CJ v ECDC (Civil service - Members of the contract staff - Career evaluation report : Judgment) [2017] EUECJ T-602/16 (13 December 2017)

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(Civil service — Members of the contract staff — Career evaluation report — Assessment exercise 2012 — Drawing up — Application for annulment of the decision closing appraisal report)

European Centre for Disease Prevention and Control (ECDC), represented by J. Mannheim and A. Daume, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,

ACTION brought under Article 270 TFEU, seeking annulment of the decision of the appeal assessor of the ECDC of 21 September 2015 finalising the applicant’s appraisal report for the year 2011 and, insofar as necessary, the decision of the ECDC of 20 April 2016 rejecting the complaint lodged by the applicant against that decision of the appeal assessor,

composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,

1 The applicant, CJ, was recruited by the European Centre for Disease Prevention and Control (ECDC) on 1 January 2010 as a member of the contract staff in function group IV, at grade 14, for a period of five years, as a ‘legal assistant’ within the ‘Legal and Procurement’ section of the ‘Resource Management and Coordination’ unit of the ECDC.

3 On 20 January 2012, the applicant submitted the self-assessment document which was to start the appraisal procedure and his line manager, Ms B, scheduled an appointment on 3 February 2012 to hold the appraisal interview. However, the applicant refused to participate in that interview unless it was electronically recorded and declined Ms B’s proposal to be accompanied at that interview by a member of the Staff Committee or by a person of trust.

4 On 24 February 2012, the applicant’s contract as a member of the contract staff was terminated with effect from 1 May 2012, pursuant to Article 47(b)(ii) of the Conditions of Employment of Other Servants of the European Union, for reasons unrelated to the conduct of the appraisal procedure. That procedure was closed without an appraisal report.

5 Following a draft recommendation issued on 27 May 2014 by the European Ombudsman, before whom the applicant had brought a complaint on the ground of failure to finalise the assessment procedure for the year 2011, the appraisal procedure was resumed on 12 August 2014, by sending the applicant a draft appraisal report drawn up by Ms A, the former line manager of Ms B, who had meanwhile left the ECDC. In that draft, the applicant’s overall performance for 2011 was considered unacceptable having regard to the level of performance required of ECDC staff.

6 The applicant disagreed with the draft report. Consequently, the matter was referred to Ms M as countersigning officer. On 22 October 2014, following a written interview, Ms M confirmed the draft report previously prepared by Ms A.

7 The applicant again expressed his disagreement by an email of 5 November 2014, requesting that the matter be referred to the Joint Committee for Appraisals (‘the Joint Committee’) set up in accordance with ECDC Implementing Rule No 20 of 17 April 2009 (‘the ECDC Implementing Rule’), which contains the implementing provisions of Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

8 After delivering a first opinion concluding that the appeal was out of time, which was invalidated by decision of the director of the ECDC of 5 June 2015, the Joint Committee delivered a new opinion on 11 September 2015 (‘the Joint Committee opinion’) stating that the reasons for the appraisal were well explained and that Ms A. was authorised to draw up the applicant’s appraisal report.

9 As Ms A was acting as director of the ECDC at that time, the role of appeal assessor was delegated to another head of unit, Mr C, who, by decision of 21 September 2015 (‘the contested decision’), confirmed the opinion of the Joint Committee, thus finalising the applicant’s appraisal report.

10 The complaint lodged by the latter on 20 December 2015 was rejected by a decision of 20 April 2016 (‘the decision rejecting the complaint’).

11 By application received at the Registry of the Civil Service Tribunal on 23 June 2016, the applicant brought the present action.

12 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016. It was registered as Case T‑602/16 and assigned to the First Chamber.

13 The General Court (First Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure.

– annul the contested decision and, in so far as necessary, the decision rejecting the complaint;

16 By decision of 30 May 2017, the General Court (First Chamber) instructed the Judge-Rapporteur to explore the possibilities of settling the dispute by means of an amicable settlement, in accordance with Article 125a of the Rules of Procedure.

17 The Court noted the failure of the attempted settlement, of which the parties were informed by letter from the Registry of 9 August 2017.

