JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

3 May 2007

Case T-343/04

Vassilios Tsarnavas

v

Commission of the European Communities

(Officials – Staff report – Invalidity – Action for annulment – Interest in bringing proceedings – Action for damages – Inadmissibility)

Application: first, for annulment of the decision of the appeal assessor of 4 August 2003 establishing the definitive staff report on the applicant for the period from 1 July 1997 to 30 June 1999 and, secondly, damages in respect of the non-material damage suffered by the applicant by reason of the late drawing up of his staff report and the psychological harassment of which he was the victim.

Held: The decision of the appeal assessor of 4 August 2003 establishing the definitive staff report on the applicant for the period from 1 July 1997 to 30 June 1999 is annulled. The remainder of the action is dismissed. The Commission is ordered to pay its own costs and one half of the costs incurred by the applicant.

Summary

1.      Officials – Actions – Interest in bringing proceedings

(Staff Regulations, Arts 43, 90 and 91)

2.      Officials – Reports procedure – Staff report – Drawing up

(Staff Regulations, Art. 43)

3.      Officials – Reports procedure – Staff report – Drawing up

(Staff Regulations, Art. 43)

1.      In order for an official or a former official to be able to bring an action under Articles 90 and 91 of the Staff Regulations, he must have a personal interest in the annulment of the contested measure. That interest is assessed as at the time when the action is brought.

The staff report, which, as an internal document, plays an important part in the progress of the career of an official, in principle affects the interest of the person assessed only until the termination of his service. After his service has terminated, an official is no longer entitled to bring an action against his staff report, save for the purposes of establishing the existence of a particular fact justifying a current, personal interest in obtaining the annulment of the report in question.

The fact that the administration, in implementing a judgment annulling the refusal to promote the official, must re-examine his merits during the period in question constitutes such a particular fact, since the staff report at issue may be relevant in that re-examination.

(see paras 54, 56, 58-59)

See: 81/74 to 88/74 Marenco and Others v Commission [1975] ECR 1247, para. 6; 111/83 Picciolo v Parliament [1984] ECR 2323, para. 29; 126/87 Del Plato v Commission [1989] ECR 643, para. 18; C‑68/91 P Moritz v Commission [1992] ECR I‑6849, para. 16; T‑20/89 Moritz v Commission [1990] ECR II‑769, para. 15; T-49/91 Turner v Commission [1992] ECR II‑1855, para. 24, and the case-law cited therein; T-58/92 Moat v Commission [1993] ECR II‑1443, para. 31; T‑557/93 Rasmussen v Commission [1995] ECR-SC I‑A‑195 and II‑603, para. 30; T‑130/95 X v Commission [1996] ECR-SC I‑A‑603 and II‑1609, para. 45; T-105/03 Dionyssopoulou v Council [2005] ECR-SC I-A-137 and II-621, para. 20; T‑147/04 Ross v Commission [2005] ECR-SC I‑A‑171 and II‑771, paras 24 and 25; T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 54; T‑274/04 Rounis v Commission [2005] ECR-SC I‑A‑407 and II‑1849, paras 19 and 24

2.      In the reports procedure established by the Commission, failure to comply with the general provisions for implementing Article 43 of the Staff Regulations, adopted by that institution, which require consultation, before the preliminary draft report is drawn up, of the official’s immediate superiors and, in the case of an official who is a staff or trade union representative, of the ad hoc staff reports group, is not in itself sufficient to warrant annulment of a staff report if it is proved that the assessor did ultimately carry out those consultations before drawing up the definitive staff report .

(see paras 66, 68)

See: T‑326/01 Lebedef v Commission [2003] ECR-SC I‑A‑273 and II‑1317, paras 54 and 58; T-95/04 Lavagnoli v Commission [2006] ECR-SC I-A-2-121 and II‑A-2-569, para. 83

3.      The primary function of the staff report is to provide the administration with periodic information, which is as complete as possible, on the performance of their duties by officials. It cannot, in principle, fulfil that function in a truly comprehensive manner if those under whose authority the official in question discharged his duties during the reporting period are not consulted in advance and given an opportunity to make any comments. It follows that the failure to consult an immediate superior in drawing up an official’s staff report constitutes a substantial irregularity such as to invalidate the staff report.

In the absence of any indication to the contrary in the general implementing provisions adopted by an institution, the concept of immediate superior concerns the person under whose immediate authority the official reported on has actually performed his duties during the reporting period, even if, in the absence of an official title, it was a de facto hierarchical position.

(see paras 69-72, 82-83)

See: 6/79 and 97/79 Grassi v Council [1980] ECR 2141, para. 20; T‑63/89 Latham v Commission [1991] ECR II‑19, para. 27; T‑165/01 McAuley v Council [2003] ECR-SC I‑A‑193 and II‑963, paras 51 and 52