JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

6 October 2009

Case T-102/08 P

Asa Sundholm

v

Commission of the European Communities

(Appeal – Civil service – Officials – Reports – Career development report drawn up in compliance with a judgment of the Tribunal – Appraisal year 2001/2002 – Justified absences – Obligation to state reasons)

Appeal: brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 13 December 2007 in Case F-27/07 Sundholm v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000, seeking to have that judgment set aside.

Held: The judgment of the European Union Civil Service Tribunal (Second Chamber) of 13 December 2007 in Case F-27/07 Sundholm v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000 is set aside. The decision of 2 June 2006 by which the reporting officer on appeal established Ms Asa Sundholm's career development report for the period from 1 July 2001 to 31 December 2002 is annulled. The remainder of the action brought at first instance is dismissed. The Commission of the European Communities is ordered to pay the costs of the procedure before the Civil Service Tribunal and of the present instance.

Summary

1.      Officials – Reports procedure – Career development report – Justified absences

(Staff Regulations, Art. 43)

2.      Officials – Actions – Actions for damages – Annulment of the illegal act in dispute – Whether appropriate reparation for non-material damage

(Staff Regulations, Art. 91)

1.      While an official’s justified absences cannot penalise him in the context of his assessment, his mark for efficiency may be increased to take account of the conditions in which he performed his duties despite having had less actual working time as a result of his absence. However, that factor is not automatically taken into account in the efficiency part of the overall mark, since it is merely an option for those drawing up the career development report, who must consider that possibility where circumstances warrant it.

In circumstances where the reporting officer and the countersigning officer have no reason to think that an official’s justified absences may have had a significant effect on his efficiency during the period covered by a career development report, they cannot be criticised for not having mentioned that fact or taken it into account in the comments on efficiency in the career development report.

(see paras 29, 39-40)

See: T‑277/03 Vlachaki v Commission [2005] ECR-SC I‑A‑57 and II‑243, para. 83 and the case-law cited therein

2.       The annulment of an act of the administration which has been challenged by an official in itself constitutes appropriate and, in principle, sufficient reparation for any non-material harm where that act does not contain an explicitly negative assessment of the applicant’s abilities capable of injuring him.

(see para. 47)

See: T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission [2005] ECR-SC I‑A‑411 and II‑1865, para. 205 and the case-law cited therein