18 According to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the General Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8; of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43; and of 26 March 2015, CW v Parliament, F‑41/14, EU:F:2015:24, paragraph 40).

19 In the present case, given that the decision to reject the complaint merely confirms the new termination decision, it must be held that the claim for annulment of the decision rejecting the complaint lacks any independent content and that there is therefore no need to rule specifically on it, even if, in examining the lawfulness of the contested decision, the statement of reasons in the decision rejecting the complaint must be taken into account, since that statement of reasons is deemed to be identical with that of the contested decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited).

20 In support of the application for annulment, the applicant initially submitted 11 pleas in law. However, he stated in the reply that he waived his 10th plea, which must be acknowledged.

21 As a preliminary point, it must be pointed out that, in the context of his ninth plea, the applicant requests that the examination of the present case be suspended, insofar as it would require the General Court to rule on the reality of the facts of insubordination which, in essence, are the basis of the negative assessment set out in the contested appraisal report, until there has been a ruling on the appeal brought by the applicant against the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), relating to the action he had brought against the ECDC decision of 24 February 2012 terminating early his contract as a member of the contract staff, to which judgment the ECDC referred in the decision rejecting the complaint in order to confirm the reality of those facts.

22 That request for suspension has, however, become devoid of purpose. The abovementioned appeal, in so far as it challenged the assessments made in that judgment by the Civil Service Tribunal concerning the reality of the facts on which the ECDC’s decision of 24 February 2012 to terminate early the applicant’s contract as a member of the contract staff was based, was rejected by the judgment of 5 October 2016, CJ v ECDC (T‑370/15 P, not published, EU:T:2016:599). Therefore, it can be considered that the ECDC is effectively referring to the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38).

The first plea, alleging infringement of the second subparagraph of Article 3(3) of the ECDC Implementing Rule

23 By his first plea, the applicant submits that the contested decision is in breach of the second subparagraph of Article 3(3) of the ECDC Implementing Rule, in that the function of appeal assessor was carried out by a head of unit, in this case Mr C, whereas it should have been carried out by the Chairman of the ECDC Management Board (‘the Chairman of the MB’).

24 The applicant submits that, pursuant to Article 3(1) of the ECDC Implementing Rule, the director of the ECDC is the appeal assessor, who is responsible for taking a decision after the Joint Committee has given an opinion. In the present case, at the time when the opinion of the Joint Committee was delivered, Ms A was acting as director. It was also Ms A who, after resuming the appraisal procedure, had drawn up the draft appraisal report on 12 August 2014. Therefore, in accordance with the second subparagraph of Article 3(3) of the ECDC Implementing Rule, Ms A should have delegated the function of appeal assessor to the Chairman of the MB and not to a head of unit, who was subordinate to the latter and whose independence was not guaranteed.

‘1. As a general rule, the reporting officer shall be the job holder’s direct line manager (Head of Section or Head of Unit or Director), the countersigning officer shall be the Head of Unit and the appeal assessor shall be the Director [of the ECDC].

2. In the case where [the] direct line manager is the Head of Unit or the Director, the countersigning officer will be the Head of Section for Human Resources.

3. The Director may delegate the role of appeal assessor to a member of the management team (i.e. the Executive Committee).

If the Director is the reporting officer, the Chairman of the [MB] shall be the appeal assessor.

27 In the present case, it should be noted from the outset that Ms A drew up the draft appraisal report on the applicant’s performance during 2011 in her capacity as his direct line manager for most of the year in question, as is explicitly stated in the draft evaluation report and as the applicant states in his sixth plea, and not as acting director of the ECDC, which position she held in 2014, when the appraisal procedure in question was resumed.

28 Moreover, it is apparent from the general scheme of the ECDC Implementing Rule that the provisions of Article 3 of that rule are intended to govern a normal situation, in which the appraisal procedure takes place within a relatively short period of time, in accordance with the time limits provided for in Articles 9 and 10 of that rule. Such a situation is normally characterised by those involved in the appraisal procedure holding stable positions. In that context, the second subparagraph of Article 3(3) of that rule must be regarded as referring to a situation in which the director, as such, is the line manager of the staff member to be assessed, and therefore his reporting officer under paragraph 1 of that article.

