ORDER OF THE GENERAL COURT (Ninth Chamber)
12 June 2024 (*)
(Civil service – Members of the temporary staff – Reports procedure – Appraisal report – Partial annulment – Non-severability – Liability – Inadmissibility)
In Case T‑760/22,
TB, represented by L. Levi and N. Flandin, lawyers,
applicant,
v
European Union Agency for Cybersecurity (ENISA), represented by C. Chalanouli, acting as Agent, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, M. Sampol Pucurull and T. Perišin (Rapporteur), Judges,
Registrar: V. Di Bucci,
makes the following
Order
1 By her action based on Article 270 TFEU, the applicant, TB, seeks, in essence, the partial annulment of the third version of her career development report (CDR) for 2020 (2020 CDR), resulting from ED Decision 8/2022 of 3 February 2022, adopted by the Executive Director of the European Union Agency for Cybersecurity (ENISA) (‘ED Decision 8/2022’), in so far as that version contains certain comments in Sections ‘B.1 – Efficiency’, ‘B.2 – Ability’ and ‘B.3 – Conduct’ (‘the contested comments’) (together, ‘the contested acts’). The applicant also seeks compensation for the damage which she claims to have suffered.
Background to the dispute
2 On 1 November 2017, the applicant was recruited by ENISA as a member of the temporary staff, at grade AD 9, under Article 2(f) of the Conditions of Employment of Other Servants of the European Union, in order to fill the post of Head of the Finance and Procurement Unit for a period of three years until 31 October 2020.
3 The applicant was placed on sick leave between 15 May 2019 and 17 November 2019. Upon returning to work, she was readmitted as Head of the Policy Office Unit.
4 On 26 October 2020, the applicant signed an amendment to her employment contract which provided for the renewal of her contract for five years following an internal reorganisation of ENISA and stated that she would be employed in a non-managerial post.
5 In February 2021, ENISA issued Administrative Notice 1/2021 Performance Management at ENISA – Appraisal Exercise 2021 – Year 2020 (‘Administrative Notice 1/2021’), by which it launched the annual appraisal exercise for staff for reference year 2020.
6 Administrative Notice 1/2021 provided for four types of general conclusion depending on each jobholder’s level of performance: ‘Satisfactory without comments’ for the highest level, then ‘Satisfactory with comments’, ‘Satisfactory with a review’ and, lastly, ‘Unsatisfactory’.
7 As part of the procedure for drawing up her 2020 CDR, the applicant, on 7 April 2021, had a formal dialogue with her reporting officer and, on 20 April 2021, received the first version of her 2020 CDR, which included, as the general conclusion of the appraisal, the words ‘Satisfactory with comments’.
8 On 5 May 2021, the applicant initiated the internal appeal procedure under Article 7 of MB Decision 2015/15 of the Management Board of ENISA adopting Rules implementing Staff Regulations (‘MB Decision 2015/15’), in order to challenge certain comments made in Sections ‘B.1 – Efficiency’ and ‘B.3 – Conduct’ of the first version of the 2020 CDR.
9 By ED Decision 51/2021 of 15 June 2021, the Executive Director of ENISA, after meeting the applicant for an interview, rejected the internal appeal referred to in paragraph 8 above and confirmed the comments which the applicant had challenged in those proceedings (‘ED Decision 51/2021’).
10 On 2 September 2021, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the first version of the 2020 REC and ED Decision 51/2021.
11 On 7 October 2021, the applicant resigned from ENISA, with effect from 15 November 2021, and was then recruited by an international organisation.
12 By ED Decision 74/2021 of 26 October 2021, the Executive Director of ENISA withdrew ED Decision 51/2021 and recommenced the appraisal procedure (‘ED Decision 74/2021’).
13 On 22 December 2021, the reporting officer sent the applicant the second version of the 2020 CDR, which included, as a general conclusion of the appraisal, the words ‘Satisfactory with comments’.
14 On 6 January 2022, the applicant initiated the internal appeal procedure under Article 7 of MB Decision 2015/15 against the second version of the 2020 CDR.
