JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

23 September 2020 (*)

(Civil service – Members of the temporary staff – Contract for an indefinite period – Appraisal report – 2016 appraisal exercise – Plea of illegality relating to the appraisal manual – Manifest error of assessment – Appraisal of activities undertaken as staff representative – Procedural irregularity – Termination of employment contract – Unsatisfactory performance over a period of two years)

In Cases T‑77/18 and T‑567/18,

VE, represented by L. Levi and N. Flandin, lawyers,

applicant,

v

European Securities and Markets Authority (ESMA), represented by A. Lorenzet and N. Vasse, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,

defendant,

ACTIONS brought under Article 270 TFEU seeking (i) annulment of the applicant’s appraisal report for the period from 1 January to 31 December 2016, of the decision of 14 November 2017 to terminate his contract as a member of the temporary staff and of the decisions rejecting his complaints against those acts and (ii) compensation for the non-material damage allegedly suffered by the applicant,

THE GENERAL COURT (Sixth Chamber),

composed of S. Papasavvas, acting as President, D. Spielmann and Z. Csehi (Rapporteur), Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 4 December 2019,

gives the following

Judgment

I.      Background to the dispute

1        The applicant, VE, worked as a seconded national expert at the Committee of European Securities Regulators (CESR) from 7 April 2010.

2        On 1 January 2011, CESR was replaced by the European Securities and Markets Authority (ESMA).

3        The applicant was recruited by ESMA, with effect from 1 July 2011, as a member of the temporary staff under Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) to a post in the administrators’ function group at grade AD 7 for a period of three years. He served as a senior officer in the field of [confidential]. (1)

4        The applicant’s contract as a member of the temporary staff was renewed, on its expiry, for an indefinite period.

5        From 1 June 2014 to 5 July 2017, the applicant was a full member of ESMA’s staff committee.

6        In the appraisal report for the period from 1 January to 31 December 2014, the applicant’s reporting officer considered his performance to be satisfactory, even though certain weaknesses in his performance were highlighted. The applicant submitted a number of criticisms of that report, while not challenging it through the procedures provided for that purpose.

7        In the appraisal report for the period from 1 January to 31 December 2015 (‘the 2015 appraisal report’), the applicant’s reporting officer considered his level of performance to be unsatisfactory. That appraisal was confirmed by the countersigning officer, ESMA’s executive director. The appeal assessor, ESMA’s chairperson, before whom the applicant brought an appeal against that report, confirmed it. The applicant did not lodge a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) or an action against the report at issue.

8        By letter of 27 July 2016, the applicant raised with ESMA’s human resources department his working situation and requested, referring to the conflictual professional relationship that he had with his reporting officer, that a specific dialogue should be initiated in order to remedy that situation.

9        On 27 September 2016, a mid-term dialogue meeting was held between the applicant and his reporting officer concerning his performance.

10      By email of 5 October 2016, the applicant informed ESMA’s executive director of his work situation and, inter alia, asked her, in the light of the difficulties encountered with his reporting officer, to facilitate an internal transfer in the interest of the service. That email resulted in several exchanges between the persons concerned.

11      By email of 7 November 2016, ESMA’s executive director informed the applicant that she had asked the human resources department to act as a mediator between him and his reporting officer. That announcement gave rise to an exchange of several emails between ESMA and the applicant concerning the organisation of a mediation procedure. The applicant did not agree, inter alia, with the fact that the mediator should be a person within ESMA and suggested that an external person be appointed. In the end, no mediation meeting was organised.  

12      On 16 November 2016, the applicant attended a meeting with the representatives of ESMA’s human resources department concerning his request for an internal transfer.

13      By email of 20 December 2016, ESMA’s executive director informed the applicant that she was not in a position to grant his request for an internal transfer. That email also gave rise to a series of exchanges between the applicant and ESMA’s executive director. In response to one of the applicant’s emails, ESMA’s executive director informed the applicant, by email of 20 January 2017, inter alia, that, if the applicant considered that ESMA should provide him with assistance pursuant to Article 24 of the Staff Regulations, it was for him to state reasons for his request and provide evidence to substantiate his claims.

14      On 15 February 2017, a dialogue meeting was held between the applicant and his reporting officer concerning his performance in 2016.

15      The applicant’s appraisal report for the period from 1 January to 31 December 2016 (‘the 2016 appraisal report’) was drawn up by the applicant’s head of department, as reporting officer, on 1 March 2017. On 3 March 2017, ESMA’s executive director, in her capacity as countersigning officer, confirmed that report. It is apparent from that report that the level of the applicant’s performance was considered, in the context of the overall assessment of the period concerned, to be unsatisfactory.

16      On 14 March 2017, the applicant lodged an appeal with the appeal assessor, ESMA’s chairperson, against the 2016 appraisal report. After hearing the applicant at a meeting, the appeal assessor confirmed the 2016 appraisal report on 10 April 2017.

17      By email of 23 May 2017, ESMA’s executive director informed the applicant of her intention to terminate his contract in accordance with Article 47(c)(i) of the CEOS and invited him to attend a meeting in that regard. That email also gave rise to a series of exchanges between the applicant and ESMA. A meeting was held on 22 June 2017 between ESMA’s executive director, assisted by the human resources team leader and a lawyer, and the applicant concerning the possible termination of his contract. The applicant was assisted by his lawyer and a staff representative of another institution.

18      As from [confidential], the applicant was on sick leave and that leave was extended several times until [confidential]. During his sick leave, the applicant was in hospital from [confidential] to [confidential].

19      By letter of 7 July 2017, the applicant lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against the 2016 appraisal report.

20      Between July and September 2017, the applicant wrote to ESMA’s executive director on several occasions. Replies were given to the requests made in those communications.

21      By decision of 6 November 2017, ESMA’s executive director rejected the complaint brought by the applicant against the 2016 appraisal report (‘the decision of 6 November 2017 rejecting the complaint’).

22      By letter of 14 November 2017, ESMA’s executive director, in her capacity as the authority empowered to conclude contracts of employment (‘the AECE’), terminated the applicant’s contract in accordance with Article 47(c)(i) of the CEOS (‘the decision to terminate the contract’). The applicant was also informed of the fact that, taking into account a six-month notice period, his last day of employment was to be 15 May 2018. When the decision to terminate the contract was adopted, the applicant was [confidential] years old.

23      By letter of 9 February 2018, the applicant lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against the decision to terminate the contract.

24      By letter of 23 April 2018, the applicant was informed that the notice period would be suspended for a period of three months on the ground that he was on sick leave and that, accordingly, his last day of employment was to be 15 August 2018.

25      By decision of 11 June 2018, the complaint lodged by the applicant against the decision to terminate the contract was rejected (‘the decision of 11 June 2018 rejecting the complaint’).

26      On 13 July 2018, at the applicant’s request, a decision was taken to initiate a procedure to establish invalidity in relation to him.

II.    Procedure and forms of order sought

27      By application lodged at the Registry of the General Court on 12 February 2018, the applicant brought an action seeking, inter alia, annulment of the 2016 appraisal report. The action was registered as Case T‑77/18. By letter of the same date, the applicant made an application for anonymity, which was granted.

28      By application lodged at the Court Registry on 21 September 2018, the applicant brought an action for inter alia the annulment of the decision to terminate the contract. The action was registered as Case T‑567/18. By letter of the same date, the applicant made an application for anonymity, which was granted.

29      In Case T‑77/18, no party submitted a request for a hearing within three weeks of the notification of the close of the written part of the procedure. In Case T‑567/18, the applicant requested, on 28 May 2019, a hearing in accordance with Article 106 of the Rules of Procedure of the General Court.

30      By decision of 10 July 2019, on a proposal from the Judge-Rapporteur, the Court (Sixth Chamber) requested the parties, by way of measures of organisation of procedure under Article 89 of the Rules of Procedure, to reply in writing, in Case T‑77/18, to certain questions. The parties did so within the period prescribed.

31      At the request of the applicant, and after hearing the opposite party, by decision of the acting President of the Sixth Chamber of the General Court of 24 September 2019, Cases T‑77/18 and T‑567/18 were joined for the purposes of the oral part of the procedure, in accordance with Article 68 of the Rules of Procedure.

32      On a proposal from the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral part of the procedure in the joined cases. In addition, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court put questions to the parties to be answered in writing as regards Case T‑567/18 and requested them to comment on their respective responses lodged in Case T‑77/18. The parties replied to those requests within the periods prescribed.

33      The parties submitted oral arguments and their answers to the questions put by the Court at the hearing on 4 December 2019.

34      In Case T‑77/18, after clarification of the form of order sought in response to a question put by the Court, the applicant claims that the Court should:

–        annul the 2016 appraisal report;

–        in so far as necessary, annul the decision of 6 November 2017 rejecting the complaint;

–        order that compensation be paid for the non-material harm suffered by him, estimated ex aequo et bono in the sum of EUR 10 000;

–        order ESMA to pay the costs.

35      In Case T‑567/18, the applicant claims that the Court should:

–        annul the decision of 11 June 2018 rejecting the complaint;

–        in so far as necessary, annul the decision to terminate the contract;

–        order that compensation be paid for the non-material harm that he suffered;

–        order ESMA to pay the costs.

36      In both cases, ESMA contends that the Court should:

–        declare the actions inadmissible in part and dismiss them in their entirety as unfounded;

–        dismiss the claims for compensation for the non-material harm allegedly suffered;

–        order the applicant to pay the costs.