29 Accordingly, the second subparagraph of Article 3(3) of the ECDC Implementing Rule is not intended to govern an exceptional situation, such as that in the present case, characterised by the lapse of an extraordinarily long period of time between the start and the end of the appraisal procedure, during which many changes were made within the ECDC’s management staff.

30 In those circumstances, it is right that, after the opinion of the Joint Committee was delivered, Ms A, with a view to ensuring the impartiality of the appeal assessor, applied the first subparagraph of Article 3(3) of the ECDC Implementing Rule and, as a result, delegated the function of appeal assessor to a head of unit of the ECDC who was, it is established, as such a member of the management team, given that it was impossible for her to intervene again in the appraisal procedure because she had had to draw up the draft appraisal report in place of Ms B, due to the departure of the latter.

31 In any event, it is appropriate to reject the applicant’s argument that the second subparagraph of Article 3(3) of the ECDC Implementing Rule is based on the assumption that the appeal assessor cannot be subordinate to the reporting officer, as the objectivity of the appeal assessor would not be ensured, since the latter would have to rule on the opinion issued by his line manager, that is to say, that the assignment of the various functions in the appraisal procedure should take into account the normal hierarchical link between the persons carrying out those functions, so that a person is not required, in an appraisal procedure, to reconsider an opinion issued, in that context, by one of his line managers. Paragraph 2 of that article provides that, if the director is the line manager of the person to be assessed, and therefore the reporting officer of that person, the head of the human resources section performs the function of countersigning officer. However, although the head of that section is also subordinate to the director, the function of countersigning officer may require him, in accordance with the third subparagraph of Article 8(9) of the ECDC Implementing Rule, to amend the draft appraisal report drawn up, under these circumstances, by the director, and therefore to contradict the opinion of the latter.

32 Accordingly, it must be held that the ECDC Implementing Rule is not based, in that regard, on a principle according to which a person who, in the context of the duty which he performs in the appraisal procedure, may contradict a draft appraisal report prepared by the director, can under no circumstances be subordinated to the director. Consequently, the second subparagraph of Article 3(3) of the ECDC Implementing Rule must be understood as referring to the case where, in accordance with the ECDC organisational chart, the director is the direct line manager of the person under appraisal and, therefore, his reporting officer, pursuant to paragraph 1 of that article.

33 Moreover, it must be borne in mind that, for a procedural irregularity to result in the annulment of a measure, it must be the case that, had it not been for that irregularity, the outcome of the procedure might have been different (see, to that effect, judgments of 9 March 1999, Hubert v Commission, T‑212/97, EU:T:1999:39, paragraph 53 and the case-law cited). However, in the present case, all the interveners who, before the appeal assessor, had to decide on the applicant’s draft appraisal report or on the complaints made by the applicant concerning that report have endorsed it, the appeal assessor himself only ratifying the opinion of the Joint Committee. That lack of ambiguity makes it improbable that the intervention of a person other than Mr C as an appeal assessor would have resulted in another decision, as the applicant has not in any way called into question Mr C’s neutrality towards him.

The second plea, alleging infringement of Article 8(6) and (7) of the ECDC Implementing Rule

35 By his second plea, the applicant submits that the contested decision results from an infringement of Article 8(6) and (7) of the ECDC Implementing Rule, in that the concertation provided for between the director and the countersigning officers in order to ensure the consistency of the appraisals prior to the finalisation of the appraisal reports had not taken place.

‘6. The Director shall, in concertation with the countersigning officers, seek to ensure that, across ECDC and within each function group and grade, the merits of the concerned have been appraised consistently.

7. After the concertation referred to in paragraph 6, the reporting officer and the countersigning officer shall finalise each appraisal report and transmit it to the job holder.

38 It must be noted that the present plea relates to the absence of the ‘concertation’ provided for in Article 8(6) of the ECDC Implementing Rule in the present case, that is to say before the finalisation, in 2014 and 2015, of the applicant’s appraisal report for 2011, in respect of the 2012 assessment exercise.

