JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
18 March 2015 (*)
(Civil service — Officials — Reports procedure — Appraisal report — General assessment of performance — Consistency)
In Case F‑24/14,
ACTION under Article 270 TFEU,
Tuula Rajala, an official of the Office for Harmonisation in the Internal Market (Trade Marks and Designs), residing in El Campello (Spain), represented by H. Tettenborn, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by M. Paolacci, acting as Agent,
defendant,
THE CIVIL SERVICE TRIBUNAL
(Third Chamber),
composed of S. Van Raepenbusch (Rapporteur), President, H. Kreppel and J. Svenningsen, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written procedure and further to the hearing on 26 November 2014,
gives the following
Judgment
1 By application received at the Tribunal Registry on 21 March 2014, Ms Rajala seeks the annulment of her appraisal report drawn up in respect of the period from 1 October 2011 to 31 December 2012 (‘the 2011/2012 appraisal report’ or ‘the contested report’) and an order that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM or ‘the Office’) pay her a sum of at least EUR 500 by way of damages.
Legal context
2 The legal context consists of Article 43, relating to the appraisal report, of the Staff Regulations of Officials of the European Union, in the version prior to the entry into force of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (‘the Staff Regulations’), and Decision ADM-04-18-Rev, adopted by OHIM on 27 July 2005 and laying down general provisions for implementing Article 43 of the Staff Regulations (‘the GIP’).
Background to the dispute
3 The applicant, an official in the administrator (AD) function group at grade AD 9, has been employed as an examiner at OHIM since 2001. In accordance with Article 131 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), her main task is to examine Community trade mark applications in the intellectual property field, particularly with regard to ‘absolute’ grounds for refusal of registration, as listed in Article 7 of that regulation. She is currently employed at OHIM’s ‘Operations’ department and deals, in particular, with applications for registration filed in Finnish.
4 The applicant was on sick leave from 2 to 9 March 2012 and then worked on a half-time basis, on medical grounds, until and including 1 June 2012.
5 On 22 March 2012, the applicant signed a ‘Development Plan 2011/2012’ (‘the Development Plan’) with her three line managers. The purpose of such a plan, implemented internally, is to restore the professional potential of the member of staff concerned by setting him attainable objectives and providing him with the necessary support. Noting that the applicant’s insufficient level of performance in the previous years called for specific measures to be taken, and in accordance with that plan, her objectives were reduced by 20% in relation to the objectives normally set for an examiner in her department, working on refusal decisions on absolute grounds, and therefore changed, for twelve months of activity, from 118 to 94.4 points, which were then reduced to 79.86 points to take account of her periods of sick leave in 2012. The objective in respect of the entire appraisal period, from 1 October 2011 to 31 December 2012, that is, for fifteen months, was finally set at 103.46 points.
6 The Development Plan stated that ‘if [the applicant met] this adjusted target and all other elements of her performance [were] in line with this[, a general] evaluation at … level 4 ([o]verall, the efficiency, the abilities and the aspects of conduct appraised correspond to the level required for the post occupied) [would be] envisaged’.
7 On 12 March 2013, the applicant was sent an initial version of her 2011/2012 appraisal report. In it, the general assessment was determined at level 6 (‘[t]he efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied. Improvements are needed’). The applicant challenged the content of that report and requested a meeting with her three line managers, who, in essence, did not grant her request for amendment of the report.
8 The applicant brought an action against her 2011/2012 appraisal report before the Joint Evaluation and Promotion Committee (‘the JEPC’), in accordance with the provisions of Article 15 of the GIP of 15 April 2013.
9 The JEPC issued its opinion on 8 May 2013 and unanimously recommended that the general assessment in the 2011/2012 appraisal report be amended and determined at level 5 (‘[t]he efficiency, the abilities and the aspects of conduct appraised are acceptable despite some weak points’).
10 The applicant’s reporting officer nevertheless informed the JEPC that she would not follow its recommendation and explained, in a note of 23 May 2013, copied to the applicant and to the Director of the ‘Operations’ department, the reasons which warranted her maintaining her general assessment of the applicant’s merits at level 6.
11 The applicant read the definitive version of her 2011/2012 appraisal report on 24 May 2013, and submitted a complaint, under Article 90(2) of the Staff Regulations, against that report on 23 August 2013.
12 The 2011/2012 appraisal report states, inter alia, in the ‘Objectives’ section, that 35% of the applicant’s decisions were not in time, which is a notably higher percentage than the service average, which is in the order of 11%.
13 It also states, in the ‘Competencies’ section, that the applicant ‘invests a lot of time in assuring [the] good quality of her decisions … but she is faced with [the] continuous challenge [of meeting] her quantitative and timeliness objectives without sacrificing her personal standard of quality’. That report also states that the applicant ‘takes responsibility for tasks and approaches them proactively[,] but [still] needs to find a balance between the quality of her work and the volume and timeliness’. The applicant must ‘[a]lso … learn to balance … the workload in a way that complex cases/new instructions [do not] severely block output’.
14 The general assessment, at level 6, states that the ‘efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied’ and that ‘[i]mprovements are needed’.
15 The reporting officer’s final assessment also contains the following comments:
‘[The applicant] is very diligent and meticulous when it comes to the quality of her tasks, however at times this precludes her from [meeting] the volume and timeliness standards. [The applicant] … analyses her files [very thoroughly] and develops a strategy before starting to draft[,] thus changes in practice, new rules or tools [unbalance] her and she needs time to adjust her working methods. … [The applicant] should try to be more flexible in adapting her agenda to [the] changing working environment of the [O]ffice and she should also try to … manage herself [better] in order to reach acceptable timeliness standards …’
16 The complaint was rejected by decision of the President of OHIM of 11 December 2013.
Forms of order sought and procedure
17 The applicant claims that the Tribunal should:
– annul the 2011/2012 appraisal report;
– order OHIM to pay her a sum of at least EUR 500 in compensation for the harm suffered;
– order OHIM to pay all the costs.