III. Law

37      First of all, the Court has decided to join Cases T‑77/18 and T‑567/18 for the purposes of the judgment, pursuant to Article 68(1) of the Rules of Procedure.

A.      Admissibility

38      In Case T‑77/18, ESMA submits that (i) all the references contained in the application relating to the termination of the applicant’s contract and to his sick leave in 2017 and (ii) the documents relating thereto must be declared inadmissible, in so far as that case relates only to the 2016 appraisal report. It also contends that the applicant’s arguments calling into question the appraisal reports for the years 2013 to 2015 must be declared inadmissible. In addition, in Case T‑567/18, ESMA argues that all references made in the application by which the applicant challenges the appraisal reports for the years 2013 to 2016 and all the documents relating thereto must be declared inadmissible, in so far as those reports are not the subject of that case.

39      In that regard, as regards Case T‑77/18, it should be noted that the factual matters relating to the termination of the applicant’s contract and his sick leave in 2017, the admissibility of which is contested by ESMA, are mentioned by the applicant in the part of the application dealing with the description of the facts as contextual information and cannot therefore be regarded as inadmissible. Furthermore, it must be pointed out that the information at issue is irrelevant for the purpose of examining the legality of the 2016 appraisal report.

40      In so far as the applicant refers to an alleged failure to take account of his staff representation activities in his appraisal reports for the years 2013 to 2015, it should be borne in mind that, according to the case-law, the principle of legal certainty does not allow a member of the temporary staff who did not challenge an appraisal report within the time limits laid down for that purpose to call into question its validity incidentally in an action brought against a challengeable act for which that report was a preparatory step. Thus, it is necessary to regard matters in an appraisal report which have not been challenged as established (see. to that effect, judgment of 13 December 2017, HQ v CPVO, T‑592/16, not published, EU:T:2017:897, paragraph 39 and the case-law cited). Consequently, in the absence of any appeal, the appraisal reports for the years 2013 to 2015 became definitive and could not therefore be called into question when the 2016 appraisal report was challenged. Accordingly, such an argument must be rejected as inadmissible.

41      As regards the plea of inadmissibility raised by ESMA in Case T‑567/18, notwithstanding the case-law cited in paragraph 40 above, it should be borne in mind that, according to the case-law, an applicant is entitled to challenge the inferences which the administration has drawn from an appraisal report and to complain that it has exercised its discretion in a way that was manifestly incorrect by basing the measure which he or she seeks to have annulled on certain negative comments appearing in that report (see. to that effect, judgment of 17 February 2016, DE v EMA, F‑58/14, EU:F:2016:16, paragraph 61).

42      In the present case, the references made in the application lodged in Case T‑567/18, which relate to the applicant’s appraisal reports for the years 2013 to 2015, do not seek to call into question the content of those reports and are not, therefore, inadmissible. First, those reports are relied on in order to describe the context in which the decision to terminate the contract was adopted and, second, in order to challenge the legality of that decision on the basis of the information contained in those reports.

43      As regards the references relating to the 2016 appraisal report, it is sufficient to note that the applicant does not challenge, for the first time and incidentally, that report in Case T‑567/18, but requests the Court, in essence, to draw the appropriate inferences from an annulment of that report in the context of Case T‑77/18 and to annul also the decision to terminate the contract accordingly. The arguments relating to that report are therefore admissible.

44      In those circumstances, the applicant’s argument seeking to call into question in Case T‑77/18 his appraisal reports for the years 2013 to 2015 on the ground that his staff representation activities were not taken into consideration must be rejected as inadmissible. As to the remainder, ESMA’s arguments challenging the admissibility of certain matters put forward by the applicant cannot succeed and must be rejected.

B.      Heads of claim seeking annulment of the decisions rejecting the complaints

45      It should be borne in mind that, in accordance with the combined provisions of Article 90(2) and Article 91(1) and (2) of the Staff Regulations, applicable by analogy to members of the temporary staff under Article 46 of the CEOS, a member of staff to whom the Staff Regulations apply is entitled to bring an action before the General Court only if he or she has first submitted a complaint to the appointing authority against an act adversely affecting him or her, either where the appointing authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The administrative complaint and its rejection, whether express or implied, thus constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature (judgment of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraph 26).

46      Consequently, the 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 (judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8), except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (judgment of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraph 26).

47      Moreover, it is apparent from the case-law that the lodging of a complaint against an appraisal report is not mandatory (see. to that effect, judgment of 3 July 1980, Grassi v Council, 6/79 and 97/79, EU:C:1980:178, paragraph 15). Nevertheless, where the person concerned pursues the path of making a prior complaint, he or she must comply with the procedural requirements applicable to it (judgment of 3 December 2015, Cuallado Martorell v Commission, T‑506/12 P, EU:T:2015:931, paragraph 56).

48      In the present case, the decision of 6 November 2017 rejecting the complaint, which is limited to providing further clarifications in response to the arguments raised by the applicant, merely confirms the 2016 appraisal report, which became final following the referral of the matter to the appeal assessor, without a fresh examination of the situation being carried out in the light of new elements of fact or of law.

49      The same is true of the decision of 11 June 2018 rejecting the complaint. By providing clarifications in response to the arguments put forward by the applicant, that decision merely confirms the decision to terminate the contract, without a fresh examination of the situation on the basis of new elements of fact or of law having been conducted.

50      In those circumstances, since the decisions rejecting the complaints at issue lack any independent content, the applications for annulment must be regarded as being directed against the 2016 appraisal report and the decision to terminate the contract.

C.      The application for annulment of the 2016 appraisal report

51      In support of his claim seeking annulment of the 2016 appraisal report, the applicant relies on three pleas in law.

52      In the first plea in law, the applicant claims, pursuant to Article 277 TFEU, that the user manual for ESMA’s performance appraisal (‘the appraisal manual’) is unlawful and he alleges, in that regard, infringement of Article 110(2) of the Staff Regulations. The second plea in law alleges (i) manifest errors of assessment by ESMA in its assessment of the applicant’s main activities and (ii) errors in the assessment of his activities as staff representative. The third plea in law alleges breach of the duty to have regard to the welfare of officials and infringement of the principle of good administration.

1.      First plea in law, alleging that the appraisal manual is unlawful

53      The applicant claims that the appraisal manual is unlawful on the ground that it was adopted without consulting the staff committee, in breach of Article 110(2) of the Staff Regulations. He states, in essence, that, in opting for that manual ESMA adopted its own implementing rules concerning appraisal procedures. He adds that the appraisal manual at issue has not been published in the register of rules adopted to give effect to the Staff Regulations, set up and administered by the Court of Justice of the European Union. Moreover, the applicant claims that the appraisal manual is not a mere information document which does not contradict Commission Decision C(2013) 8985 final of 16 December 2013 laying down general provisions for implementing Article 43 of the Staff Regulations and implementing the first paragraph of Article 44 of the Staff Regulations (‘the GIPs for Article 43’). In his opinion, the appraisal manual differs from the GIPs for Article 43 in several respects. Furthermore, the applicant disputes, in essence, that ESMA applied the GIPs for Article 43 by analogy.

54      ESMA disputes those arguments.  

55      As a preliminary point, it should be noted that, according to settled case-law, Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, for the purpose of obtaining the annulment of an act against which it is capable of bringing proceedings, the validity of an act of general application adopted by an institution of the European Union which constitutes the legal basis of the contested act, if that party was not entitled to bring a direct action challenging the act which thus affected him or her without that person having been in a position to seek its annulment (judgments of 6 March 1979, Simmenthal v Commission, 92/78, EU:C:1979:53, paragraph 39; of 11 December 2012, Sina Bank v Council, T‑15/11, EU:T:2012:661, paragraph 43; and of 27 October 2016, ECB v Cerafogli, T‑787/14 P, EU:T:2016:633, paragraph 42).

56      It must be borne in mind, moreover, that the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings. It follows that the act of general application claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual act and the act of general application in question. In that regard, the existence of such a link may be inferred, inter alia, from the finding that the measure against which the main action has been brought is essentially based on a provision of an act of general application whose legality is contested. Finally, it should be pointed out that the illegality of the act of general application on which the individual act is based cannot result in the annulment of the act of general application but only of the individual act to which it has given rise (see, to that effect, judgment of 13 June 1958, Meroni v High Authority, 9/56, EU:C:1958:7, p. 140). Article 277 TFEU is intended to protect the litigant against the application of an unlawful legislative act, without affecting the act of general application itself, which has become unchallengeable by the expiry of the limitation periods provided for in Article 263 TFEU. Thus, a judgment which finds that an act of general application is not applicable acquires the force of res judicata only with regard to the parties to the dispute which gave rise to that judgment (judgments of 27 October 2016, ECB v Cerafogli, T‑787/14 P, EU:T:2016:633, paragraph 45, and of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 57).

57      In the present case, there is nothing to prevent the legality of the appraisal manual from being examined. It should be noted that that manual was applied when the 2016 appraisal report was drawn up. It is true that ESMA maintains that its value is merely informative. Nevertheless, in so far as, according to the applicant, that manual must be placed on the same footing as ESMA’s own rules for implementing the Staff Regulations which were adopted without prior consultation of the staff committee in breach of Article 110(2) of the Staff Regulations, it is necessary to ascertain whether that is the case.