39 Even assuming that the persons referred to in Article 8(6) of the ECDC Implementing Rule who had been involved in the various ECDC appraisal procedures for the 2012 financial year had still been active in the ECDC during the second half of 2014, it must be held that the application of that provision at that time would have had no effective impact. As is apparent from paragraph 7 of that article, such concertation seeks to ensure that the assessments in progress will be carried out on a common basis, which supposes that it is organised before the finalisation of the appraisal reports for the assessment exercise concerned. However, that finalisation had taken place for the staff in general well before 2014, the year during which the appraisal procedure for the 2012 exercise was resumed with regard only to the applicant.

40 In those circumstances, the ECDC rightly contends, implicitly, that in the particular circumstances of the present case, the meaning of Article 8(6) of the ECDC Implementing Rule was, in essence, that the assessment of the applicant’s competencies for the 2012 exercise should be consistent, that is to say, taking into account, as far as possible, the results of the concertation that took place for that exercise. However, the information provided in that respect by the ECDC concerning the involvement of several members of the ECDC management team in the various stages of the applicant’s appraisal procedure, in 2014 and 2015, was, in the particular circumstances of the case, such as to ensure that the applicant’s appraisal was carried out consistently, having regard to the usual criteria of the ECDC in that respect. This is all the more so since one of those people was Mr C, who in 2012, was already head of unit and, therefore, countersigning officer, in accordance with Article 3(1) of the ECDC Implementing Rule and, as such, had been involved in the concertation provided for in Article 8(6) of that rule.

41 In addition, it should be noted that the specific reasons given in support of the assessment recorded in the applicant’s draft appraisal report for 2011, that his overall performance was described as unacceptable, that is, in essence, obstructive behaviour, the refusal to carry out the instructions of his line manager, calling into question management decisions and a situation of virtually complete unproductiveness during the last part of that year, correspond to such significant deficiencies in the performance of a contract as a member of the contract staff that it does not seem likely that that description is inconsistent with the assessments of other ECDC staff members for the 2012 exercise, in the sense that possible breaches of that level of seriousness committed by any of those staff members could have led to an overall appraisal other than unacceptable.

42 Therefore, even assuming that the concertation provided for in Article 8(6) and (7) of the ECDC Implementing Rule did not take place for that year, it is not established that that concertation could have affected the content of the final appraisal report. In accordance with the case-law referred to in paragraph 33 above, in order for a procedural irregularity to constitute a substantial irregularity vitiating the validity of the appraisal report, it must be the case that, had it not been for that irregularity, the outcome of the procedure might have been different.

The third plea, alleging infringement of Article 9(3) of the ECDC Implementing Rule

44 By his third plea, the applicant submits that the contested decision is based on an infringement of Article 9(3) of the ECDC Implementing Rule, in that the work of the Joint Committee which issued an opinion on 11 September 2015 was not governed by a procedural rule or, at least, in that the existence of such a procedural rule was not apparent in that opinion. In any event, the applicant complains that the ECDC did not bring any procedural rule to his attention.

46 In accordance with the second subparagraph of Article 9(3) of the ECDC Implementing Rule, rules of procedure adopted by the Head of the Human Resources Section apply to each Joint Evaluation Committee.

47 In the present case, the ECDC produces the rules of procedure of the Joint Evaluation Committee for the period from 19 May to 31 December 2014 and contends that those rules were applicable having regard to the date on which the applicant requested the referral to that committee, namely 5 November 2014.

48 There is nothing to call into question either that statement, which is confirmed by the addition of the text of the ‘Rules of procedure — Joint Committee [of] 19 [May] 2014’ annexed to the email from the Secretariat of the Joint Committee convening the members of that committee for the meeting of 7 September 2015, during which the applicant’s appeal was examined, or the validity of the application of that version of the rules of procedure.

49 Moreover, it should be pointed out that the applicant claims that the absence of a procedural rule was such as to prejudice him, but not that the application of the abovementioned rule rather than another had prejudiced him.