15 By ED Decision 8/2022 of 3 February 2022, notified to the applicant on 4 February 2022, the Executive Director of ENISA, in his capacity as appeal assessor, amended the second version of the 2020 CDR by deleting certain comments from the report and adopting the general conclusion ‘Satisfactory without comments’.
16 On 28 April 2022, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against ED Decision 8/2022 and the second version of the 2020 CDR which, on that date, still appeared in the Sysper human resources management computer application.
17 On 12 May 2022, ENISA sent the applicant the third version of the 2020 CDR resulting from ED Decision 8/2022, which contained, in Sections ‘B.1 – Efficiency’, ‘B.2 – Ability’ and ‘B.3 – Conduct’, the contested comments.
18 On 26 August 2022, ENISA adopted Decision MB/2022/09 rejecting the complaint lodged by the applicant on 28 April 2022 (‘the decision rejecting the complaint’).
Forms of order sought
19 The applicant claims that the Court should:
– annul the contested acts in part;
– annul, in so far as necessary, the decision rejecting the complaint;
– order ENISA to pay compensation in respect of the non-material damage suffered by the applicant;
– order ENISA to pay the costs.
20 ENISA contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
Subject matter of the dispute
21 According to settled case-law, an administrative complaint, such as that referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, an action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 19 October 2022, JS v SRB, T‑271/20, not published, EU:T:2022:652, paragraph 24 and the case-law cited).
22 In the present case, it should be noted that the decision rejecting the complaint merely confirms, in essence, the contested acts, without having a different scope. Consequently, the action for annulment must be regarded as being directed against the contested acts.
Admissibility
The claims for annulment
23 Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on application by the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case.
24 In the present case, by separate document, ENISA contends that the present action is inadmissible on the ground that the applicant does not establish an interest in bringing proceedings on account of, first, her resignation from ENISA and, secondly, the fact that the second version of the 2020 CDR was replaced by the third version of the 2020 CDR, against which the applicant did not lodge either a complaint under Article 90(2) of the Staff Regulations or an action for annulment.
25 In addition, under Article 129 of the Rules of Procedure, on a proposal from the Judge-Rapporteur, the Court may, of its own motion at any time after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.
26 In the present case, the Court, having heard the parties by way of a measure of organisation of procedure, considers that it has sufficient information from the documents in the file and has decided to give a ruling without taking further steps in the proceedings.
27 As a preliminary point, it should be recalled that the institutions, bodies, offices and agencies of the European Union have a special obligation of transparency in regard to the appraisal and reporting of their staff, compliance with which is ensured by the formal procedure laid down in Article 43 of the Staff Regulations, that provision being applicable by analogy to members of the temporary staff, in accordance with Article 15(2) of the Conditions of Employment of Other Servants of the European Union (see, to that effect, judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraph 41).
28 In this respect, the CDR is an essential document in the appraisal of staff employed by the institutions, bodies, offices and agencies of the European Union, since it enables an assessment to be made of the ability, efficiency and conduct of an official or other member of staff, as referred to in Article 43 of the Staff Regulations (see, to that effect, judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraph 42).
29 In addition, the CDR is a value judgement by the immediate superiors of the official or staff member being appraised on the manner in which he or she has performed the duties conferred on him or her and on his or her conduct in the service during the relevant period (see, to that effect, judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraph 43).
30 It must be noted that, irrespective of its future usefulness, the CDR constitutes written, formal evidence of the quality of the work carried out by the official or staff member being appraised. Such an appraisal does not merely describe the tasks performed during the relevant period, but also includes an assessment of the personal qualities shown by the individual assessed in the conduct of his or her professional life (see, to that effect, judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraph 44).
31 Therefore, every official has a right to have his or her work recognised by means of an appraisal carried out in a just and equitable manner. Consequently, in accordance with the right to effective judicial protection, officials and other members of staff must be acknowledged as having the right to challenge their CDR on account of its content or because it has not been drawn up in accordance with the statutory and special rules that apply to them (see, to that effect, judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraph 45).