18 OHIM contends that the Tribunal should:
– dismiss the action in its entirety;
– order the applicant to pay all the costs.
19 By letter of 21 November 2014, five days before the hearing, the applicant submitted additional documents to the registry of the Tribunal, requesting that they be added to her case-file while expressing her wish that they be treated as confidential. Those documents were submitted to OHIM without prejudice to their admissibility, regarding which the Tribunal reserved the right to rule at a later stage. At the hearing, the representative of OHIM contended that the Tribunal should exclude those documents. By the same letter, the applicant requested the Tribunal to order the hearing of witnesses.
Law
1. The claim for annulment
20 The applicant puts forward nine pleas in law in support of her action, alleging: (i) breach of the principle of sound administration; (ii) infringement of the procedural requirements concerning assessment laid down in the GIP; (iii) breach of the general principles laid down in the ‘Reporting officer’s practical dossier’ in force at OHIM (‘the practical dossier’); (iv) error of fact; (v) manifest error of assessment; (vi) insufficient and contradictory statement of reasons; (vii) breach of the principle of protection of legitimate expectations; (viii) breach of fiduciary duty, and lastly (ix) breach of the principle of equal treatment.
The first three pleas in law, alleging infringement of the principle of sound administration, of the procedural requirements and of the general principles laid down in the practical dossier
Arguments of the parties
21 By those first three pleas in law, the applicant claims, in essence, infringement of the rules of procedure governing the appraisal exercise, on the grounds, first, that the reporting officer ignored the recommendations of the JEPC without giving an adequate statement of reasons, in breach of Article 15 of the GIP, and, secondly, that she should have been informed, in accordance with the practical dossier, about her insufficient performance at the mid-year review, to allow her to improve it.
22 OHIM submits that the first three pleas should be rejected.
Findings of the Tribunal
23 Article 15 of the GIP provides that, ‘[i]f the opinion of the [JEPC] proposes an amendment, it is incumbent upon the reporting officer to either draw up a new draft report (total or partial, depending on the recommendation received), or to stand by the report and justify his decision in writing’.
24 At the outset, it should be noted that it is clear from those provisions that the recommendation of the JEPC is purely advisory and not binding on the reporting officer, who may choose not to follow it, provided that he states the reasons for maintaining his initial decision.
25 In the present case, the applicant’s reporting officer explained the reasons for her decision to maintain the general assessment of the applicant at level 6 in her note to the JEPC of 23 May 2013, copied to the applicant.
26 The recommendation of the JEPC stated in particular that a general assessment of level 6, requiring an improvement in the performance of the interested party, was only envisaged, according to an internal memo from the Director of the ‘Operations’ department of 30 January 2012 (‘the internal memo of 30 January 2012’), in the event that there was a drop of more than 20% in the objectives previously achieved, whereas, in the case of the applicant, that drop was only 18.25%. That recommendation also noted that the reporting officer had agreed that it was difficult to implement the instructions resulting from the judgment in Chartered Institute of Patent Attorneys (C‑307/10, EU:C:2012:361, ‘the IP Translator judgment’) but did not take that difficulty clearly into account in the appraisal of the applicant’s performance. The JEPC concluded its opinion by recommending that the general assessment of level 6 be changed to a general assessment of level 5, corresponding to ‘acceptable despite some weak points’.
27 In her letter to the JEPC of 23 May 2013, however, the reporting officer stated that the final assessment was not based solely on the percentage of objectives achieved, but also on timeliness, and that the general assessment of the applicant also took into account her seniority, her high level of expertise and her high grade. The reporting officer thus specified that the internal note of 30 January 2012, referred to in the recommendation, was only indicative and that, despite the adjusted reduction of the applicant’s objectives, she had failed to meet the deadlines, ranking last in that regard in her department. As regards the instructions that were made necessary following the IP Translator judgment, the reporting officer noted that the other examiners in the department, including those who, like the applicant, worked in a less widely used language and those with less experience, had nevertheless managed to comply better with those instructions and to meet their objectives. The reporting officer concluded that a ‘substantial improvement’ was still necessary and that her performance could not be considered ‘acceptable’, which entailed maintaining level 6 for her general assessment. It should be noted that, contrary to what the applicant claims, by providing such complete and detailed reasons the reporting officer observed the requirements of Article 15 of the GIP.
28 The applicant also claims that she should have been informed of her bad results at the mid-year review, particularly with regard to timeliness, and of the possible general assessment of level 6. The applicant refers in that regard to a failure to observe the practical dossier, which provides, inter alia, for ‘regular dialogue between managers and their staff throughout the year’, which ‘increas[es] the level of accountability and help[s] managers and staff members to … improve the performance …’
29 In that regard, in any event, without there being any need to examine at this stage whether the provisions of the practical dossier, relied on by the applicant, are enforceable against OHIM, and as OHIM observes, it must be found that the applicant was perfectly able to access the information on the deadlines to be met in the handling of her cases. The applicant has herself repeatedly acknowledged in her application, moreover, that when a deadline is passed the cases ‘turn[ed] “red”’ in the management software for the registration applications. In those circumstances, the lack of information complained of by the applicant, relying in that regard on the practical dossier, could not have had a decisive impact on the regularity of the appraisal procedure. Therefore, the applicant, who has worked at OHIM for over ten years, cannot seriously maintain that she was not informed of the deadlines to be observed and of the consequences on her appraisal that could result if the deadlines were not met. She cannot therefore properly rely on a procedural defect or lack of information that could have any impact on the level of her performance and, therefore, on the content of the contested appraisal report.