50 Finally, it was incumbent on the applicant, if necessary, to request the communication of the current rules of procedure when he requested the referral to the Joint Committee in his email of 5 November 2014, the reference in that email to Article 9(7) of the ECDC Implementing Rule raising a presumption that he was also aware of the provision in that article regarding the rules of procedure of the Joint Committee, which is confirmed, moreover, by paragraph 13 of his complaint of 20 December 2015. Moreover, it should be noted that, at that point in the complaint, the applicant did not claim that he had not been aware of the rules of procedure of the Joint Committee, but merely regretted that a signed version of that document had not been sent to him.

51 In any event, there is no evidence in the file to suggest that the application of a procedural rule other than the rule referred to in the preceding paragraph of the present judgment, assuming that application of that rule is incorrect, or the fact that the applicant had been aware of the applicable rules of procedure, assuming that this was not the case, could have led to the adoption of a different opinion by the Joint Committee and, thus, affect the content of the final appraisal report. In accordance with the case-law referred to in paragraph 33 above, that is a sine qua non condition for a procedural irregularity to constitute a substantial irregularity vitiating the validity of the appraisal report.

The fourth plea, alleging infringement of Article 7(1) and Article 8(4) of the ECDC Implementing Rule and a manifest error of assessment, a breach of the duty of care and a breach of the principle of sound administration, and the fifth plea, alleging substantial procedural irregularity, inadequate reasoning, failure to fulfil the duty of care and misuse of powers

53 By his fourth plea, the applicant submits that the contested decision is a breach of Article 8(4) of the ECDC Implementing Rule and, more generally, of Article 7(1) of that rule, in that the appraisal report at issue was not completed with regard to the headings provided for that purpose and contains no indication of the objectives which had been set in the context of the development dialogue which took place in 2011 between the applicant and his direct line manager. In the alternative, the failure to take account of those objectives combined with a lack of explanation as to the sharp drop in the assessment compared with the previous year, he claims, constitutes a manifest error of assessment, a breach of its duty of care and of the right to sound administration.

54 By his fifth plea, the applicant submits that the contested decision is the result of a substantial procedural irregularity, an inadequate statement of reasons, a breach of the duty of care and a misuse of powers, in that the appraisal report, it is claimed, only covers the last two weeks of 2011, when it should relate to performance for the whole of that year.

56 The purpose of the periodic assessment report provided for in Article 43 of the Staff Regulations, read in conjunction with Article 15 of the Conditions of Employment of Other Servants of the European Union, is, in particular, to provide written, formal evidence of the quality of the work carried out by the official or staff member assessed during the relevant period (see, to that effect, judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraph 44).

57 In accordance with the fourth subparagraph of Article 8(4)(b) of the ECDC Implementing Rule, the objectives set for the job holder for a year constitute the basis on which the efficiency of the person concerned during that year is assessed. Article 7(1) of that rule provides that the job holder, the reporting officer and the countersigning officer shall ensure that the guidelines set out in the appraisals guide published by the Head of the Human Resources section are complied with.

58 The objectives set for an official or other staff member constitute a basic reference point for evaluating the performance of a staff member and preparing the appraisal report (see, to that effect, judgment of 18 September 2015, Wahlström v Frontex, T‑653/13 P, EU:T:2015:652, paragraph 62).

59 In the present case, while it is undisputed that the headings of the applicant’s appraisal report, relating to the objectives set for him in the context of the development dialogue finalised in July 2011, have not been formally completed, it nevertheless appears that that report is not limited to the assessment of the applicant’s professional behaviour during the last weeks of 2011, characterised by the insubordination with which he was accused, but relates generally to his performance during that year.

60 It is apparent from the first sentence of the appraisal, starting with the words ‘[d]espite the legal advice and input the job holder has provided in the first part of the year, his performance in the year 2011 was overshadowed by an increasingly obstructive behaviour’, that the applicant’s performance for the entire year was taken into consideration. It may even be inferred from the use of the terms ‘despite’, ‘input’ and ‘overshadowed’ that the specific services he provided as a lawyer during the first part of 2011 were found to be satisfactory, as the ECDC acknowledges, moreover, in paragraph 90 of its defence, which assessment could be related to the objectives which had been fixed for him for that year as regards the content of his work.