58      Under the first subparagraph of Article 110(2) of the Staff Regulations, implementing rules adopted by the Commission to give effect to the Staff Regulations, including the general implementing provisions, are to apply by analogy to the agencies. However, under the third subparagraph of Article 110(2) of the Staff Regulations, an agency may, after consulting its staff committee, submit to the Commission for its agreement implementing rules which are different from those adopted by the Commission. An agency may also request the agreement of the Commission to the non-application of certain of those implementing rules. Furthermore, under the fifth subparagraph of Article 110(2) of the Staff Regulations, an agency may, after consulting its staff committee, submit to the Commission for its agreement implementing rules which concern subjects other than the implementing rules adopted by the Commission.

59      It is apparent from the documents before the Court that ESMA’s Management Board decided, on 23 January 2014, to apply the GIPs for Article 43 by analogy. In that decision bearing the reference ESMA/2014/MB/14 (‘the decision of 23 January 2014’), it is also stated that ESMA’s staff committee was consulted before the adoption of that decision and that that decision took effect on 1 January 2014.

60      Moreover, it should be noted that, in the introduction to the appraisal manual, ESMA referred to the Staff Regulations and to the GIPs for Article 43. In addition, ESMA specified that, in the event of a conflict between the GIPs for Article 43 and the appraisal manual, the Staff Regulations and the GIPs for Article 43 were to be the legally binding texts.

61      Furthermore, in the appraisal manual, it is stated that one of its legal bases is the decision of 23 January 2014.

62      Accordingly, the applicant cannot maintain that the appraisal manual constitutes general implementing provisions adopted by ESMA by way of derogation from the GIPs for Article 43. It also follows that ESMA was not obliged to comply with the requirements of Article 110(2) of the Staff Regulations and, in particular, to consult its staff committee before adopting that manual. Furthermore, the applicant cannot criticise ESMA for the fact that the appraisal manual was not published in the register of rules adopted to give effect to the Staff Regulations, since, under Article 110(6) of the Staff Regulations, such publication is reserved for the implementing rules to give effect to the Staff Regulations, including the general implementing provisions.

63      Even if it is established that the applicant did not have access to the decision of 23 January 2014, that is not capable of affecting that assessment. The applicant has not referred to any rule of law from which it would follow that he should have had access to that decision. Furthermore, it should be noted that the applicant referred, in an email sent to an employee of the human resources department on 10 March 2015, to the decision of 23 January 2014 and to the Commission’s implementing rules applicable by analogy to ESMA. In any event, the legal classification of the appraisal manual cannot vary according to the applicant’s knowledge of the applicable regulatory framework.

64      In so far as, by his arguments, the applicant also seeks to establish that the appraisal manual is contrary to the GIPs for Article 43, it is necessary to examine whether that is the case.

65      In that regard, it should be noted that, according to the case-law, there is nothing in principle to prevent ESMA from drawing up rules, by means of an internal decision of general effect, to govern the exercise of the broad discretion conferred on it by the Staff Regulations (see. to that effect, judgment of 14 November 2017, Vincenti v EUIPO, T‑586/16, EU:T:2017:803, paragraph 30). Moreover, an internal directive must be regarded as an indicative rule of conduct which the administration imposes on itself and from which it may not depart without stating the reasons which have led it to do so (see. to that effect, judgment of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 60 and the case-law cited).

66      In the present case, in particular in its fifth part entitled ‘Main elements of the Appraisal exercise’, the appraisal manual contains a number of rules governing ESMA’s broad discretion in appraising staff members. Specifically, that manual contains clarifications on the setting of individual objectives (see Sections 5.1 and 5.2), on the determination of the criteria for assessing whether the objectives set have been attained (see Sections 5.2 and 5.3), on ESMA’s core characteristics, used as common appraisal standards (see Section 5.4.1), and on the common appraisal criteria relating to the three appraisal categories, namely ability, efficiency and conduct in the service (see Section 5.4.2).

67      Therefore, the appraisal manual may be classified as an internal directive within the meaning of the case-law cited in paragraph 65 above. It also follows that that document cannot be regarded as being of only informative value, as ESMA maintains.

68      In that context, it should be noted that the right to resort to internal directives is subject to certain restrictions and, in particular, to the obligation to observe the principle of the hierarchy of norms. An internal directive is a norm of a lower order than the Staff Regulations and the provisions adopted for their implementation (see judgment of 14 November 2017, Vincenti v EUIPO, T‑586/16, EU:T:2017:803, paragraph 30 and the case-law cited).

69      Therefore, the appraisal manual cannot lawfully lay down rules which derogate from the provisions of the Staff Regulations or from the GIPs for Article 43 and it is in that light that the applicant’s arguments must be examined.

70      First, as regards the contradiction alleged by the applicant between recourse to the principle of management by objectives and Article 5 of the GIPs for Article 43, it should be noted at the outset that Article 5 of the GIPs for Article 43 provides that the individual qualitative appraisal is to be based on the ability, efficiency and conduct in the service of the jobholder, taking account of the context within which the jobholder has performed his or her duties.

71      It is therefore necessary to examine whether the reference in the appraisal manual to the principle of management by objectives is incompatible with the principles set out in Article 5 of the GIPs for Article 43.

72      In that regard, it should be noted that it is apparent both from the introduction and from Section 5.4.2 of the appraisal manual that the individual qualitative appraisal within ESMA is based on the ability, efficiency and conduct in the service of the jobholder. The manual therefore reproduces the wording of Article 5 of the GIPs for Article 43.

73      The fact that ESMA chose to take account, in the context of the appraisal, of the individual objectives set for the person appraised and of the criteria for assessing whether those objectives have been attained (see Sections 5.1 to 5.3 of the appraisal manual) does not establish that the appraisal manual is unlawful. Recourse to the setting of objectives and to the taking into account of the results attained are relevant factors in appraising a jobholder’s performance during a given period.

74      Nor, moreover, does the fact that the setting of objectives at ESMA is governed by the principle of management by objectives, as is apparent from Section 5.1 of the appraisal manual and Annex II to that manual, lead to any other conclusion. Contrary to what the applicant claims, the detailed manner in which the principles governing the setting of individual objectives are presented does not mean that the individual appraisal of the jobholder is not based on the three appraisal criteria identified in Article 5 of the GIPs for Article 43. Moreover, nothing in the GIPs for Article 43 prohibits, in the context of the appraisal, the individual objectives set from being taken into consideration.

75      Accordingly, this complaint cannot succeed.

76      Second, the applicant maintains, in essence, that the common appraisal standards, set out in Section 5.4.2 of the appraisal manual, are contrary to Article 5 of the GIPs for Article 43, in so far as those criteria are intended to facilitate, inter alia, the comparison of individual appraisals within the same grade, whereas, under Article 5 of the GIPs for Article 43, the individual qualitative appraisal is not to include a comparison with the performance of other individual jobholders.

77      In that regard, it should be noted, as ESMA states, that it is apparent from the introduction of the appraisal manual that the individual qualitative appraisal cannot include a comparison with the performance of other individual jobholders.

78      Furthermore, it is apparent from Section 5.4.2 of the appraisal manual that the common appraisal standards, in the form of behavioural indicators and corresponding to each of the three appraisal headings (ability, efficiency and conduct in the service), were adopted with the aim of harmonising appraisals and facilitating the fair and consistent appraisal of ESMA staff. The definition of those criteria, as a methodology applied in the context of the appraisal, does not involve a direct comparison of the performance of different jobholders during the appraisal period, but seeks to ensure transparency during the appraisal process and equal treatment of the persons appraised.

79      It is true, as the applicant observes, that it is stated in the second paragraph of Section 5.4.2 of the appraisal manual that the common appraisal standards are also intended to make it easier to compare individual appraisals within a grade. However, that does not mean that the individual qualitative appraisal includes a comparison with the performance of other individual jobholders in the context of the appraisal itself. The sentence in question highlights that a harmonised framework enabling individual performance to be compared at a later stage, for the purposes, for example, of reclassifying ESMA staff to higher grades or of contract renewal, has been established.

80      Accordingly, the present complaint must be rejected.

81      Third, as regards the absence of information on staff representatives and on the way in which the appraisal procedure must take their tasks into consideration, it is sufficient to note, as ESMA maintains, that the GIPs for Article 43 are applied by ESMA by analogy (see paragraphs 58 to 62 above) and that, consequently, it was not necessary to provide additional information on the appraisal of staff representatives in the appraisal manual.

82      The circumstance relied on by the applicant relating to features specific to ESMA does not preclude a finding that the GIPs for Article 43 are applicable by analogy. Furthermore, the possible absence of certain details in the appraisal manual, assuming that they are necessary in the context of the appraisal of staff committee members, is not capable of leading to the finding that the manual is, on account of that omission, contrary to the GIPs for Article 43.

83      It follows that this complaint must also be rejected, as must, therefore, the first plea in its entirety.

2.      The second plea in law, alleging (i) manifest errors of assessment by ESMA in its assessment of the applicant’s main activities and (ii) errors in the assessment of his activities as staff representative

84      According to the applicant, the 2016 appraisal report is based on several errors as regards the appraisal of his main activities and that of his other activities. The second plea is therefore composed of two parts.

(a)    First part of the second plea in law, concerning the assessment of the applicant’s main activities

85      As regards the assessment of his main activities, the applicant alleges manifest errors of assessment concerning the three appraisal criteria.

