JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

23 October 2013

Case F‑148/12

Ulrik Solberg

v

European Monitoring Centre for Drugs and Drug Addiction (EMCDDA)

(Civil service — Former member of the temporary staff — Staff report — Interest in bringing proceedings — Obligation to state reasons — Scope of discretion)

Application:      under Article 270 TFEU, in which Mr Solberg seeks annulment of the decision of 5 March 2012 of the authority empowered to conclude contracts of employment (‘AECE’) of the Monitoring Centre for Drugs and Drug Addiction (‘EMCDDA’ or ‘the Monitoring Centre’) establishing his 2011 staff report.

Held:      The action is dismissed. Mr Solberg is to bear his own costs and to pay the costs incurred by the European Monitoring Centre for Drugs and Drug Addiction.

Summary

1.      Actions brought by officials — Interest in bringing proceedings — Action for annulment of a staff report brought by a temporary staff member after leaving the service — Interest in bringing proceedings retained

(Staff Regulations of Officials, Arts 90 and 91)

2.      Officials — Reports procedure — Staff report — Obligation to state reasons — Scope

(Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations, Art. 43)

3.      Officials — Reports procedure — Staff report — Reporting officers’ discretion — Judicial review — Limits — Manifest error of assessment — Burden of proof

(Staff Regulations, Art. 43)

4.      Officials — Reports procedure — Staff report — Descriptive comments must be consistent with marks awarded — Annulment only in the event of manifest inconsistency

(Staff Regulations, Art. 43)

1.      In order to bring a valid action under Articles 90 and 91 of the Staff Regulations, an applicant must have a personal, vested and present interest in the annulment of the contested measure at the time when the action is brought and it must continue until the final decision, failing which there will be no need to adjudicate.

The staff report is an essential document in the appraisal of staff employed by the institutions, since it enables an assessment to be made of the ability, efficiency and conduct of an official or staff member and constitutes a value judgment by the immediate superiors of the official or staff member being appraised on the manner in which he has performed the duties conferred on him and on his conduct in the service during the relevant period. Consequently, every official has a right to have his work recognised by means of an appraisal carried out in a just and equitable manner and, in accordance with the right to effective judicial protection, must be acknowledged as having the right to challenge his staff report on account of its content or because it has not been drawn up in accordance with the rules laid down by the Staff Regulations. The same should apply with regard to a staff member covered by the Conditions of Employment of Other Servants who has been appraised.

In order to assess the personal and present interest of a former member of the temporary staff in bringing an action for annulment against his staff report it is necessary to take into account whether he wishes, in view of the experience he has acquired within his agency, to return to the staff of the European Union in the future, and the interest he might therefore have in relying on a staff report for his last year of active service as a temporary staff member that does not contain irregularities. The fact that if the person concerned returns to the staff of the European Union his career will resume its development also shows that he has an interest in bringing an action against the staff report at issue.

(see paras 16-17, 21)

See:

29 October 1975, 81/74 to 88/74 Marenco and Others v Commission, para. 6; 22 December 2008, C‑198/07 P Gordon v Commission, paras 42, 43 and 45

18 June 1992, T‑49/91 Turner v Commission, para. 24; 28 June 2005, T‑147/04 Ross v Commission, paras 24 and 25 and the case-law cited

12 July 2011, T‑80/09 P Commission v Q, para. 162; 4 June 2012, T‑118/11, T‑123/11 and T‑124/11 Attey and Others v Council, para. 28

2.      The guarantees afforded by the European Union legal order in administrative proceedings include the principle of sound administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union and, inter alia, as laid down in paragraph 2(c) of that article, ‘the obligation of the administration to give reasons for its decisions’.

The obligation to state reasons for decisions adversely affecting an official thus laid down constitutes an essential principle of EU law which may be derogated from only for compelling reasons.

In order to assess whether a staff report is sufficiently reasoned, it is necessary to take into account all the information brought to the knowledge of the official or staff member concerned and not only the information set out in the staff report.

(see paras 28-31)

See:

29 September 2005, T‑218/02 Napoli Buzzanca v Commission, para. 57 and the case-law cited; 8 September 2009, T‑404/06 P ETF v Landgren, para. 148 and the case-law cited

27 September 2012, T‑387/09 Applied Microengineering v Commission, para. 76

13 September 2011, F‑4/10 Nastvogel v Council, para. 61; 11 July 2013, F‑46/11 Tzirani v Commission, para. 136

3.      Reporting officers enjoy a wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the European Union judicature of the content of staff 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 not for the Civil Service Tribunal to review the merits of the reporting officer’s assessment of the professional abilities of an official or staff member, where it involves complex value-judgments which by their very nature are not amenable to objective verification.

Moreover, the European Union judicature’s review of the existence of a manifest error in the assessment of officials must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within the proper bounds and has not used its power in a manifestly incorrect way.

The evidence which it is for the applicant to adduce in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a staff report must be sufficient to make the factual assessments 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 challenged assessment may still be accepted as being true or valid.

(see paras 39-40)

See:

3 December 1981, 280/80 Bakke-d’Aloya v Council, para. 10; 3 April 2003, C‑277/01 P Parliament v Samper, para. 35

29 February 1996, T‑547/93 Lopes v Court of Justice, para. 133; 12 December 1996, T‑380/94 AIUFFASS and AKT v Commission, para. 59; 12 February 2008, T‑289/03 BUPA and Others v Commission, para. 221

16 December 2010, T‑175/09 P Council v Stols, para. 23 and the case-law cited; 16 May 2013, T‑281/11 P Canga Fano v Council, para. 41

29 September 2009, F‑114/07 Wenning v Europol, para. 111; 23 February 2010, F‑7/09 Faria v OHIM, para. 44; 15 February 2012, F‑113/10 AT v EACEA, para. 74; 12 December 2012, F‑109/11 Lebedef v Commission, para. 61, on appeal before the General Court, Case T‑117/13 P

4.      The purpose of the descriptive comments in a staff report is to justify the analytical assessments made in the report; they serve as the basis for establishing the assessment and enable the official or staff member concerned to understand the marks awarded. Consequently, having regard to their dominant role in the drawing up of a staff report, the comments must be consistent with the marks awarded, so that the marking must be considered to be the quantified or analytical transcription of those comments. However, in view of the wide discretion afforded to reporting officers, a possible inconsistency in a staff report cannot justify the annulment of that report unless the inconsistency is manifest.

(see para. 41)

See:

13 December 2007, F‑28/06 Sequeira Wandschneider v Commission, paras 109 and 110; 13 September 2011, F‑68/10 Behnke v Commission, para. 78