61 In addition, account should be taken of the fact that the broad discretion of a reporting officer implies that he is not obliged to include in the appraisal report all the relevant facts and points of law, as this report is intended to highlight, on the basis of conclusive evidence, the ability and efficiency of the official or staff member concerned as well as his conduct in the service. Consequently, in order to be lawful, it is sufficient, in principle, for the report to set out the salient points of the performance of the person concerned in terms of efficiency, ability and conduct in the service. Moreover, in order to assess whether an appraisal report is sufficiently reasoned, it is necessary to take into account all the information brought to the knowledge of the person concerned and not only the information set out in that report, and to put the wording of the report in its factual and legal context (see, to that effect, judgment of 13 September 2011, Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraphs 61 and 66 and the case-law cited).

62 The broad discretion of a reporting officer also implies that, in the event of possible errors of assessment, only manifest errors must lead to the annulment of the appraisal report. In that regard, the evidence relied on against an appraisal report must be sufficient to make the findings contained in the appraisal implausible. Therefore, a plea alleging a manifest error of assessment must be rejected if, despite the evidence adduced, the disputed assessment may nevertheless be considered as plausible (see, to that effect, judgment of 18 July 2016, Winkel v EUIPO, F‑48/15, EU:F:2016:149, paragraph 36 and the case-law cited).

63 Finally, in accordance with the case-law referred to in paragraph 33 above, a procedural irregularity can constitute a substantial irregularity vitiating the validity of the appraisal report only if it is demonstrated that, had it not been for that irregularity, the content of the contested appraisal report might have been different.

64 In the present case, the contested appraisal report concerns a year in which the final part was characterised by a series of acts of insubordination by the applicant, constituting a breach of an essential duty in the context of the performance of his contract as a member of the contract staff. Those acts were considered so serious that they led to the opening of an administrative inquiry on 11 January 2012, a few days after the end of the year concerned, the findings of which confirmed the reality and seriousness of the facts. Those acts also led to the termination of the applicant’s contract by a decision of the director of the ECDC of 24 February 2012. In the action lodged by the applicant, the Civil Service Tribunal, by the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), dismissed all the complaints by which the applicant had challenged the reality and seriousness of the facts found in that decision, the proportionality of that decision and the observance of the applicant’s right to be heard as to the reality and imputability of those facts, the Civil Service Tribunal annulling that decision only because of the failure to observe the applicant’s right to be heard as to the consequences that the AECE of the ECDC intended to draw from those facts. To comply with that judgment, that decision was replaced by a new termination decision. The action brought by the applicant against that decision was rejected by the judgment delivered today in Case T‑692/16.

65 Moreover, it should be noted that the contested appraisal report refers to ‘[the applicant’s] increasingly obstructive behaviour which culminated in him refusing to carry out his line manager’s instructions’, because the latter ‘regularly challeng[ed] management decisions’ and a ‘negative tendency in his efficiency and delivery of legal services’, regarding which it is apparent that certain assertions regarding the applicant’s behaviour, which reached its climax in the last part of 2011, could already be observed in the course of that year.

66 In such a context, it must be held, first, that the contested appraisal report is based, essentially but not exclusively, on a decisive factor that occurred in the course of 2011, which could alone justify the assessment of the overall performance of the applicant for that year as unacceptable, since that factor was such as to lead to the termination of the contractual relations between the applicant and the ECDC. Accordingly, in that context, the precise question of the extent to which the objectives set for the applicant for that year had been attained, before the most significant incidents of those events constituting that determining factor had occurred, was merely secondary and the assessment made in that respect, whatever that might be, was not likely to render implausible the appraisal of the overall performance of the applicant contained in the contested report.