86      As regards the ‘Efficiency’ criterion, the applicant considers that the assessment of the three objectives that had been set for him, as defined in the 2015 appraisal report, is incorrect. As regards the first objective, the applicant submits that his drafting skills were assessed in a manifestly incorrect manner. Moreover, in relation to the second and third objectives, the applicant calls into question the assessments concerning the lack of adequate planning and delays in the delivery of work relating to peer reviews. He also disputes that the documents drafted had to be heavily revised.

87      As regards the ‘Ability’ criterion, the applicant claims that the reporting officer merely repeated comments already made in relation to the second and third objectives in the assessment of his efficiency. The applicant therefore refers to his comments regarding those objectives.

88      As regards the ‘Conduct in the service’ criterion, the applicant contends that his reporting officer made general negative comments and referred, in essence, to comments already made in relation to the second objective in the assessment of his efficiency. The applicant therefore refers to his arguments concerning the second objective.

89      ESMA disputes those arguments.

90      As a preliminary point, it should be noted that appraisal reports contain assessments which can give rise to judicial review only in order to ensure 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 by persons who are required to draw up those documents. In other words, reporting officers have the widest discretion when judging the work of people whom they are responsible for assessing and it is not for the Court to review the merits of that assessment, containing complex value judgments which, by their nature, are not susceptible of objective verification, except in the event of manifest error (see. to that effect, judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 160 and the case-law cited).

91      Moreover, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of an appraisal report, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 161 and the case-law cited).

92      As regards more particularly the judicial review of assessments in staff reports, it should be added that there is all the more reason to restrict that review to manifest error since the General Court is not directly familiar with the situation of the staff members appraised, whereas the appraisal procedure includes administrative safeguards (see. to that effect, judgment of 11 December 2014, DE v EMA, F‑103/13, EU:F:2014:265, paragraph 58).

93      It is in the light of those principles that the various arguments put forward by the applicant in support of the first part of the second plea in law, relating to the three appraisal headings, must be examined.

(1)    The ‘Efficiency’ heading

(i)    The first objective

94      It is apparent from the 2016 appraisal report that the first objective set for the applicant was to act as rapporteur to complete the prospectus peer review, with a particular focus on ensuring drafting quality, smooth interaction with the national competent authorities (‘the NCAs’) under review, the ability to elaborate on the findings of the report as well as timely publication of the reports. The performance indicator specified for that purpose reads as follows: ‘Draft (and present) a note for a [Policy and Strategy Meeting in ESMA] presenting the main findings of the peer review and seeking guidance before the conclusions are agreed by the Assessment Group (before the early May [ESMA’s Supervisory Convergence Standing Committee] meeting)’.

95      As regards the first objective, the reporting officer stated in the 2016 appraisal report that the applicant’s outcome had proved unsatisfactory due to a lack of understanding of the issues under consideration. She stated that the applicant had failed, in the note referred to in the performance indicator (‘the note at issue’), to distinguish material from non-material findings and to elaborate on them. She also stated that both in the note at issue and at the Policy and Strategy Meeting (‘the PSM’), the applicant had been unable to put in perspective the points provided by the Assessment Group and to explain them further. She added that the applicant had not moreover sought guidance on the note at issue. In addition, she considered, in essence, that the applicant’s performance had not enabled the issues that arose before the meeting of the Board of Supervisors (‘the BoS’) to be prepared and had led to a substantial restructuring and redrafting of the summary of the prospectus peer review report (‘the summary at issue’). She added that the review of the accuracy of the information contained in that report (‘the report concerned’) and its editorial presentation were unsatisfactory. More specifically, she referred to factual errors in the tables and tables of contents of the on-site inspection reports.

96      The arguments raised by the applicant cannot render implausible the assessments made by the reporting officer with regard to the note at issue and the report concerned.

97      In the first place, as regards the note at issue, it should be observed that the applicant puts forward, in essence, three arguments.

98      First, the applicant claims that it was the very first time that he had to draft a note for a PSM and that he had not yet participated in such meetings.

99      In that regard, it should be noted that the PSM is a weekly meeting of the ESMA management team that reviews draft documents for the BoS and gives instructions to ESMA staff about them.

100    Even if the applicant was required to prepare a note for a PSM for the first time and he had not participated in such a meeting previously, that could not call into question the assessment relating to the note at issue in the 2016 appraisal report. The applicant had been serving as a senior officer at ESMA for several years and was therefore familiar with the applicable procedures and with the expectations held of a senior officer. Accordingly, the task in question falls within a context known to the applicant.

101    In any event, it is common ground that the applicant had already participated in a PSM in May 2014. In addition, it is not disputed that the applicant was asked, in 2014, to draft a note setting out the findings of a peer review on best execution and the procedure to be followed in the context of a PSM.

102    Consequently, the applicant’s first argument cannot succeed.

103    Second, the applicant submits that the note at issue, setting out the main findings of the report concerned, had been approved by the coordinator of the Assessment Group and by that group itself and that its members were, except for him, prospectus field experts.

104    In that regard, it should be noted that the reporting officer did not criticise the main findings reached by the Assessment Group, but criticised the applicant for the fact that his personal assessment of those findings was deficient. Consequently, it is irrelevant whether the main findings of the report concerned had been approved by the coordinator of the Assessment Group or by that group itself. Furthermore, in so far as the applicant argues that the members of that group had also approved the note at issue itself, it is sufficient to observe that that fact does not in itself mean that the assessment set out in the 2016 appraisal report is vitiated by a manifest error of assessment. Since it was an internal note, it was exclusively for the applicant’s line managers to assess, in the light of the objectives pursued by that note, the quality of the applicant’s performance in the exercise of his duties.

105    Consequently, the applicant’s second argument cannot succeed.

106    Third, the applicant submits that, in the context of the PSM, he did not himself have the opportunity to present the note at issue or to reply to questions. In addition, he submits that his reporting officer made no comment on that note before it was presented to the PSM. He also claims that it has not been demonstrated (i) that his reporting officer had submitted comments on the note at issue prior to the PSM and (ii) that ESMA’s Policy Officer, acting as secretary of the PSM, had sent him critical remarks on that note by email.

107    In that regard, it should be recalled that it is apparent from the case-law cited in paragraph 91 above that it is for the applicant to adduce sufficient evidence to make the findings of the administration implausible.

108    In the present case, the applicant’s arguments consist of allegations which are not supported by any evidence. The applicant, criticising the lack of prior comments on the note at issue by his reporting officer, does not submit, in particular, any evidence from which it could be concluded that he had sent that note to the latter for possible comments before it was communicated to the secretariat of the PSM.

109    In addition, it is apparent from the documents before the Court that both the secretary of the PSM and the applicant’s reporting officer briefly took a position on the note at issue before the PSM was held, in the course of which that note was discussed, namely on 25 April 2016. It should also be observed that the applicant does not dispute that his reporting officer was on leave the week preceding the PSM in question. Accordingly, she cannot be criticised for not having submitted her first comments on the note at issue before her first day of work following her leave, namely on 25 April 2016. Furthermore, it is apparent from the documents before the Court that it was open to the applicant to request the inclusion of the note at issue at the PSM on 2 May 2016, which would have enabled him, as ESMA argues, to obtain the comments of his reporting officer, which, moreover, he did not do.

110    Lastly, the applicant has not established that, in the context of the PSM, he did not have the opportunity to present the note at issue or to reply to questions.

111    Consequently, the applicant’s third argument cannot succeed.

112    In those circumstances, the arguments put forward by the applicant in relation to the note at issue are not capable of establishing the existence of a manifest error of assessment.

113    In the second place, as regards the report concerned, the applicant puts forward, in essence, five arguments.

114    First, the applicant claims that it was wrongly claimed, in the 2016 appraisal report, that the main part of the report concerned had been redrafted for the BoS. He states that certain changes were made to the summary at issue, but not to the report itself.

115    In that regard, it should be noted that the assessment set out in the 2016 appraisal report relating to the restructuring and redrafting of the report concerned relates, in essence, to the summary of that report (see paragraph 95 above).

116    Admittedly, the reporting officer’s criticism also relates to shortcomings connected with the review of the accuracy of the information contained in the report concerned and with its editorial presentation, which were compensated by the applicant’s colleagues and the reporting officer herself. However, those observations do not concern a redrafting of the text of the report concerned in its entirety.

117    The applicant’s first argument is therefore based on a misreading of the 2016 appraisal report and cannot, therefore, succeed.

118    Second, the applicant claims that the summary at issue had been approved by the Assessment Group and had been reviewed by a member of that group who was a native English speaker, and a member of an NCA.

119    In that regard, it should be noted that it is apparent from the documents before the Court, and in particular from an email sent to the applicant by ESMA’s executive director on 16 May 2016, that the main weaknesses noted in the summary at issue related to the drafting quality and, as regards its content, more particularly, to the limited findings drawn from the peer review concerned. That is also apparent, in essence, from an email sent to the applicant by his reporting officer on 23 March 2016. It should also be pointed out that the applicant, as the rapporteur for that review for ESMA, had been responsible for drafting the summary at issue, which he does not dispute. In addition, it should be noted that, in the context of the first objective, the applicant had been clearly asked to focus on the drafting quality of the report concerned and on the ability to elaborate on the findings of that report.

120    Moreover, it is apparent from a document submitted by ESMA that the summary at issue underwent considerable changes between the original version prepared by the applicant and its final version.

121    In those circumstances, the applicant’s argument that the summary at issue was approved by the Assessment Group and was revised by an English-speaking member of that group cannot call into question the assessments in the 2016 appraisal report.

