JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

1 March 2007

Case F-30/05

Asa Sundholm

v

Commission of the European Communities

(Officials – Appraisal – Career development report – 2003 appraisal – Obligation to state the reasons on which the report is based – Rights of the defence)

Application: brought under Articles 236 EC and 152 EA, in which Ms Sundholm seeks annulment of her career development report for the period from 1 January to 31 December 2003.

Held: The application is dismissed. The parties are ordered to bear their own costs.

Summary

1.      Officials – Reports procedure – Less favourable report influencing scope of obligation to state reasons

(Staff Regulations, Art. 43)

2.      Officials – Reports procedure – Observance of the rights of the defence

(Staff Regulations, Arts 26, first and second paras, and 43)

3.      Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

1.      The report to be used as a reference for determining whether the report for a particular year is less favourable than previous reports, requiring particular attention to be paid to the statement of reasons, is the periodic report for the previous year, whether or not it has subsequently been annulled.

(see para. 44)

2.      Neither the fundamental principle of observance of the rights of the defence nor the first and second paragraphs of Article 26 of the Staff Regulations which give concrete expression to that principle make the fact that a matter may be held against an official in his appraisal report subject to the drawing-up, prior to the procedure leading to the adoption of that report, of a written warning and the communication of that warning to the individual concerned.

That individual is also not justified in claiming that his rights of defence have been infringed because of the failure to comply with internal directives of his institution concerning the obligation on hierarchical superiors to provide regular feedback on officials’ performance during the reference period itself. The requirement to observe the right to a fair hearing, that is to say, to offer an official to whom a decision adversely affecting him is addressed the opportunity to express his views adequately, applies only once the procedure liable to culminate in such a decision has been initiated. Thus, as regards the appraisal of officials, observance of that principle may be enforced only during the appraisal procedure, which necessarily commences after the end of the reference period.

(see paras 74, 76-78)

See:

T-157/04 De Bry v Commission [2005] ECR-SC I-A-199 and II‑901, paras 41, 42 and 45

3.      An official cannot reasonably plead, in support of an action directed against a career development report, that unauthorised third parties have had access to that report. Such a fact, even if established, would have no effect on the legality of that document.

(see para. 85)