30 Taking all the foregoing into consideration, the first three pleas in law must be rejected in their entirety.
The fourth and fifth pleas in law, alleging error of fact and manifest error of assessment
Arguments of the parties
31 The applicant claims, in essence, that her 2011/2012 appraisal report is vitiated by errors of fact and manifest errors of assessment on seven grounds.
32 First, she claims, no account was taken of the consequences of her health on her performance when her objectives and her general assessment were set.
33 Second, the appraisal of her results did not take into account the complexity of her cases, in particular that she had to work in Finnish and draft decisions based on absolute grounds for refusal, which require a sustained and thorough effort.
34 Third, no proper account was taken in the assessment of her results of all the tasks related to handling the cases and, in particular, of the revision of an internal manual in which she had participated.
35 Fourth, the reporting officer did not take into account the difficulties, acknowledged by OHIM itself, of implementing the new instructions resulting from the IP Translator judgment and their consequences on the applicant’s compliance with the deadlines for handling cases, particularly with regard to cases processed in Finnish.
36 Fifth, the reporting officer could not, without manifest error, appraise her results by comparing them with the results obtained by the other examiners in her department since, taking into consideration the four grounds set out above, they were not in a comparable situation.
37 Sixth, the reporting officer committed a manifest error by not adjusting the level of the general assessment from level 6 to level 5, as recommended by the JEPC.
38 Seventh, and finally, the applicant stated at the hearing that technical failures in the case management software resulted in numerous errors in the calculation and computation of deadlines, so that the appraisal of her results had been distorted.
39 For all of those reasons the appraisal, both quantitative, in terms of decision points obtained and cases handled, and qualitative, in terms of timeliness or appraisal of her competencies and, consequently, the general assessment that result from this are, the applicant claims, manifestly erroneous. Ultimately, the insufficiency of her results is a consequence not so much of her personal abilities, but of external circumstances related, essentially, to the lack of examiners who, like the applicant, work in Finnish, to process in good time all the applications submitted in that language, and to new training procedures that necessitated, inter alia, longer response times than before, so that cases were carried over to 2013 that otherwise could have been processed during the appraisal period at issue.
40 OHIM contends that the fourth and fifth pleas in law should be rejected.
Findings of the Tribunal
41 At the outset, it must be noted that assessors enjoy a very wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the Courts of the European Union 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. Thus, it is not for the Tribunal 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 (judgments in Wenning v Europol, F‑114/07, EU:F:2009:130, paragraph 111 and the case-law cited; Faria v OHIM, F‑7/09, EU:F:2010:9, paragraph 44 and the case-law cited; and CW v Parliament, F‑48/13, EU:F:2014:186, paragraph 70).
42 In that regard, an error may only be said to be manifest where it may easily be detected in the light of the criteria to which the legislature intended the exercise of decision-making powers to be subject (CW v Parliament, EU:F:2014:186, paragraph 72, and the case-law cited).
43 Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of the contested appraisal report, the evidence, which it is for the applicant to adduce, must be sufficient to make the factual assessments used in that report implausible (see, to that effect, judgments in AIUFFASS and AKT v Commission, T‑380/94, EU:T:1996:195, paragraph 59, and BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 221). In other words, the complaint alleging a manifest error of assessment must be rejected if, in spite of the evidence put forward by the applicant, the contested assessment still appears to be plausible (CW v Parliament, EU:F:2014:186, paragraph 73).
44 That is particularly so where the decision at issue is vitiated by errors of assessment which, taken together, are of only minor significance unlikely to have influenced the administration (see, to that effect, judgments in Adia Interim v Commission, T‑19/95, EU:T:1996:59, paragraph 49 ; Belfass v Council, T‑495/04, EU:T:2008:160, paragraph 63; and AJ v Commission, F‑80/10, EU:F:2011:172, paragraph 36).
45 It is in light of these considerations that it is now necessary to examine the complaints made by the applicant in support of the fourth and fifth pleas in law, alleging error of fact and a manifest error of assessment.
– The quantitative appraisal and the number of decision points obtained
46 It is apparent from the contested appraisal report that the applicant, in respect of the appraisal period at issue, received 84.58 points instead of the 103.46 points that she should have obtained in accordance with her development plan and therefore fulfilled only 81.75% of the objectives that had been assigned to her.
47 Whereas the applicant does not contest the number of points obtained, she points out, in the first place, that the overall objective of 103.46 points for the reference period could not be set for her in view of her state of health, which did not allow her, in particular, to do the overtime needed to meet that objective.
48 That argument cannot be accepted, however, since it is clear from the development plan that the objectives set for the applicant were specifically adjusted downwards to account for her sick leave and her work on a half-time basis from March to June 2012, from 94.4 points to 79.86 points for 2012, according to a method of calculation detailed and presented in the development plan itself. Moreover, the applicant did not adduce any evidence that that figure is vitiated by a manifest error in not taking properly into account the reduction in actual hours worked during the period at issue as a result of her state of health, and that, consequently, meeting the objectives would have required her to work overtime in excess of normal working hours. In that regard, the documents that she submitted to the Tribunal some days before the hearing, with regard in particular to the medical certificate drawn up by her general practitioner on 22 September 2014, even if they are admissible, do not provide any new information that could call into question such a conclusion.
