowing guidance on how the official's duties are to be described in the staff report:

'Description of duties assigned to and performed by the person assessed, including anycarried out in other departments, as identified during the dialogue‘ (paragraph3(c)(ii)).

33.

    The Court observes in that respect that every official is entitled to have included in hisstaff report an accurate description of the main duties carried out by him during therelevant period (see, to that effect, von Bonkewitz-Lindner, cited above at paragraph29, paragraph 44). It is necessary to examine whether the criticisms made by theapplicant in these two parts of the plea reveal a manifest error of fact vitiating theassessment made by the administration.

34.

    With respect to the first part, concerning the applicant's involvement in the moves toextend the SEP after 1996 under the responsibility of DG XI, it should first be notedthat the description of the applicant's duties comprises the following sentence: 'Hewas also following the study ”Steel and Environment” and coordinating DG XI's inputinto this project‘. Also, it is not denied that in 1996 DG XI expressed its interest inprolonging the programme and itself assuming responsibility for it and, moreover, thatthe applicant was coordinating these efforts for DG XI. Furthermore, the applicant hasnot contradicted the defendant's affirmation that this programme was not one of themain duties of the applicant even though he devoted a substantial amount of time toit.

35.

    As to the third part, concerning the applicant's ongoing activities as a technicalassistant for questions relating to the steel industry and foundries, the Court observesthat, as was confirmed by the applicant during the hearing, those activities related toenvironmental questions in the steel and foundries sectors. Therefore, even if theywere not strictly part of the SEP, the fact that the appointing authority subsumed theseactivities within the 'matters related to the Steel Environment Programme‘ did notamount to a manifest error of fact. Furthermore, the only evidence that the applicanthas submitted to the Court consists of three short consultation notes allegedlyprepared by him but signed by his superiors. He has, on the contrary, neither provennor advanced any consistent argument to the effect that this specific part of hisactivities was one of his main duties during the relevant period and had therefore tobe mentioned explicitly and separately. In particular, the Court considers that the factthat this activity is stated in his job description in the unit's organigramme does notnecessarily mean that this element should be included in his staff report. In fact, itcould well be that an element specifically noted in the unit's organigramme for anofficial does not constitute a main duty of that official during a particular period. Thislatter argument must therefore also be rejected.

36.

    Finally, with respect to these two parts of the second plea, the Court observes that theapplicant has not put forward any argument to the effect that the absence of an

explicit and separate mention of those two elements would have vitiated theassessment made by the administration.

37.

    In those circumstances, the Court considers that the appointing authority did not makea manifest error of fact in not mentioning those two elements explicitly and separatelyin the description of duties in the applicant's staff report.

38.

    The first and third parts of the second plea must therefore be rejected as unfounded.

— The applicant's involvement in the BAT study (second part)

39.

    The Court observes that the rule requiring consistency between the complaint and theapplication makes it a condition of admissibility that the claim put forward before theCommunity judicature already have been raised in the administrative complaint, sothat the appointing authority was in a position to know in sufficient detail the criticismswhich the person concerned was making of the contested decision (see, in essence,Case T-58/91 Booss and Fischer v Commission [1993] ECR II-147, paragraph 83, andJoined Cases T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions[1997] ECR-SC II-155, paragraph 60). Although the question of the admissibility of thesecond part of the second plea was not raised by the defendant at the appropriatetime, it is for the Court to raise the matter of its own motion under the Rules ofProcedure.

40.

    In that regard, the Court considers that, on the basis of the complaint lodged by theapplicant on 9 June 1998, the appointing authority was not in a position, evenendeavouring to interpret the complaint with an open mind, to know in sufficient detailthe criticism which the applicant makes in this part of the second plea of thedescription of his duties in the contested staff report, namely that it did not mentionhis involvement in the BAT study. In fact, first of all, the complaint did not mentionthe BAT study at all. Furthermore, even if the complaint refers cursorily to the factthat the applicant was involved 'in the ferro-metal foundries from September 1996until mid-1997‘, that statement did not give the appointing authority sufficientinformation about the apparent link between this task and the BAT study on the onehand and the alleged absence of any link between that study and the SEP on the otherhand. Therefore, the appointing authority was not in a position to know that, apartfrom his involvement in 'matters related to the Steel Environment Programme‘, aswas stated in the description of the applicant's duties according to the opinion of theappeal assessor (see above, paragraph 8), the applicant also asked for the introductionof a specific statement about his alleged involvement in the BAT study.

41.

    Accordingly, the Court considers that this part of the plea is inadmissible. In any event,

it was only during the hearing that the applicant explained the reasons for which,according to him, there was, in fact, no link between the SEP and the BAT study.

Conclusion

42.

    In those circumstances, the application for annulment must be dismissed. Likewise,since the applicant has not succeeded in proving that the defendant's action was in anyway unlawful, the claim for compensation must be dismissed.

Costs

43.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be orderedto pay the costs. However, Article 88 of those Rules provides that institutions are tobear their own costs in proceedings brought by servants of the Communities. In thepresent case, therefore, the parties must bear their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (single Judge)

hereby:

1.    Dismisses the action as inadmissible as far as the second part of the secondplea is concerned;

2.    Dismisses the remainder of the action for annulment as unfounded;

3.    Dismisses the action for compensation as unfounded;

4.    Orders the parties to bear their own costs.

Delivered in open court in Luxembourg on 9 December 1999.

H. Jung

J. Azizi

Registrar

Judge

1: Language of the case: English