122    Third, the applicant claims, in essence, that ESMA had decided to change the structure of the summary, but not its content.

123    In that regard, it is sufficient to note that it is apparent from the documents before the Court that, at its meeting of 25 May 2016, the BoS decided that the summary at issue should be improved. Since that finding necessarily has an impact on the content of the summary, the applicant’s argument cannot succeed.

124    Fourth, the applicant claims that the part of the summary at issue criticised by the reporting officer consisted of only four pages and that the other part of that summary, containing a summary of the findings of the report concerned and amounting to four and a half pages, had not been mentioned in the 2016 appraisal report. He states that approximately 90% of that report was approved by the BoS, which indicates that the final product was of very good quality.

125    In that regard, it should be noted that, as ESMA states, the report concerned was the result of collective work, to which several experts in the Assessment Group concerned contributed. Moreover, it should be recalled, as is apparent from the first objective set for the applicant (see paragraph 94 above), that the applicant, as rapporteur, had the task of coordinating the data and texts produced by others and to draft the summary at issue. Therefore, the reporting officer was right to focus, in the 2016 appraisal report, on the applicant’s direct input on the collective work of drawing up the report concerned.

126    Fifth, as regards the tables annexed to the report concerned (‘the tables at issue’), the applicant submits that they had been sent to all the NCAs for verification and that none of the NCAs had pointed to any factual errors in those tables. In addition, he draws attention to the existence of problems in the formatting and loss of data caused by the conversion of the PDF format tables following the departure of a colleague who was responsible for those tables. He states that the reporting officer was aware of those difficulties. He also argues that he cannot be criticised for work which was not entrusted to him. He adds that the reporting officer had asked other colleagues, in his absence and without his being aware, to deal with those tables.  

127    In that regard, it should be noted that the reporting officer criticised the applicant for the fact that the review of the accuracy of the information in the report concerned was unsatisfactory and referred, by way of example, to factual errors in the tables at issue (see paragraph 95 above).

128    As was already mentioned in paragraph 125 above, the applicant, as rapporteur, had the task of coordinating the data and texts provided by the experts on the subject under review. Therefore, the reporting officer cannot be criticised for having considered that the applicant was also responsible, as a diligent rapporteur, for checking the data in the tables at issue before the report concerned was sent for approval. He should have detected, at the very least, obvious errors, without such a task being expressly allocated to him. In that context, it should be noted that certain errors could be easily identified, as is apparent from an email from an ESMA employee which is included in the documents before the Court.

129    Furthermore, the applicant has not adduced any evidence to support the conclusion that his reporting officer was aware of any difficulties connected with compiling the tables at issue.

130    As regards the verifications carried out by other persons at the request of the reporting officer, it should be noted that they took place following discussion of the report concerned within the BoS, and thus after the applicant submitted the report, in order to respond to shortcomings raised by an employee of ESMA in connection with the finalisation of that report. Since it is common ground that the applicant was absent at that time, the reporting officer cannot be criticised for not entrusting that task of verification to him.

131    In those circumstances, the fifth argument concerning the report concerned is also incapable of calling into question the assessments set out in the 2016 appraisal report.

132    In the light of all the foregoing, it must be held that the arguments put forward by the applicant as regards the assessments relating to the first objective set for him are not capable of establishing the existence of a manifest error of assessment.

(ii) The second objective

133    It is apparent from the 2016 appraisal report that the second objective set for the applicant was to follow up peer reviews on the implementation of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1) (‘the MiFID’), and concerning, more specifically, the rules of conduct and best execution.

134    To that end, two performance indicators were identified.

135    According to the first indicator concerning the peer review of the MiFID rules of conduct, the applicant was required to draft follow-up letters to be sent to non-compliant authorities, entailing a review by ESMA expert staff, by early June, to analyse the responses and to draft a note for ESMA’s Supervisory Convergence Standing Committee (‘the SCSC’) for the end of October in order to propose a way forward.

136    According to the second indicator relating to the peer review on best execution of the MiFID, the applicant was asked to prepare a note for the SCSC members, which entailed a review by ESMA expert staff, explaining why a follow-up might not be appropriate in view of the BoS meeting in July 2016.

137    As regards the second objective, the reporting officer stated, in the 2016 appraisal report, that the applicant’s work was characterised by inadequate planning and considerable delays. She stated that the letters referred to in the first indicator had had to be postponed by at least two months and that the work referred to in the second indicator had had to be temporarily handed over to another colleague in order to ensure that progress was made. In addition, while emphasising the positive aspects of the applicant’s work, the reporting officer observed that the applicant’s work had required fundamental amendments and redrafting. More specifically, she noted, in the context of the second objective, weaknesses relating to the accuracy and relevance of the analysis and the ability to deal with complex issues.

138    The arguments raised by the applicant cannot render those assessments implausible.

139    In that respect, in the first place, as regards the arguments put forward by the applicant in response to the lack of planning and the delays in carrying out tasks alleged against him, it should be noted, first, that, apart from the fact that the applicant does not specify which of the two indicators referred to in the second objective is concerned by his argument that, in view of the length of the NCAs’ responses, he was asked to make adjustments to the planned timetable, he has not established that an extension had been granted to him by the SCSC and the BoS, for the reasons that he states.

140    In addition, in so far as, by his argument, the applicant refers to the alteration to the planned timetable for the follow-up of the peer review on best execution of the MiFID, it should be noted that it is apparent from the reporting officer’s notes of the mid-term dialogue meeting that the delay for which the applicant is criticised as regards the second indicator, namely the failure to submit a draft note in timely fashion for the BoS meeting in July 2016, was caused by the applicant himself and that, accordingly, the timetable had to be modified and the follow-up work at issue had to be temporarily reallocated to another colleague, something which the applicant does not explicitly dispute. Furthermore, at that time, the length of the NCAs’ responses, due by the end of September 2016, was not yet known and could not therefore be the main reason for altering the initial work timetable connected with the follow-up to the peer review concerning best execution of the MiFID.

141    Second, in so far as the applicant claims that the follow-up letters to the peer review concerning the MiFID rules of conduct, referred to in the first indicator of the second objective, had been drawn up at the beginning of June 2016, as indicated in that objective, and that the delay in sending those letters had been caused by the reporting officer, it is sufficient to recall that it is not disputed that the applicant sent a draft of those letters to his reporting officer on 6 June 2016 and, thus, within the period provided for in the first indicator of the second objective. However, it is apparent from the reporting officer’s notes of the mid-term dialogue meeting that the letters in question could not be sent out until September 2016, since they had to be substantially redrafted. In addition, it is apparent from the documents before the Court that the drafts of those letters were in fact significantly amended by the reporting officer. Accordingly, in view of the deficiencies in the drafts of those letters, as they appear from the documents before the Court, and in the absence of any evidence adduced by the applicant to support the conclusion that those deficiencies cannot be attributed to him, it must be held that the assessments at issue are not vitiated by a manifest error of assessment.

142    In the second place, as regards the second indicator of the second objective, it should be noted that it is stated in the 2016 appraisal report that, until 9 June 2016, the applicant had not sent any contribution in relation the follow-up to the peer review on best execution of the MiFID to his reporting officer, which the applicant does not dispute. In addition, it is stated in that report that it was envisaged that the note requested of the applicant would be discussed by the BoS at its meeting of 12 July 2016, which implied a revision of the draft drawn up by him and the prior consultation of the SCSC, and that, in the absence of any contribution from the applicant on 9 June 2016, the reporting officer had no choice but to entrust the task in question to another person in order to ensure that progress was made.

143    None of the arguments put forward by the applicant can call those assessments into question.

144    Even if the applicant was not informed of the fact that the task referred to in the second indicator of the second objective had been reallocated to another person, that fact is irrelevant for the purpose of determining whether the assessments in the 2016 appraisal report are vitiated by a manifest error of assessment.

145    Furthermore, as ESMA argues, in view of his knowledge of internal deadlines, the applicant cannot validly challenge the necessity that the draft note requested be submitted by early June 2016 at the latest so that the written procedure allowing consultation of the SCSC could be completed in timely fashion before the documents for the BoS meeting in July 2016 were sent out.

146    Lastly, as regards the lack of instructions from the reporting officer for the second indicator of the second objective, it is sufficient to note that it is not established that the applicant had requested such instructions. Furthermore, in performing the duties of a senior officer, the applicant could reasonably be expected to work independently and to ask for instructions if necessary.

147    In the third place, the applicant submits that no negative comment had been made on the report following up on the peer review on best execution of the MiFID (‘the follow-up report at issue’), either by the BoS or by the media. He also refers to the findings of the European Commission’s Internal Audit Service of 9 June 2017 concerning the NCA peer reviews within ESMA, and states that those findings do not contain any complaints. In addition, the applicant disputes that his contribution to the follow-up report at issue was substantially redrafted.

148    In that regard, it should be pointed out, as ESMA argues, that the follow-up report at issue was the result of collective work in which several experts had participated. Therefore, any quality of that report is not indicative of the quality of the applicant’s contribution to drawing up the report.

149    Furthermore, it must be stated that the arguments put forward by the applicant do not make it possible to understand which passages in the 2016 appraisal report are criticised.