49 Nor can the applicant validly contest the relevance of the method of calculation used to arrive at the contested figure. The applicant really cannot seriously claim that, when signing the development plan, she ‘could not foresee that she [would] later suffer from medical problems, which [would] result in absences and finally limited working hours’, since her medical problems and the reduction of her working hours, as stated previously, were referred to in the plan itself.
50 In the second place, the applicant submits that the complexity of her cases, due in particular to the fact that she had to examine absolute grounds for refusal of registration, and that she worked in Finnish and was the only person able to do so for a part of 2012 because of a lack of examiners in that language, largely explains the insufficient number of points obtained, without being capable of calling into question her personal abilities.
51 In that regard, it is appropriate, first, to point out that the assessment of the content and, consequently, of the potential complexity of cases dealing with applications for registration of a Community trade mark, requires technical or scientific expertise which falls within the broad discretion of the administration.
52 Secondly, it is not disputed that the classification of the level of difficulty of tasks related to absolute grounds for refusal, as OHIM contends, is different from that which exists for the tasks related to processing decisions to refuse registration on relative grounds, and therefore the Office takes into account the level of complexity of the cases in the appraisal of the performance of its members of staff. In the absence of elements capable of establishing that the difficulty of the cases that the applicant had to handle during the reference period was manifestly uncommon and required abilities greater than those that the administration is entitled to expect of a member of staff with the grade, seniority and experience of the applicant, a grade AD 9 official working for OHIM since 2001 and dealing since that date, essentially, with decisions refusing registration on absolute grounds in Finnish and English, that plea cannot succeed. Assuming that the applicant had, during the relevant appraisal period, not two, as the Office contends, but eight of the most complex cases to deal with in the department, such a fact, even if established, cannot prove a manifest error in the assessment of her performance, as it is not apparent from the case-file and the applicant, moreover, does not claim that that figure was manifestly greater than the number of difficult cases that an examiner of her level is, in principle, able to deal with in the course of an annual appraisal period.
53 OHIM states, in that regard, that ‘[the applicant] could have in principle achieved her quantitative output target’ considering her high grade, her experience and the fact that nearly 70% of the cases that she dealt with were in Finnish, that is, in her mother tongue, and the remainder in English, and that she did not deal with files in another language. Taking into account the broad discretion enjoyed in this area by the administration and that the objectives set for the applicant were 20% below those normally set for the examiners of her department, the examples of cases relied upon by the applicant are not such as to render implausible the abovementioned assessments as to whether it was possible for the applicant to meet her quantitative efficiency objective.
54 Furthermore, the applicant does not provide any evidence capable of calling into question OHIM’s contention that the complexity of the cases handled was, in any event, taken into account in the appraisal of her results, since reference is made to it in the contested appraisal report, both under the heading ‘Competencies’, where it is stressed in particular that the applicant ‘works independently also on very difficult cases’, and under the heading ‘Conduct in the service’, where it is stated that the applicant ‘does not hesitate to accept difficult files’.
55 Moreover, it is not apparent from the case-file that the fact, assuming it is correct, that the applicant was the only mother tongue Finnish examiner handling applications for registration in that language until March 2012, or the fact, more generally, that there was a lack of examiners in the department capable of working in that language, resulted in an abnormally high setting of the applicant’s objectives by the administration. The development plan setting those objectives was not specifically drawn up until the end of March 2012 and resulted in a quantitative lowering of the expected results. In those circumstances, the applicant cannot validly invoke her ‘special situation’ of being a Finnish language examiner to claim that the appraisal of her performance with regard to the set objectives was manifestly erroneous.
56 In the third place, the applicant considers that her activities relating to handling registration applications have not been properly assessed, particularly with regard to her collaboration in the revision of an internal manual on procedures to be followed. However, contrary to what the applicant claims, the work she carried out in updating that manual was indeed taken into account in her appraisal, as is apparent under the ‘Objectives’ heading of the 2011/2012 appraisal report. Even assuming that, as she claims without however being able to demonstrate it, that work took her two and half days, and not one and a half days, as the reporting officer submitted in her appraisal, the difference of a single day cannot, in itself, have had an impact such as to vitiate, by a manifest error, the entire contested appraisal.
57 In the fourth place, the applicant claims that she was, at the mid-term of the relevant appraisal period, able to meet her objectives, but that the implementation of the IP Translator judgment imposed significant constraints on her, beyond her control, which prevented her from achieving the expected results. The lack of clear instructions, she claims, amply explains the shortcomings in the results finally obtained.
58 In that regard, it is not seriously disputed that the implementation by OHIM of new rules for examining registration application cases following the IP Translator judgment resulted in a lengthening of the examination and procedural periods, which could have had the effect of slowing down the processing of cases. It is also established that the new procedures were only finalised and clarified at the end of 2012, that they could appear difficult to follow and that the examiners were not trained in the new methods until October 2012, which certainly did not allow the applicant, from the middle of 2012, to have optimal working conditions to effectively deal with the applications she was responsible for.
59 It should be noted, however, that such consequences only related to the second half of 2012 and not the entire appraisal period at issue. Moreover, as the applicant acknowledges, OHIM granted a number of additional decision points for the tasks related to the adaptation to the new procedures following the IP Translator judgment, and the applicant has not demonstrated that such compensation was manifestly an under-estimation or that she could benefit from it only for cases handled in 2013, as she was unable to finish any case affected by the consequences of the IP Translator judgment in respect of the contested appraisal period.
