JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

25 October 2007

Case T-27/05

Carmela Lo Giudice

v

Commission of the European Communities

(Officials – Career development report – 2003 appraisal – Procedural irregularities – Article 43 of the Staff Regulations – Right to be heard – Sick leave – Medical certificate)

Application: for annulment of the appraisal covering the period from 1 January to 31 December 2003 and, in the alternative, annulment of the decision of 4 May 2004 drawing up the definitive version of the career development report on the applicant in respect of the relevant period.

Held: The Commission’s decision of 4 May 2004 drawing up the definitive version of the career development report on the applicant in respect of the 2003 appraisal is annulled. The Commission is ordered to pay the costs.

Summary

1.      Officials – Actions – Acts adversely affecting an official – Meaning – Staff appraisal – Not included

(Staff Regulations, Arts 90 and 91)

2.      Officials – Reports procedure – Career development report – Report drawn up without the official concerned having any involvement in the procedure

(Staff Regulations, Art. 43)

3.      Officials – Reports procedure – Career development report – Official not capable of taking part in procedure for drawing up report

4.      Officials – Reports procedure – Career development report – Time-limits for contesting report

(Staff Regulations, Art. 43)

1.      Only measures producing binding legal effects of such a kind as to affect the applicant’s interests by bringing about a distinct change in his position, and definitively establishing the institution’s position, constitute acts against which an action for annulment may be brought.

An assessment procedure does not constitute an act adversely affecting an official within the meaning of Articles 90 and 91 of the Staff Regulations since it does not produce any legal consequence capable of directly affecting an official’s interests. The procedure in question constitutes a series of preparatory measures resulting in a career development report, but which, unlike that report, do not produce any legal consequences for the applicant.

(see paras 27-28)

See: T‑69/92 Seghers v Council [1993] ECR II‑651, para. 28; T‑57/92 and T‑75/92 Yorck von Wartenburg v Parliament [1993] ECR II‑925, para. 36; T‑43/04 Fardoom and Reinard v Commission [2005] ECR-SC I‑A‑329 and II‑1465, paras 26 and 27

2.      A career development report cannot be definitively adopted without the official in question being given the opportunity to be properly heard. A procedural irregularity in the drawing up of the career development report whereby the official is not consulted, such consultation being the key element of the reporting system, constitutes an infringement of the right to be heard.

It follows that the fact that the appointing authority conducted the entire procedure for drawing up a career development report and concluded that report during a period when the official assessed was totally incapable of working, and without any involvement of the official in question, constitutes an infringement of his right to be heard and therefore of Article 43 of the Staff Regulations.

That finding is not called into question by the fact that there is no provision of the general implementing provisions adopted by the Commission for Article 43 of the Staff Regulations which allows an official on sick leave but who has access to the Commission’s computer system to obtain a suspension of the time-limits in order to make it possible for him to take part in the procedure for drawing up the career development report. Even assuming that those general implementing provisions were interpreted correctly, they cannot derogate from the provisions of the Staff Regulations and from the right to be heard.

(see paras 46-48, 52, 74-75)

See: T‑16/03 Ferrer de Moncada v Commission [2004] ECR-SC I‑A‑261 and II‑1163, para. 40; T-115/04 Laroche v Commission [2006] ECR-SC I-A-2-173 and II-A-2-845, para. 36; T-173/04 Carius v Commission [2006] ECR-SC I‑A‑2‑243 and II-A-2-1269, para. 69

3.      If the Commission has recognised that an official was totally incapable of working throughout the period when his career development report was being drawn up, it cannot reasonably deny, without providing evidence to the contrary, that the official was also unable to perform the specific tasks involved in the appraisal procedure, and that that inability deprived him of the opportunity properly to exercise his right to be heard. Those tasks are closely linked to the duties performed by the official at his workplace and essentially require the same physical and mental abilities as those needed to perform his day-to-day tasks.

The fact that the official under appraisal opened emails relating to the appraisal procedure and that he had access to the Commission’s computer system does not demonstrate that he was capable of taking part in the procedure for drawing up the career development report.

The fact that he was physically and mentally capable of performing those computer operations, which did not entail any assessment of his professional situation or communication with his superiors in order to protect his interests, is not sufficient to show that he was capable of drafting his self-assessment, attending an interview or providing reasons, as required under Article 8(9) of the general implementing provisions for Article 43 of the Staff Regulations, for his application to have his career development report reviewed.

(see paras 59-60, 63, 65)

See: T‑527/93 O v Commission [1995] ECR-SC I‑A‑9 and II‑29

4.      The time-limits for contesting a career development report at the different stages of the procedure, laid down by the general implementing provisions adopted by the Commission for Article 43 of the Staff Regulations, are designed not just to guarantee the efficient processing of the many career development reports which the Commission has to draw up each year, but also to ensure that the official under appraisal has an adequate period of reflection after he has consulted his career development report to enable him to indicate his agreement or to contest it before the appropriate authority. It is therefore appropriate to suspend the time-limit of five working days for requesting a review of the career development report where an official is officially absent from work, so as not to deprive him of his right to that period of reflection.

(see para. 68)

See: T‑154/04 Bauwens v Commission [2005] ECR-SC I‑A‑425 and II‑1933, paras 40 and 42