32 However, the right to challenge a CDR is not absolute and cannot allow the Court to derogate from the strict application of the rules on the admissibility of actions, which meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, to that effect, order of 29 November 2017, Società agricola Taboga Leandro e Fidenato Giorgio v Parliament and Council, C‑467/17 P, not published, EU:C:2017:916, paragraph 19 and the case-law cited).
33 Included among those rules on admissibility is, in particular, the rule that the partial annulment of an EU act is possible only in so far as the elements whose annulment is sought may be severed from the remainder of the act. The Court has repeatedly ruled that that requirement of severability was not met where the partial annulment of an act would have the effect of altering its substance. Review of whether the contested provisions are severable requires consideration of their scope, in order to be able to assess whether their annulment would alter the spirit and substance of the decision the annulment of which is sought (see, to that effect, judgment of 16 July 2015, Commission v Council, C‑425/13, EU:C:2015:483, paragraph 94 and the case-law cited).
34 In the present case, it must be noted that the applicant seeks the partial annulment of the third version of her 2020 CDR, resulting from ED Decision 8/2022, in so far as that version contains the contested comments in Sections ‘B.1 – Efficiency’, ‘B.2 – Ability’ and ‘B.3 – Conduct’.
35 Accordingly, since the Court is called upon to rule on claims seeking not the annulment in full of the contested acts, but rather the annulment in part thereof, it is necessary to determine whether such partial annulment is possible.
36 In that regard, first, it follows from Article 43 of the Staff Regulations and the case-law principles referred to in paragraphs 27 to 30 above that the purpose of the CDR is to make an assessment of the ability, efficiency and conduct of the official or staff member being appraised.
37 Accordingly, although a CDR usually contains several sections, the various parts of that document are intended to enable the hierarchical authority to assess as thoroughly and objectively as possible the performance and personal qualities which the person being appraised has demonstrated in the conduct of his or her professional life during the relevant period.
38 In that regard, the assessment of the ability, efficiency and conduct of the official or staff member being appraised, which emerges from the different sections of the CDR, is, in principle, summarised in a general assessment or conclusion that must be consistent with those connected sections.
39 Secondly, it should be observed that, in the present case, the rules which govern the drawing up of the content of the CDRs of jobholders within ENISA reflect the general finding made in paragraphs 36 to 38 above.
40 Article 2(2) of MB Decision 2015/15 provides that ‘each report shall include an individual qualitative appraisal of the jobholder’s efficiency, ability and conduct in the service[; the] report shall be concerned with all the jobholder’s professional activities’. According to paragraph 3 of that article, ‘each report shall also include a conclusion on whether the jobholder’s performance has been satisfactory …’.
41 Accordingly, it is apparent from the third version of the 2020 CDR that that document contains the following six parts: ‘A. Self assessment of the Jobholder/Staff Member’; ‘B. Appraisal of efficiency, ability and conduct’; ‘C. Overall assessment’; ‘D. Learning and development’; ‘E. Future objectives’; and ‘F. Comments on the report’. The various assessments contained in those parts are summarised in the final conclusion ‘Satisfactory without comments’, which means, according to Administrative Notice 1/2021, that all objectives have been met in full and that the jobholder has demonstrated outstanding use of all the competences relevant to his or her role.
42 Furthermore, it should be noted, first, that Article 5 of MB Decision 2015/15 provides that ‘the individual qualitative appraisal shall be based on the ability, efficiency and conduct in the service of the jobholder, taking into account the context within which the jobholder has performed [his or her] duties …’. Secondly, recital 4 of MB Decision 2015/15 provides that ‘the appraisal system applicable to the ENISA staff is intended to provide regular and structured feedback in order to improve performance and contribute to future career development’.
43 In that regard, it should be observed that the contested comments contribute to understanding the context in which the applicant performed her duties, within the meaning of Article 5 of MB Decision 2015/15, and are intended, in accordance with recital 4 of MB Decision 2015/15, to improve her performance.
44 Therefore, it is clear that the comments which the applicant seeks to challenge in isolation are inseparable from the other elements contained in the third version of the 2020 CDR.
45 In particular, the contested comments form an integral part of the qualitative appraisal of the applicant’s overall performance as the jobholder concerned for 2020.