150    In any event, it is apparent from the documents before the Court that the draft follow-up report at issue prepared by the applicant was substantially redrafted by his team leader, a circumstance which is the subject only of generic and unsubstantiated challenges by the applicant. Furthermore, as regards the reference made by the applicant to two oral presentations which he made at a meeting of the SCSC in November 2016 which were commented on positively by the reporting officer, it must be held that no useful conclusion can be drawn from those presentations as regards the quality of the applicant’s contribution to the follow-up report at issue.

151    Lastly, as regards the internal audit referred to by the applicant which was carried out by the Commission’s Internal Audit Service, it is sufficient to note that that audit concerned procedures established in the context of peer reviews and not of individual performance. It follows that the results of that audit are not capable of calling into question the assessments in the 2016 appraisal report.

152    In the light of all the foregoing, it must be held that the arguments put forward by the applicant as regards the assessments relating to the second objective set for him are not capable of establishing the existence of a manifest error of assessment.

(iii) The third objective

153    It is apparent from the 2016 appraisal report that the third objective set for the applicant related to mandatory peer reviews. According to the performance indicator specified for that purpose, the applicant was required to draft a proposal on the methodology for mandatory peer reviews. As regards the timetable to be observed, reference was made to the SCSC work plan.

154    As regards that objective, the reporting officer stated, in the 2016 appraisal report, that the applicant’s work was characterised by inadequate planning and considerable delays. She specified that the deadline for submission of the proposal referred to in the indicator of the third objective had had to be extended by at least two months. In addition, while emphasising the positive aspects of the applicant’s work, the reporting officer identified, in the context of the third objective, deficiencies relating to attention to detail and the drafting of quality recommendations.

155    The applicant claims that the delay in drafting the methodology resulted from facts which were not his responsibility, since the Assessment Group members did not accept ESMA’s key role in the mandatory peer reviews, which had led to longer discussions than expected. The applicant further claims that delays were also caused by proposals from the reporting officer, exchanges with the ESMA Market Department and revisions from his team leader, who took up her duties in September 2016. Furthermore, the applicant points out that his work relating to the third objective was appreciated and that the drafting proposals had not been the subject of negative comments by ESMA’s chairperson and the BoS members.

156    Those arguments do not reveal a manifest error of assessment as regards the findings in the 2016 appraisal report in relation to the third objective.

157    As a preliminary point, it should be noted that the reporting officer did not merely criticise the delay in drawing up the requested proposal. She also found that there had been inadequate planning and an unsatisfactory quality of performance.

158    As regards the arguments seeking to justify the delay in relation to the attainment of the third objective, it must be observed that it follows from that objective that the applicant was responsible for drafting a proposal on the methodology for mandatory peer reviews within the time limits set. As ESMA points out, the applicant was not responsible for the final approval of the methodology in question. As regards the timetable, ESMA states, without being contradicted by the applicant, that, according to the SCSC’s work plan, a note for the SCSC meeting of 4 May 2016 and another proposal for the approach to be followed for the meeting of that committee of 13 July 2016 should have been prepared by the applicant. Moreover, it is not disputed that the applicant did not contact his reporting officer until 27 July 2016 to ask for instructions concerning the handling of the task allocated in the context of the third objective and, therefore, more than two months after the first deadline. It is also apparent from the reporting officer’s notes of the mid-term dialogue meeting that deadlines had been changed and that the SCSC meetings referred to were thenceforth those of July and September 2016. It is also stated that the applicant did not comply with those deadlines either and that the timetable had to be adjusted accordingly.

159    Moreover, it must be stated that the applicant’s arguments aimed at justifying the delays are not substantiated and are, at least in part, based on delays relating to the process of approving the methodology in question.

160    In those circumstances, the applicant’s arguments are not capable of justifying the delay in drawing up the note which should have been initially discussed in the context of the SCSC meeting of 4 May 2016 and do not therefore permit a finding that there was a manifest error of assessment in that regard.

161    The applicant’s arguments aimed at calling into question the assessments relating to the unsatisfactory quality of his performance cannot succeed either.

162    First, those arguments lack precision. Second the absence of any negative comments from ESMA’s chairperson and the BoS members on the applicant’s proposals is inconclusive as regards their quality, since those proposals could already have been amended following observations made by the applicant’s direct superiors, which, according to ESMA, was the case in this instance.

163    In the light of all the foregoing, the arguments put forward by the applicant concerning the assessments relating to the third objective set for him must be rejected. It also follows that none of the complaints relating to the heading ‘Efficiency’ can succeed.

(2)    The headings ‘Ability’ and ‘Conduct in the service’

164    As regards the heading ‘Ability’, the applicant submits that the reporting officer’s comments on that criterion are limited to a repetition of the comments already made in relation to the second and third objectives in the context of the assessment of his efficiency. The applicant therefore refers to his comments regarding those objectives. According to the applicant, the same applies as regards the heading ‘Conduct in the service’, adding that the reporting officer made only general negative comments in that regard.

165    In the absence of independent arguments and in the light of the analysis relating to the arguments concerning the heading ‘Efficiency’, it must be held that the assessments relating to the headings ‘Ability’ and ‘Conduct in the service’ are not vitiated by a manifest error of assessment.

166    It follows that the first part of the second plea in law must be rejected as unfounded.

(b)    Second part of the second plea in law, concerning the appraisal of the applicant’s activities as a staff representative

167    The applicant maintains that no appraisal was carried out in so far as concerns his activities as a staff representative and, consequently, the 2016 appraisal report was incomplete. He adds that the reporting officer was not entitled, without making a manifest error of assessment and disregarding the rights of staff representatives, to appraise his overall performance in 2016. He states that the reporting officer indicated incorrectly that she had consulted the ‘ad hoc group’, since such a group does not exist within ESMA and that, in any event, consultation of such a group would amount to asking him to assess his own performance as staff representative.

168    ESMA disputes those arguments.

169    ESMA maintains that it was not possible to assess the applicant’s performance as staff representative because the reporting officer was not able to obtain any input in that regard. It states that the absence of an ad hoc group, which should have been established by the staff committee, cannot be blamed on the reporting officer and that the consultation of the other staff representative does not amount to self-assessment by the applicant himself.

170    In that regard, it should be noted that the reporting officer stated, in the 2016 appraisal report, that the applicant had assumed staff representation duties on the staff committee during the year in question. In addition, she stated that she had consulted, on 22 February 2017, the ‘ad hoc group’ which had to be established by the staff committee and had not received any input by the deadline for submitting appraisal reports, namely 1 March 2017.

171    As a preliminary point, it should be borne in mind that it is apparent from the first sentence of the sixth paragraph of Article 1 of Annex II to the Staff Regulations that the duties undertaken by members of the staff committee are deemed to be part of their normal service in their institution. That provision is designed to facilitate the participation of officials and staff members in staff representation, by enabling them, in particular, to carry out those duties within the working time prescribed for their normal service in their institution, and not in addition to it (see. to that effect, judgment of 16 December 2010, Lebedef v Commission, T‑364/09 P, EU:T:2010:539, paragraph 23). Furthermore, the second sentence of the sixth paragraph of Article 1 of Annex II to the Staff Regulations is intended to safeguard the rights of members of the staff committee by protecting them from any harm they might suffer because of their activities as staff representatives under the Staff Regulations. That is, in particular, the reason why staff representation activities must be taken into consideration when drawing up the staff reports of the officials and staff members concerned (see. to that effect, judgments of 26 September 1996, Maurissen v Court of Auditors, T‑192/94, EU:T:1996:133, paragraph 41, and of 5 November 2003, Lebedef v Commission, T‑326/01, EU:T:2003:291, paragraph 49).

172    Where the institution in question has not adopted a specific system for the appraisal of officials and members of staff engaged in staff representation activities, reporting officers are not empowered to assess those activities (see judgment of 5 November 2003, Lebedef v Commission, T‑326/01, EU:T:2003:291, paragraph 51 and the case-law cited). In view of the fact that the person concerned can perform the duties connected with his or her post only for a number of days less than the normal number of working days during the reference period, that performance must be evaluated on the basis of the performance actually produced during the time devoted to the service to which he or she has been assigned (judgment of 26 September 1996, Maurissen v Court of Auditors, T‑192/94, EU:T:1996:133, paragraph 41).

173    The situation is different where an ad hoc assessment system, such as that provided for at the Commission, has been set up (see. to that effect, judgment of 5 November 2003, Lebedef v Commission, T‑326/01, EU:T:2003:291, paragraph 52). In such a case, the specific rules governing the appraisal of officials and other members of staff performing staff representation activities must be applied.

174    As regards ESMA, it should be borne in mind that the GIPs for Article 43 have been applicable to it by analogy since January 2014 (see paragraphs 58 and 59 above). Therefore, ESMA was also required to apply by analogy point 5 of Annex I to the GIPs for Article 43, concerning the appraisal of the performance of staff representatives, as acknowledged by ESMA in its written pleadings. More specifically, since it is not disputed that the applicant was not exempted from performing his duties in a service, the rules laid down in point 5.5 of Annex I to the GIPs for Article 43 were applicable to him by analogy.

175    Under point 5.5 of Annex I to the GIPs for Article 43, reports relating to jobholders who have been elected to represent staff, without having been exempted from the obligation to perform their duties in a department, are to be drawn up by the reporting officer in the service to which they are assigned. In this point, it is also stated that the reporting officer is to consult the ad hoc group for the appraisal and promotion of staff representatives (‘the Commission’s ad hoc group’), whose opinion constitutes a contribution to the appraisal report. The purpose of consulting the Commission’s ad hoc group is to provide reporting officers with the information they need to assess the duties which individual jobholders perform as staff representatives, given that those duties are deemed to be part of their normal service in their institution (see. to that effect, judgment of 5 November 2003, Lebedef v Commission, T‑326/01, EU:T:2003:291, paragraph 54).