60 Furthermore, as OHIM argues, the examiners were all affected in much the same way by the consequences of the IP Translator judgment. All of the examiners, however, achieved a better performance than that of the applicant, particularly with regard to timeliness, even though the objectives of the applicant were 20% less than the objectives usually set for an examiner in a comparable situation. Although the applicant contests the relevance of such a comparison, it is not apparent from the case-file that her situation was manifestly different from that of the other examiners, in particular as regards examiners working in a less widely used language and dealing with refusal on absolute grounds. Whereas OHIM produced for the file the results of all the examiners in the applicant’s service, including examiners working in a less widely used language, classifying the applicant as last in her service, the applicant did not adduce any evidence capable of establishing that her situation was manifestly different from that of her colleagues, in particular those working in a less widely used language. Moreover, the applicant did not provide any evidence to establish that Finnish cases were manifestly more difficult to handle than cases presented in other less widely used languages and OHIM can reasonably argue in that regard that the complexity of a file is also related to non-linguistic factors.
61 It is not contested by OHIM that the instructions for processing applications for registration of a Community trade mark submitted in less widely used languages, taking into account the IP Translator judgment, were communicated to the members of staff after those available in other languages. However, the applicant did not dispute the explanations provided by OHIM at the hearing, according to which the applicant, for whom 30% of the cases to be handled were in English, had the benefit of instructions in English and training in the new case-law provided in that language for a significant part of her work. In those circumstances, and since training on the consequences of the IP Translator judgment was available in English before it was provided in other languages, the fact that she was not able to access that training in Finnish until a later date cannot have placed her at a disadvantage with regard to the rest of her colleagues.
62 Furthermore, the applicant herself acknowledges in her pleadings that all of the examiners were affected by the new instructions, for which ‘“Refresher Training” … was attended by a huge number of examiners’. Although the applicant claims that her reporting officer admitted, in the 2013 appraisal report, that the applicant had dealt with more cases affected by the consequences of the IP Translator judgment and complex cases than the average for examiners, on the one hand, the applicant did not produce that report and, on the other, in any event, it cannot be used to assess her performance in the previous year.
63 Finally, the reporting officer was entitled to expect, in view of the applicant’s seniority and her extensive experience in dealing with decisions to refuse registration on absolute grounds, that she would adapt more effectively to the new working methods so that she could, in the words of the general assessment in the contested appraisal report, ‘better manage herself in order to reach acceptable timeliness standards’, without such a remark revealing any manifest error in her appraisal of the applicant’s way of working.
64 Fifth and finally, the applicant argues that the reporting officer could not, without vitiating her appraisal by a manifest error, assess her results by comparing them with the results obtained by other examiners, since they were not in a situation comparable to hers.
65 It must however be noted, at the outset, that contrary to what the applicant claims, setting the objectives assigned to the applicant at 20% below the level normally expected for an examiner in a comparable situation took into account her personal situation and was individualised in order to take into consideration the level of her performance in previous years and the need to define specific accompanying measures. The development plan signed with the applicant also duly took into account her absences and her working hours resulting from her health problems.
66 Furthermore, it should be noted that the appraisal of members of staff is not aimed at ranking them in relation to each other, but at appraising the skills and competencies of each, independently of those of other members of staff. While the appraisal report is an element taken into account for the purposes of promotion, the applicant’s performance, as OHIM rightly observes, was not judged on the basis of the results obtained by the other examiners, but was appraised in accordance with pre-determined criteria common to all the examiners of her department. While the reporting officer stated in the contested appraisal report that, with 35% of her decisions out of time, the applicant was ranked well below the average in her department, of 11.3% of decisions out of time, it is not apparent from the reasoning of that report that the reporting officer considered that the general assessment of the applicant was level 6 on the ground that her performance ranked, in terms of timeliness, among the worst of other examiners in her department. Finally, whereas the applicant disputes the application of identical criteria to all the examiners, it is not in any event apparent from the case-file, and the applicant has not established, as stated in paragraph 60 of the present judgment, that she was in a different situation from that of the other examiners of the department and, in particular, those working in a less widely used language on decisions to refuse registration on absolute grounds for refusal. The complaint alleging that the contested appraisal report is vitiated by a manifest error in that it was drawn up by comparison with the performance of other examiners cannot, therefore, be accepted.
– The qualitative appraisal and timeliness
67 The applicant claims, first, that the reporting officer, in order to appraise her way of working and timeliness, did not adequately assess the quality of the work carried out. Whereas the applicant’s professional requirements of quality and completeness are consistent with the objective of legal certainty reiterated both by the Court of Justice of the European Union and by the Office, in its Strategic Plan 2011-2015 in particular, the reporting officer could not, without vitiating her assessment in that regard by a manifest error, consider that the applicant’s way of examining cases met ‘her personal standard of quality’ and not official expectations. The reporting officer could not, therefore, attribute to her the assessment ‘P’, which corresponds to the level of ‘proficient’ for the competency ‘[q]uality and results orientation’ while the level required for that competency is ‘M’, a level immediately above ‘P’ corresponding to ‘mastering’.
68 Nor could the reporting officer, according to the applicant, assess the competency ‘[s]elf management’ at the level ‘K’, which corresponds to ‘basic knowledge’, while the required level is ‘P’. She could not, therefore, without manifest error, having regard to the high degree of quality expected by the Office, consider that she ‘need[ed] to find a balance between the quality of her work and the volume and timeliness’, that she had to ‘learn to balance off the workload in a way that complex cases [or] new instructions don’t severely block output’, or indeed that she ‘[had] to be more flexible in adapting her agenda to [the] changing working environment of the [O]ffice and she should also try to … manage herself [better] in order to reach acceptable timeliness standards’. In short, the reporting officer could not accuse her of spending too much time on the quality of the decisions made and should have taken that into account when assessing timeliness.