46 In the light of the inseparable link between the contested comments and the other elements contained in the contested acts, the annulment of those comments would alter the spirit and substance of those acts within the meaning of the case-law cited in paragraph 33 above.
47 In that regard, it is apparent from the case-law that, where partial annulment of the contested act is not possible, the action must be dismissed as inadmissible, since the Court cannot annul an act in its entirety if only an application for partial annulment has been brought before it, without ruling ultra petita (see order of 24 October 2019, Liaño Reig v SRB, T‑557/17, not published, EU:T:2019:771, paragraph 26 and the case-law cited).
48 It follows that, since the contested comments are not severable from the third version of the 2020 CDR and partial annulment of the contested acts is not possible, the action must be dismissed as inadmissible, since the Court cannot annul the contested acts in their entirety, because only an application for partial annulment has been brought before it, without ruling ultra petita.
49 In any event, it should be noted that, if the claims were interpreted as seeking the annulment of the contested acts in their entirety, they would still be inadmissible, since those acts cannot be regarded as adversely affecting the applicant.
50 It should be recalled that an applicant is adversely affected, for the purposes of Article 90(2) of the Staff Regulations, only by measures which produce binding legal effects such as to affect his or her interests by bringing about a distinct change in his or her legal position (see judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 44 and the case-law cited).
51 According to settled case-law, certain acts, even though they do not affect the material interests or the rank of an official or other servant, may be regarded as acts adversely affecting him or her if they adversely affect the non-material interests and the future prospects of the person concerned (see order of 4 March 2022, KI v eu-LISA, T‑338/20, not published, EU:T:2022:130, paragraph 37 and the case-law cited).
52 In the present case, it must be observed that the third version of the 2020 CDR includes an individual qualitative appraisal of the applicant’s efficiency, ability and conduct, on the basis of which it reaches the final conclusion that the applicant’s performance for 2020 was ‘Satisfactory without comments’, which means that the applicant obtained the best possible report according to ENISA’s appraisal scale as described in paragraph 6 above.
53 Accordingly, even if the Court were able to find that certain assessments contained in the contested acts were unlawful, that finding of unlawfulness would have no effect on the final conclusion referred to in paragraph 52 above, which is the most favourable to the applicant.
54 In addition, it is not apparent from the comments which the applicant seeks to have annulled that their content contains personal criticisms of her, independent of her professional competences or performance, or that that content exceeds the limits of an assessment of her efficiency, ability and conduct which is as objective as possible.
55 It must be remembered that negative comments made to an official do not necessarily undermine his or her personality, dignity or integrity where they are made in measured terms and are not based on unfair accusations devoid of any link with objective facts (see, to that effect, judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 78 and the case-law cited).
56 In those circumstances, it is not apparent from the contested measures that they adversely affect the applicant, in particular in so far as they might adversely affect her non-material interests or future prospects.
57 Consequently, the claims for annulment must be rejected as inadmissible.
The claim for damages
58 In support of her claim for damages, the applicant argues that ENISA should be ordered to pay her the sum of EUR 5 000 as compensation for the non-material damage allegedly suffered as a result of the unlawfulness which vitiates the contested acts.
59 In that regard, it should be recalled that a claim for compensation for material or non-material damage must be rejected where it is closely linked to a claim for annulment which has itself been rejected either as inadmissible or as unfounded (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 202 and the case-law cited).
60 In the present case, it must be held that the claim for damages is closely linked to the claims for annulment. First, the applicant seeks compensation for non-material damage which she claims to have suffered as a result of the unlawfulness of the contested acts. Secondly, she explains the nature of that damage, but does not rely, in support of her claim for damages, on heads of unlawfulness which differ from those which she set out in support of her claim for annulment.
61 In that context, since the claims for annulment have been rejected as inadmissible, the claim for damages must also be rejected.
62 In the light of the foregoing considerations, the action must be dismissed in its entirety as inadmissible.
Costs
63 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
64 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by ENISA.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. TB shall pay the costs.
Luxembourg, 12 June 2024.