JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

29 September 2011


Case F‑80/10


AJ

v

European Commission

(Civil service – Officials – Promotion – Articles 43 and 45 of the Staff Regulations – Appraisal report – Manifest error of assessment – Statement of reasons)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which AJ seeks, in particular, annulment of his appraisal report for 2008.

Held:      The action is dismissed. The applicant is ordered to bear his own costs and to pay the costs of the Commission.

Summary

1.      Officials – Reports procedure – Appraisal report – Reporting officers’ discretion – Judicial review – Limits

(Staff Regulations, Art. 43)

2.      Officials – Reports procedure – Appraisal report – Purpose – Duties of reporting officers

(Staff Regulations, Art. 43)

3.      Officials – Reports procedure – Appraisal report – Decline in appraisal compared with previous appraisal – Obligation to state reasons

(Staff Regulations, Art. 43)

4.      Officials – Reports procedure – Appraisal report – Joint Appraisal and Promotion Committee at the Commission – Role of intermediate working groups

(Staff Regulations, Art. 43)

5.      Officials – Reports procedure – Observance of the rights of the defence – Scope

(Staff Regulations, Art. 43)

1.      Assessors enjoy a very wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the Union judicature of the content of appraisal reports is limited to ensuring 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. It is thus not for the Union judicature to review the merits of the administration’s assessment of the professional abilities of an official, where it involves complex value-judgments which by their very nature are not amenable to objective verification.

An error may only be said to be manifest where it may easily be detected in the light of the criteria to which the legislature intended the exercise of decision-making powers 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 promotion decision or an appraisal report, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid.

That is particularly so where the decision at issue is vitiated by errors of assessment which, taken together, are of only minor significance unlikely to have influenced the administration.

As regards more particularly the judicial review of assessments in appraisal reports, it should be added that there is all the more reason to confine the court’s review to manifest error since the Union judicature is not directly familiar with the situation of the officials appraised, whereas the appraisal procedure includes administrative safeguards involving the official appraised, his hierarchical superiors and a joint body.

(see paras 32, 34-37)

See:

23 November 1978, 56/77 Agence européenne d’intérims v Commission, para. 20

8 May 1996, T‑19/95 Adia interim v Commission, para. 49; 12 December 1996, T‑380/94 AIUFFASS and AKT v Commission, para. 59; 6 July 2000, T‑139/99 AICS v Parliament, para. 39; 12 February 2008, T‑289/03 BUPA and Others v Commission, para. 221; 21 May 2008, T‑495/04 Belfass v Council, para. 63

29 September 2009, F‑114/07 Wenning v Europol, para. 111, and the case-law cited therein; 23 February 2010, F‑7/09 Faria v OHIM, para. 44, and the case-law cited therein; 24 March 2011, F‑104/09 Canga Fano v Council, para. 35, on appeal before the General Court of the European Union, Case T‑281/11 P

2.      The purpose of the appraisal report is to constitute written, formal evidence of the quality of the work carried out by the official, so that it does not merely describe the tasks performed during the relevant period, but also includes an assessment of the personal qualities shown by the individual assessed in the conduct of his professional life. It follows, more particularly, that the appraisal report is designed not to build an exhaustive picture of an official’s performance in carrying out the tasks associated with his post, but to highlight, on the basis of conclusive evidence, each official’s ability, efficiency and conduct in the service. Moreover, the reporting officer draws up his assessment at the end of an inter partes procedure the whole point of which is to evaluate performance during the reference period. Consequently, it is sufficient, in principle, for the appraisal report to set out the salient points of the official’s performance in terms of his efficiency, ability and conduct in the service in particular, and to appraise them. Subject to the obligation to provide a statement of reasons and provided that the appraisal is clearly individualised and not impersonal, a reporting officer is not obliged to give details of the grounds for his assessment by providing specific examples to substantiate his value judgments.

Furthermore, while it is true that the reporting officer cannot delegate to third parties the task of assessing the performance of the officials appraised, there is nothing to stop him taking into consideration information from official and reliable contacts. That approach is consistent with the obligation, for any authority, to reach a decision in full knowledge of the facts and at the end of a full examination of the situation.

(see paras 58, 59)

See:

22 December 2008, C‑198/07 P Gordon v Commission, para. 44

12 September 2007, T‑249/04 Combescot v Commission, para. 86; 19 November 2009, T‑49/08 P Michail v Commission, para. 57

10 November 2009, F-93/08 N v Parliament, para. 46; 10 September 2009, F‑139/07 van Arum v Parliament, para. 101

3.      The administration is obliged to state in a sufficient and detailed manner the reasons on which every appraisal report is based and to give the person concerned an opportunity to make observations on those reasons, compliance with those requirements being all the more important where the assessment shows a decline compared with the previous report.

(see para. 86)

See:

20 November 2007, T‑205/04 Ianniello v Commission, para. 94

13 December 2007, F‑65/05 Sequeira Wandschneider v Commission, para. 96; 21 February 2008, F‑19/06 Semeraro v Commission, paras 47 and 48

4.      In the appraisal procedure in the Commission, the only role of the intermediate working groups is to prepare for the plenary meetings of the Joint Appraisal and Promotion Committee and to produce summaries of the work of the joint working groups for that Committee. It follows that the introduction of those entities falls under the authority’s power of internal organisation, which authorises it, even in the absence of written regulations, to take appropriate measures in order to ensure its internal operation in conformity with the interests of sound administration. Moreover, it must be pointed out that the setting up of the intermediate working groups has not resulted in any delegation of the powers conferred by the Staff Regulations on the appointing authority, and that it places no obligations on the officials appraised, nor does it grant them any rights or procedural guarantees.

(see para. 101)

5.      Although the rights of the defence apply to the appraisal procedure, they merely imply that the official reported on should be given an adequate opportunity, in the course of the appraisal procedure, to state his views on the value judgments made of him, before his appraisal report becomes definitive.

Furthermore, the appeal assessor may find it necessary to consult the hierarchical superiors of the official under appraisal, his assessor or his work colleagues, without that consultation necessarily involving the initiation of an exchange of views with the official concerned. That will be all the more necessary for the intermediate working groups of the Joint Appraisal and Promotion Committee in the Commission, which are not themselves in a position to assess the performance of the officials concerned.

(see paras 108-109)

See:

20 November 2007, T‑308/04 Ianniello v Commission, paras 73 and 74; 18 June 2008, T‑164/07 P Sundholm v Commission, paras 28 and 29