69 The applicant also refers to poor organisation of the service, consisting of assigning to her almost all applications submitted in Finnish, due to the lack of sufficient staff able to work in that language; that organisation, she claims, led to her being overloaded with those applications, which explains the missed deadlines but in no way demonstrates professional incompetence on her part. The applicant further relied, at the hearing, on technical failures of the file management software that allegedly led to errors in the calculation of deadlines.
70 Moreover, the applicant considers that the calculation of deadlines did not take into account her half-time working hours, made necessary for medical reasons, over a part of the appraisal period at issue. Furthermore, she claims that cases continued to be assigned to her during her sick leave, without that being duly taken into account in the appraisal of timeliness.
71 For all those reasons, the applicant considers that the reporting officer could not, without manifest error, find that 35% of her cases were not processed within the deadlines.
72 In that regard, in relation, first, to the appraisal of the quality of her results, contrary to what is suggested by the applicant, timeliness in the handling of an application for the registration of a Community trade mark cannot be considered independently of the expected quality of the analytical work. Furthermore, it is not apparent from the case-file that OHIM did not take into account the requirement of legal certainty and of a high level of quality when setting the deadlines within which an examiner should, in principle, be able to deliver the files for which he is responsible. In those circumstances, the reporting officer was entitled to find, without manifest error in her assessment and without contradictory reasoning, that the quality of the results obtained by the applicant, of which timeliness is specifically one component, did not correspond, notwithstanding the ‘good quality’ of the decisions made, to the expected level, namely the ‘mastering’ level assessed as ‘M’, that the applicant had yet to learn how to reconcile quality considerations and timeliness and that she had to be attributed the level ‘P’, corresponding merely to ‘proficient’.
73 The fact that the reporting officer referred to the ‘personal’ standard of quality was intended, moreover, only to emphasise the personal involvement of the applicant in her work and not, as the applicant claims, to distort the content of the expected quality, which corresponded to the expectations of the Office and its guidelines, in respect of which the reporting officer noted that the applicant produced documents that were compliant, accurate and thorough.
74 As regards, secondly, the comments relating to the competency ‘[s]elf management’, it should be noted that, despite the fact that the objectives were revised downwards during the year, the applicant failed to meet or observe the prescribed deadlines. Furthermore, in view of the applicant’s long experience and her high grade, the reporting officer could reasonably expect that she could examine difficult and complex cases within the deadlines. In those circumstances, the reporting officer, given her broad discretion, was entitled to find, without manifest error, that the applicant still had to ‘learn to balance … the workload’ and ‘find a balance’ between the quality of work and timeliness in order to better manage the consequences of new instructions on the handling of her cases and to conclude, in the absence of relevant evidence to the contrary, that that competency corresponded to the level of ‘basic knowledge’, assessed as ‘K’, and not the level expected for that competency, namely ‘proficient’, assessed as ‘P’.
75 The fact that the reporting officer remarked, under the heading ‘Conduct in the service’, that the applicant signals her absences and ‘actively organises her agenda before longer leaves’ does not contradict, in itself, the conclusion set out in the preceding paragraph.
76 As regards the complaint alleging poor organisation of the service, the applicant does not provide, in any event, any evidence to establish that, as she claims, her delay in handling applications is largely due to the allocation, at the same time, of a large number of cases in Finnish, which she alone in the service was able to deal with. The applicant does not dispute, moreover, OHIM’s contention that the delays in processing cases were essentially identical for applications drafted in Finnish as for those in English, that is, in both of the applicant’s working languages. Moreover, the argument raised by the applicant at the hearing, alleging technical failures in the file management software regarding the calculation of deadlines, even if established, is not sufficiently substantiated to call into question the reality of the delays attributed to the applicant herself.
77 Finally, as already stated in paragraph 48 of the present judgment, the consequences of the applicant’s state of health in terms of working hours were duly taken into account in the development plan, and the applicant has not provided any specific evidence that could call into question OHIM’s contentions in that regard.
78 In light of all the foregoing, the applicant has not established that the assessment of the reporting officer, that 35% of the applicant’s cases were not dealt with in time, is vitiated by an error of fact or a manifest error.
– The general assessment and the attribution of level 6
79 The applicant claims that, in light of all the errors of fact and manifest errors of assessment that she has referred to and that vitiate the determination of the objectives, the results achieved and the appraisal of quality and timeliness, the general assessment was also vitiated as a consequence. She adds that, as the JEPC observed, in accordance with the internal note of 30 January 2012, only ‘[a drop] by more than 20%’ would lead ‘to considering the score of “improvement required”’, that is, level 6, whereas her production had dropped by only 18.25%. Moreover, the general assessment did not, she claims, take into account the ‘numerous extremely positive aspects in her conduct and the quality of her work’ and is therefore in contradiction with the quality of her performance, having regard in particular to the difficulty of the cases that she agreed to handle. For all those reasons, the reporting officer committed a manifest error by assessing her, finally, at level 6.
80 In that regard, it must be noted, at the outset, that in accordance with the internal note of 30 January 2012, the situation of a member of staff whose results are at least 20% lower than the objective initially set should lead the reporting officer to consider attributing a general assessment of level 6, for which improvement is required. While that note thus expressly refers to cases where the results are at least 20% lower than the expected objectives, it does not provide for the case, such as that of the applicant, where the results obtained by the member of staff are less than 20% lower than the objectives initially set.