176    It follows that the reporting officer was required before completing the 2016 appraisal report to consult a body set up at ESMA equivalent to the Commission’s ad hoc group (‘ESMA’s ad hoc group’) concerning the applicant’s performance of staff representation duties and to take account of its opinion when drawing up that report.

177    In the present case, it is common ground that input to the 2016 appraisal report, referred to in point 5.5 of Annex I to the GIPs for Article 43 and relating to the applicant’s staff representation activities, was not obtained.

178    Accordingly, it is necessary to examine whether, in the absence of an appraisal of the activities carried out by the applicant as a staff representative, the 2016 appraisal report must be regarded as incomplete, as the applicant claims.

179    ESMA disputes those arguments, contending, in essence, that no ad hoc group was set up by the staff committee and that, in the absence of any input from such a group, the 2016 appraisal report cannot be regarded as incomplete.

180    It is not disputed that the staff committee, composed during the appraisal procedure for 2016 of two members, namely Mr [confidential] and the applicant, did not in fact designate the members of the ad hoc group referred to in point 5.5 of Annex I to the GIPs for Article 43 which is applicable by analogy to ESMA.

181    At the hearing, the applicant submitted that the absence of that designation was due to difficulties connected with the application of the GIPs for Article 43 by analogy within ESMA and to the lack of measures or guidance adopted by ESMA to implement those GIPs in terms of assessing the activities carried out as members of the staff committee.

182    It is not apparent from the file that ESMA attempted to clarify, in consultation with its staff committee and in timely fashion before the launch of the 2016 appraisal exercise, which body could be considered, having regard to the particular features of ESMA, to be equivalent to the Commission’s ad hoc group, so that the members of that body could then be designated by the staff committee. In that context, it should be noted that, as is apparent from point 5 of Annex I to the GIPs for Article 43, the Commission’s ad hoc group is composed of 16 members and that it was inconceivable that ESMA’s ad hoc group could be composed in the same manner, having regard to the organisation of staff representation within ESMA and to the structure of its staff committee, which consisted of only two members.

183    In response to a written question from the Court, first, ESMA merely referred to an email sent to the staff committee by an employee of the human resources department on 20 January 2017, requesting that the names of the members of ESMA’s ad hoc group be communicated. Second, it referred to the note of 23 January 2017 relating to the launch of the appraisal exercise for 2016, mentioning the obligation for the reporting officers of the permanent and alternate members of the staff committee to consult ESMA’s ad hoc group and the staff committee’s obligation to set up such a group. It has not been claimed or proved that the administration chased up the staff committee in this regard or attempted to organise a meeting with that committee in order to unblock a situation which had persisted since 2014.

184    Next, it should be noted that, given that ESMA’s ad hoc group had not been set up, ESMA did not give clear instructions in advance to reporting officers as regards the inferences to be drawn from that situation in the appraisal reports concerned.

185    It is apparent from ESMA’s replies to the Court’s written questions that, when asked by the applicant’s reporting officer by email of 21 February 2017 about the existence of the ad hoc group and the person to be contacted, the member of staff of the human resources department responsible for appraisals confirmed to the applicant’s reporting officer that no ad hoc group had been set up by the staff committee and advised the reporting officer to send an email to the staff committee.

186    In addition, it is apparent from the documents before the Court that, following the response provided by the administration, the reporting officer sent, on 21 February 2017, an email to the functional mailbox of the staff committee requesting, by 27 February 2017, the input of ESMA’s ad hoc group concerning the work carried out by the applicant in 2016. Mr [confidential] replied to the reporting officer on 23 February 2017, stating that, as the applicant was on leave, he could not make progress on the report and that a reply would be given after the applicant had returned. In that context, it should be noted that the applicant was on annual leave from 16 February to 5 March 2017 and that, before his departure, the issue of the composition of the ad hoc group had not been resolved. It should also be noted that, in the absence of any input within the prescribed period, on 1 March 2017 the reporting officer submitted the 2016 appraisal report, without any assessment of the applicant’s duties as a staff representative having been carried out and taken into consideration.

187    In those circumstances, ESMA cannot maintain, moreover, that the reporting officer was misled by the staff committee as regards the existence of the ad hoc group. Accordingly, the passage in the 2016 appraisal report criticised by the applicant is indeed incorrect, since a group which had not been set up could not be consulted.

188    Moreover, it should be pointed out that the members of the staff committee took no steps following the applicant’s resumption of work on 6 March 2017 in relation to the reporting officer’s request of 21 February 2017.

189    Lastly, it is neither claimed nor established that, following Mr [confidential]’s email of 23 February 2017, the reporting officer requested further explanations or chased him or the staff committee up after the expiry of the deadline set by her for providing the input of ESMA’s ad hoc group. Nor is it apparent from the documents before the Court that ESMA or the staff committee attempted, at the stage of the appeal procedure or of the complaint procedure, to remedy the lack of appraisal of the applicant’s activities as a member of the staff committee.

190    However, as was already pointed out (see paragraphs 173 to 176), ESMA was required to apply point 5.5 of Annex I to the GIPs for Article 43 by analogy and, therefore, to implement it in such a way that the rights of the members of its staff committee stemming from the sixth paragraph of Article 1 of Annex II to the Staff Regulations were safeguarded and that their staff representation activities could be taken into consideration when their staff reports were drawn up. ESMA may therefore be considered to be responsible for any malfunctioning of the system thus applicable.

191    It also follows from this that ESMA should have clarified, in consultation with its staff committee and in timely fashion before the launch of the 2016 appraisal exercise, which body could be considered, having regard to the particular features of ESMA, to be equivalent to the Commission’s ad hoc group so that the members of that body could then be designated by the staff committee and its opinion could be duly taken into account by the reporting officers concerned. It should also have given clear information in advance on whether such a body existed and on the procedure to be followed by the reporting officers concerned. Moreover, ESMA did not attempt to remedy the failure to take into consideration an assessment of the applicant’s activities as a staff representative in the 2016 appraisal report at the stage of the appeal procedure or of the complaint procedure.

192    Thus, ESMA did not take all the measures enabling point 5.5 of Annex I to the GIPs for Article 43 to be applied by analogy. Accordingly, it is irrelevant whether the failure to set up ESMA’s ad hoc group can be imputed to the reporting officer herself.

193    So far as this point is relevant, it must be stated that, if, within ESMA, it was not possible to apply point 5.5 of Annex I to the GIPs for Article 43 by analogy, ESMA should, in accordance with the procedure laid down in the third subparagraph of Article 110(2) of the Staff Regulations, either have requested the agreement of the Commission not to apply the provision in question or submitted to the Commission for its agreement rules which differed from those applicable by analogy.

194    In the light of all the foregoing, the 2016 appraisal report must be regarded, in the absence of the contribution referred to in point 5.5 of Annex I to the GIPs for Article 43, as incomplete, in breach of the applicable rules.

195    Such a procedural irregularity may however lead to the annulment of the 2016 appraisal report only if it is shown that that irregularity could have had an influence on the content of that report (see. to that effect, judgments of 9 March 1999, Hubert v Commission, T‑212/97, EU:T:1999:39, paragraphs 53 and 54, and of 14 December 2017, Campo and Others v EEAS, T‑577/16, not published, EU:T:2017:909, paragraph 59). That is so in the present case, since the overall assessment of the applicant’s performance might have been different if the assessment of staff representation activities had been taken into consideration by the reporting officer. Even if, as ESMA maintained at the hearing, the applicant’s activities as a member of the staff committee did not exceed 20% of those tasks considered as a whole, it cannot be ruled out that a positive assessment of those activities was capable, at least to some extent, of balancing the assessment of the applicant’s activities in connection with his post, which was, in essence, acknowledged by ESMA at the hearing, and, consequently, of leading the reporting officer to find that an overall assessment of the applicant’s performance during 2016 was still satisfactory. In those circumstances, it must be held that the reporting officer did not have all the information necessary to enable her to carry out the overall assessment of the applicant’s performance.

196    Moreover, the incompleteness of the 2016 appraisal report prevents the Court from carrying out an examination of the overall assessment of the applicant’s performance in 2016 as to the substance.

197    It follows that the second part of the second plea in law must be upheld and the 2016 appraisal report annulled, without it being necessary to examine the third plea.

D.      The application for annulment of the decision to terminate the contract

198    In support of the application for annulment of the decision to terminate the contract, the applicant relies on six pleas in law.

199    The first plea in law alleges, in essence, failure to comply with the rules governing notification of the decision to terminate the contract, the second, infringement of the right to be heard, the third, infringement of the obligation to state reasons, the fourth, in essence, manifest errors of assessment, the fifth, infringement of the principle of proportionality, and the sixth, infringement of the duty to have regard for the welfare of officials and of the principle of good administration.

200    It is appropriate to start by examining the fourth plea in law.

201    In the fourth plea, the applicant challenges the legality of the decision to terminate the contract, in particular on the ground that that decision is based on the 2016 appraisal report which is vitiated by manifest errors of assessment, which follows from his action in Case T‑77/18.