81 Nor does the internal memo of 30 January 2012 suggest that only a reduction of at least 20% in relation to the objectives initially set could lead to attributing to the member of staff concerned a general assessment of level 6. The provisions on which the applicant relies are merely a guide for reporting officers regarding the quantitative criterion only. However, it is incumbent upon reporting officers to take into account criteria other than the percentage of achievement of objectives, such as timeliness, acquired skills and knowledge, the quality of analyses made or conduct in the service (see, to that effect, judgment in Morgan v OHIM, F‑26/13, EU:F:2014:180, paragraph 67, which is the subject of an appeal pending before the General Court in Case T‑683/14 P).
82 That said, it should be noted that, whereas the applicant only achieved 81.75% of her objectives, as revised by the development plan, she carried out, as the JEPC pointed out, quality work and did not hesitate to accept difficult cases. The quality of her work is also apparent from reading the evaluation table of her competencies contained in the 2011/2012 appraisal report. Of the seven competencies assessed, five were deemed to be consistent with the level required for the position held.
83 However, such a finding does not reveal a manifest error in the general assessment of the performance of the applicant in respect of the appraisal period in question.
84 Contrary to what the applicant claims, it is apparent from the content of the contested appraisal report that the reporting officer did take into account the positive aspects of her work. In weighing the strengths and weaknesses of the applicant, the reporting officer also took into consideration timeliness, the achievement of objectives and the organisation of her work.
85 While the contested appraisal report highlights the applicant’s qualities, it does, however, strongly qualify them. On the one hand, therefore, the appraisal points out that the applicant ‘is [a] very thorough examiner and delivers good quality work’, that ‘she thoroughly analyses the files’, that she ‘works independently also on very difficult cases’ and that she ‘is highly responsible and does her job with utmost dedication’. On the other hand, however, the reporting officer also highlighted the professional shortcomings of the applicant, noting that, although the applicant ‘is very diligent and meticulous … at times this precludes her from [meeting] the volume and timeliness standards’. The reporting officer also states that the ‘new rules or tools [unbalance] her and she needs time to adjust her working methods’, inviting the applicant to ‘be more flexible’ and to ‘manage herself [better] in order to reach acceptable timeliness standards’. Such assessments reflect the balancing of the strengths and weaknesses of the applicant, which could lead the reporting officer to find that improvements were still needed and that the required level was not achieved, without such an assessment of the general level revealing an inconsistency with both qualitative and quantitative appraisals of the applicant’s work during the period in question.
86 It follows from all the foregoing that, in view of the shortcomings noted in meeting the objectives, which had been reduced by 20% in relation to the objectives normally set for examiners of the department, the timeliness and the achievement of certain competencies, the reporting officer was entitled to find, without manifest error of assessment and notwithstanding the contrary advice of the JEPC, that ‘[t]he efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied. Improvements are needed’, in other words, that the overall level achieved by the applicant was not satisfactory, needed improvement and therefore deserved only level 6.
87 In the light of all the foregoing, and without the need to order the hearing of witnesses that the applicant requested in her letter of 21 November 2014, with no justification, moreover, for the delay in submitting such evidence after the close of the written procedure, the fourth and fifth pleas, alleging errors of fact and manifest error of assessment, must be rejected.
The sixth plea in law, alleging inadequate statement of reasons
88 The applicant claims that the reporting officer did not specify the method of calculating the averages obtained by the examiners of her department, so that the reasoning of the appraisal report is ‘opaque and inscrutable’.
89 OHIM contends that the sixth plea should be rejected.
90 In that regard, it should be noted that the obligation to state grounds is intended, on the one hand, to provide the person concerned with sufficient information to determine whether or not the decision taken was well founded and, on the other, make it possible for the decision to be the subject of judicial review. Moreover, as is apparent from the case-law, in order to assess whether an appraisal report is sufficiently reasoned, it is necessary to take into account all the information brought to the knowledge of the official or staff member concerned and not only the information set out in that report (judgment in Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 61).
91 In the present case, the contested appraisal report is sufficiently reasoned. Indeed, it indicates the number of points obtained and refers to the objective that had been set; it specifies the percentage of decisions made out of time; it refers to the work carried out in the context of the review of the internal manual; it gives details of the competencies of the applicant, both in terms of her analytical capacities and as regards communication, management and leadership, quality of results as well as self-management and organisation at work and conduct in the service; the general assessment is followed by a summary that weighs the strengths and weaknesses of the applicant; furthermore, the reasoning of the report was supplemented by the note of 23 May 2013 that the reporting officer drew up for the attention of the JEPC and that was copied to the applicant, which states the reasons why, in particular, the quality of the applicant’s decisions did not compensate for her shortcomings regarding meeting the set objectives and deadlines. In those circumstances, the applicant was able to understand exactly what was being alleged against her, without her needing an explanation of the method of calculation used in determining the averages for the department. Moreover, as already stated in paragraph 66 of the present judgment, it is not apparent from the reasoning of the contested appraisal report, or from the note of 23 May 2013, which is not even referred to in that report, that the reporting officer relied on a comparison of the results obtained by the applicant with those obtained by the other examiners of her department in order to find that the general assessment of her performance deserved only level 6.
92 In those circumstances, the sixth plea in law, alleging inadequate statement of reasons, must be rejected.
The seventh plea in law, alleging breach of the principle of protection of legitimate expectations
93 The applicant points out that, in the development plan, it was indicated that if she met her revised objectives and ‘all other elements of her performance [were] in line with [those new objectives, a general] evaluation at … level 4 [would be] envisaged’. In so far as the insufficiency of her results is a consequence of factors other than her way of working, in particular the lack of clear guidelines following the IP Translator judgment, the fact that she was finally attributed a general assessment of level 6 constitutes, she claims, a breach of the principle of protection of legitimate expectations.
94 OHIM contends that the seventh plea should be rejected.
95 In that regard, it should be noted that the development plan, as drafted, could have led to confusion in the mind of the applicant, as it did not clearly state the consequences that failure to meet the objectives would have on her appraisal report. Notwithstanding that regrettable imprecision, it should be noted, as was stated in paragraph 87 of the present judgment, that the contested appraisal report is not vitiated, in any event, by any manifest error of assessment. In those circumstances, and without the need to recall the case-law definition of a breach of the principle of protection of legitimate expectations, since the applicant neither met the objectives set nor received an assessment corresponding to the level required for all the competencies appraised, the reporting officer was entitled to find that the general assessment of the applicant’s performance corresponded to level 6 and not level 4, without disregarding the principle of legitimate expectations nor the meaning of the development plan.
The eighth plea in law, alleging breach of fiduciary duty
96 The applicant claims that the reporting officer, by adopting the 2011/2012 appraisal report, committed a breach of fiduciary duty on the ground, essentially, that she assessed the applicant’s performance according to the same criteria and under the same conditions as the other examiners, without taking her personal situation into account to assess compliance with the set objectives and deadlines, either with regard to her health, which resulted in an objective reduction in her working hours, or the specific complexity of her cases. Given that, as has been stated previously, the applicant was not in a different situation from that of the other examiners working on absolute grounds for refusal of applications for registration of a Community trade mark and working primarily in a less widely used language, that her state of health was duly taken into account when setting the objectives to be met and the complexity of the cases was the subject of a specific rating and was taken into account, such a plea in law, even if it is admissible, cannot be upheld.
The ninth and last plea in law, alleging breach of the principle of equal treatment
Arguments of the parties
97 The applicant submits her ninth plea in three parts. She claims, first, that she was in a different situation from that of the other examiners of the department, having regard, essentially, to her state of health and the complexity of her cases. Thus, it is claimed, the reporting officer should have assessed her performance in accordance with criteria other than those used to assess the performance of the other examiners. By using the same criteria, the reporting officer therefore breached the principle of equal treatment.
98 The reporting officer then breached that principle by assessing her performance on the basis of criteria other than those used to assess the performance of examiners who are, in fact, in a situation comparable to hers.
99 Finally, the reporting officer also breached that principle by treating the applicant less favourably than officials with competencies comparable to her own.
100 OHIM contends that the ninth plea should be rejected.
Findings of the Tribunal
101 As regards the first complaint relating to the failure to take into account the applicant’s state of health or the complexity of the cases and the alleged difference of situation between that of the applicant and that of the other examiners, it must be rejected on the grounds set out in paragraphs 48, 60 and 66 of the present judgment.
102 As regards the second and third complaints, by which the applicant seeks, by contrast, to argue that she was treated differently from other officials in the same situation as her and that such treatment was unfavourable to her, it suffices to note that the applicant does not provide any evidence in support of that argument.
103 The ninth plea in law, alleging breach of the principle of equal treatment, must therefore be rejected.
104 In the light of all the foregoing, since all of the pleas in law have been rejected, the claim for annulment directed against the contested appraisal report must be rejected.
2. The claim for damages for the harm suffered
105 The applicant claims, first, that she was in a situation of permanent insecurity, particularly because of the pressure she had come under, which created a state of stress that aggravated her health problems. Indeed, that was the reason she was given sick leave and then worked half-time on medical grounds.
106 It must be noted, however, that the damage for which the applicant seeks compensation is due to non-decision-making conduct of OHIM, which was not the subject of a prior claim for compensation. As the proceedings are not, in any event, related to that point, the claim for damages for that head of damage, in respect of the alleged stress at work, cannot succeed.
107 The applicant claims, secondly, that the contested appraisal report caused her non-material harm in respect of the numerous illegalities with which it is vitiated.
108 As the claim for annulment directed against that report has been rejected without any illegality having been established, those claims for damages, therefore, must also be rejected.
109 It follows from all the foregoing that all the claims set out in the application must be rejected.
Costs
110 Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 102(2) of that regulation, a successful party may be ordered to bear its own costs and to cover some or all of the costs incurred by the other party, if this appears justified by the conduct of that party, including before the proceedings were brought.
111 It is apparent from the grounds set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings OHIM has expressly requested that the applicant be ordered to pay the costs.
112 However, it is apparent from the case-file and the discussions at the hearing that OHIM gave rise to some confusion on the part of the applicant, both in the explanations of the reporting officer sent in response to the JEPC and copied to the applicant, relating in particular to the application of its internal rules, and in the explanations provided by the applicant’s superiors in the context of the development plan, by failing to state clearly, as mentioned in paragraph 95 of the present judgment, the consequences that plan would have on her appraisal report. Such ambiguity could have led the applicant to believe, in good faith, that OHIM had committed a manifest error in its assessment and to bring unnecessary legal proceedings. In those circumstances, it will be a fair reflection of the circumstances of the case to order OHIM to bear, in addition to its own costs, half of the costs incurred by the applicant.
On those grounds,
THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
hereby:
1. Dismisses the action;
2. Declares that Ms Rajala is to bear half of her own costs;
3. Declares that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) is to bear its own costs and orders it to pay half of the costs incurred by Ms Rajala.
Van Raepenbusch | Kreppel | Svenningsen |
Delivered in open court in Luxembourg on 18 March 2015.
W. Hakenberg | | S. Van Raepenbusch |