202    ESMA disputes those arguments.

203    As a preliminary point, it should be noted that, even if indefinite contracts are different, in terms of security of tenure, from fixed-term contracts, it cannot be denied that EU civil service staff employed on the basis of an indefinite contract must be aware of the temporary nature of their engagement and the fact that it does not confer on them any guarantee of employment (judgment of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 84).

204    Next, it is apparent from Article 47(c)(i) of the CEOS that, apart from cessation on death, the employment of temporary staff, where the contract is for an indefinite period, is to cease at the end of the period of notice stipulated in the contract; the length of the period of notice may not be less than one month for each completed year of service, subject to a minimum of 3 months and a maximum of 10 months.

205    In that regard, it should be recalled that it is settled case-law that, with regard to the termination of a contract for an indefinite period held by a member of the temporary staff, the AECE has, pursuant to Article 47(c)(i) of the CEOS and subject to the period of notice contained in the contract, a broad discretion and the judicial review exercised by the European Union judicature must therefore be limited to whether there has been a manifest error or a misuse of powers (see judgment of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 76 and the case-law cited).

206    Moreover, an error may be said to be manifest only where it can be readily detected, in the light of the criteria to which the legislature intended the exercise by the administration of its discretion to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken as a result, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent (see. to that effect, judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 95 and the case-law cited).

207    It is in the light of those principles that it must be assessed whether the termination decision is vitiated by a manifest error of assessment in that it is, in particular, based on an incomplete appraisal report (see paragraphs 171 to 196 above) finding that the applicant’s performance was unsatisfactory, without ESMA’s AECE having before it all the necessary information.

208    In that regard, it should be noted that the AECE based the dismissal of the applicant in the decision to terminate the contract, in essence, on his unsatisfactory performance during two consecutive appraisal periods, namely during 2015 and 2016. It is also stated that the decision was taken after weighing the interest of the applicant against that of the service.

209    Moreover, it is apparent from the decision rejecting the complaint of 11 June 2018, the statement of reasons for which supplements that for the decision to terminate the contract and must be taken into consideration in the review of its legality, in view of the evolving nature of the prelitigation procedure (see. to that effect, judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraphs 31 to 35), that the termination of the applicant’s contract following the two appraisal reports showing performance considered unsatisfactory was not mandatory. Nevertheless, it is also observed that it was for the AECE to guarantee the highest level of staff ability, efficiency and integrity and to assess whether it was in the interest of the service to retain in his post a senior officer whose performance was manifestly inadequate.

210    Similar considerations emerge from both the email of 23 May 2017, by which ESMA’s executive director informed the applicant of her intention to terminate his contract, and the transcript of the meeting of 22 June 2017 concerning the possible termination of the applicant’s contract, in the version annotated by the applicant, which form part of the context in which the decision to terminate the contract was adopted.

211    It follows that the AECE gave as the reason for the decision to terminate the contract, in essence, the applicant’s performance which was considered unsatisfactory in his appraisal reports for two consecutive years, namely during 2015 and 2016, and by the interest of the service in having staff of the highest standard.

212    Next, it should be noted that, following the annulment of the 2016 appraisal report, the decision to terminate the contract is also inevitably vitiated by an error in so far as it expressly takes account of the overall assessment of the applicant’s performance set out in that report (see. to that effect, judgment of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraph 90).

213    In those circumstances, in order to assess the inferences to be drawn from that error, it is also necessary to determine to what extent the impossibility of taking into account the 2016 appraisal report is likely to affect the grounds of the decision to terminate the contract. In other words, the error found would be ineffective and accordingly would not be sufficient to warrant annulment of the decision to terminate the contract if it could not have had a decisive effect on the outcome of that decision (see. to that effect, judgment of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraphs 91 and 92).

214    In that regard, it must be borne in mind that the 2015 appraisal report, which was also taken into account in the decision to terminate the contract, was not challenged by the applicant within the time limits laid down for that purpose and that, consequently, under the case-law cited in paragraph 40 above, the matters in that report must be regarded as established. As was already stated (see paragraph 7 above), in the 2015 appraisal report, the level of the applicant’s performance was regarded by his reporting officer as unsatisfactory.

215    However, contrary to ESMA’s submissions in response to a question from the Court, the impossibility of taking the 2016 appraisal report into consideration on the ground of its annulment – having the effect of retroactively eliminating it from the legal order – is likely to have a decisive influence on the outcome of the decision to terminate the contract.

216    Both in the decision to terminate the contract and at the meeting of 22 June 2017 concerning the possible termination of the applicant’s contract, ESMA’s executive director emphasised the continuing nature of the applicant’s unsatisfactory performance over two consecutive appraisal periods. Since a period can no longer be taken into consideration following the annulment of the 2016 appraisal report, the grounds of the decision to terminate the contract, based on underperformance over a period of two years, are substantially affected.

217    Furthermore, the fact that the decision to terminate the contract was taken only after the rejection of the applicant’s complaint against the 2016 appraisal report, which follows expressly from that decision, demonstrates the importance attached by the AECE to the conclusions which may be drawn from that report as regards the possible termination of the applicant’s contract.

218    Lastly, in so far as the AECE acknowledged, in the decision rejecting the complaint of 11 June 2018, that the termination of the applicant’s contract following two appraisal reports showing performance considered unsatisfactory was not mandatory, that applies a fortiori in the case of a single appraisal report, namely that for 2015, in which it was found that the level of the applicant’s performance was unsatisfactory.

219    It follows from all of the foregoing that the decision to terminate the contract must be annulled in so far as it is vitiated by a manifest error of assessment, without it being necessary to examine the other arguments raised by the applicant in the context of the fourth plea or the other pleas in the action brought in Case T‑567/18.

E.      The claims for compensation

220    In Case T‑77/18, the applicant maintains that the infringements invoked in support of the application for annulment of the 2016 appraisal report have caused him non-material damage, which he estimates at EUR 10 000. He contends, in essence, that that report seriously impaired his reputation, self-esteem and dedication.

221    In Case T‑567/18, the applicant claims compensation for the non-material harm allegedly suffered by him, in an amount of EUR 15 000. He considers that that harm was caused by the lack of care with which his case was handled, which resulted in high levels of stress and strong feelings of injustice, discrimination, disrespect and defamation, which affected his dignity, health and wellbeing, as well as his professional reputation, in a way that cannot be reversed at the current stage of his career.

222    ESMA disputes those arguments.

223    In that connection, it must be recalled that it follows from settled case-law regarding civil service matters that the European Union can be held liable for damages only if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (see judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 102 and the case-law cited).

224    As regards the non-material damage, it is apparent from the case-law that the annulment of a measure of the administration may in itself constitute appropriate and, in principle, sufficient reparation for any non-material damage which the applicant may have suffered, except where the unlawful act of the administration contains an assessment of the staff member’s abilities or conduct likely to cause him or her harm (judgment of 12 December 2000, Dejaiffe v OHIM, T‑223/99, EU:T:2000:292, paragraph 91).

225    In the present case, as regards the 2016 appraisal report, it must be held that the unlawfulness of that report stems from the fact that the assessment of the applicant’s activities as a member of the staff committee was neither carried out nor taken into consideration in the overall assessment of his performance (see paragraphs 171 to 196 above).

226    In so far as the non-material harm alleged to have been suffered by the applicant relates to the impact of the 2016 appraisal report on his self-esteem or his dedication and on the damage to his reputation, it must be held that there is no causal link between such harm, even if it were established, and the irregularity found. In any event, the 2016 appraisal report does not contain an assessment of the applicant’s abilities or conduct liable to harm him. Furthermore, that report cannot harm the applicant’s reputation, given that, as ESMA rightly points out, that report is confidential and anonymity has been granted to him in the present proceedings. In addition, it is apparent from the considerations set out in paragraphs 186, 188 and 189 above that the staff committee and its members contributed to the failure to assess the applicant’s activities as a member of that committee under the applicable rules.

227    As regards the decision to terminate the contract, it must be borne in mind that any dismissal is by nature likely to generate in the person dismissed feelings of rejection, frustration and uncertainty as to the future. Thus it is only where there are special circumstances that it may be declared that the unlawful conduct of an employer has had a psychological impact on the staff member beyond what a dismissed person normally feels, and that that person is entitled to payment of compensation for non-material damage (judgment of 26 May 2011, Kalmár v Europol, F‑83/09, EU:F:2011:66, paragraph 81).

228    In the present case, the applicant merely asserts, in general terms, that the lack of care with which his case was handled resulted in significant stress and strong feelings of injustice, discrimination, lack of respect and defamation, affecting his dignity, health and well-being and his professional reputation, without alleging, let alone proving, the existence of special circumstances justifying the payment of compensation for non-material damage.

229    It follows that the applicant’s claims for compensation for non-material damage in addition to the compensation already stemming from the annulment of the 2016 appraisal report and from the decision to terminate the contract must be rejected.

 Costs

230    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.

231    In the present case, since ESMA has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Joins Cases T77/18 and T567/18 for the purposes of the judgment;

2.      Annuls the appraisal report of VE for the period from 1 January until 31 December 2016;

3.      Annuls the decision of 14 November 2017 to terminate the contract of VE as a member of the temporary staff;

4.      Dismisses the actions as to the remainder;


5.      Orders the European Securities and Markets Authority (ESMA) to pay the costs.


Papasavvas

Spielmann

Csehi

Delivered in open court in Luxembourg on 23 September 2020.

[Signatures]


*      Language of the case: English.


1      Confidential information omitted.