67 Moreover, it must be noted that, as mentioned in the reasoned assessment in the contested appraisal report, the decisive factor for that assessment, namely obstructive behaviour which ultimately led to insubordination, questioning of his line manager’s decisions and the generation of conflicts as well as being virtually completely unproductive, was linked to the remark contained in his previous appraisal report according to which the applicant was expected to improve his interpersonal and communication skills as well as his team spirit. That remark, according to which ‘[h]e would gain from enhanced team spirit and interpersonal skills ... and ‘[he] could further progress in interpersonal and communication skills as well as team spirit’, contained a general objective regarding improvement of his conduct in the service which, in essence, as was then recorded in the disputed appraisal report, had been totally ignored by the applicant. Furthermore, in so far as it was found that that behaviour had led to the applicant being virtually completely unproductive and to a certain malfunctioning in the ECDC itself, that assessment also had a certain link with the more specific objectives which had been set out in the previous appraisal report concerning the various tasks assigned to the applicant.

68 Consequently, the fact that the contested appraisal report contains only general indications as to the specific objectives relating to his legal work which had been fixed for the applicant, with the headings relating to those objectives not duly completed, is not likely to vitiate the validity of that report.

69 Moreover, those considerations lead to rejecting the hypothesis of a misuse of powers, since the nature and proven character of the facts mentioned in the contested appraisal report, as is apparent from the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), remove all credibility from the allegation that the assessment of the applicant’s behaviour made in that report was intended to avoid having to renew his contract after the annulment, by that judgment, of the decision of 24 February 2012 terminating that contract. Moreover, it should be noted that that assessment was already included in the draft appraisal report drawn up on 12 August 2014 and countersigned on 22 October 2014, before the judgment was delivered.

70 On the other hand, in view of the events which preceded the moment when that appraisal report was drawn up and which relate directly to the determining factor of the disputed appraisal, in particular the opening of an administrative inquiry regarding the behaviour of the applicant, the findings of that inquiry and the consequent termination of the applicant’s contract on 24 February 2012, as well as the proceedings relating to that termination which took place between the parties before the Civil Service Tribunal, that report was drawn up in a factual and legal context that was perfectly known to the applicant.

The eighth plea, alleging infringement of Article 8(4)(a) and Article 8(9) of the ECDC Implementing Rule and of the rights of the defence

72 By his eighth plea, which must be examined at this stage, the applicant submits that the contested decision is vitiated by an infringement of Article 8(4) and Article 8(9) of the ECDC Implementing Rule, in that, first, the reporting officer did not initiate a dialogue before the draft appraisal report was drawn up and, secondly, the countersigning officer had not held a genuine dialogue with him before confirming the draft appraisal report.

74 On the one hand, pursuant to Article 8(4) of the ECDC Implementing Rule, the self-assessment of the person concerned is immediately followed by an interview between the person concerned and his or her line manager, the primary purpose of which is to assess the concerned person’s performance during the year covered by the assessment in the light of the self-assessment document.

75 In the present case, it is apparent from the file that such an appraisal interview was scheduled on 23 January 2012 for the following 3 February at 9.30 a.m., that the applicant attended that meeting but that he refused to participate in an appraisal interview unless it was electronically recorded.

76 In that regard, it should be noted that the ECDC Implementing Rule does not provide for the possibility of such recording. It is relevant to point out, moreover, that the applicant was offered the opportunity to be accompanied at that interview by a member of the staff committee or a person of trust, which proposal he declined when a new appointment was proposed to him to allow him to reconsider his refusal. It should also be recalled that, according to the case-law, an interview is the key of the assessment system and that the very nature of an appraisal interview and its purpose imply a direct contact between the person under appraisal and the appraiser, and neither a telephone conversation nor an exchange of letters can constitute a valid substitute (see, to that effect, judgment of 25 October 2007, LoGiudice v Commission, T‑27/05, EU:T:2007:321, paragraphs 48 to 50).

77 Moreover, following the applicant’s complaint, in 2014 the Ombudsman recommended that the ECDC draw up and send to the applicant a draft appraisal report even if an appraisal interview could not take place, which the ECDC and the applicant confirmed to the Ombudsman without making any complaint regarding the fact that a new appraisal interview had not been organised beforehand.

78 In such a context, the ECDC cannot be held liable for the absence of an appraisal interview in 2012 and cannot properly be criticised for not having organised an appraisal interview when the appraisal procedure was resumed in 2014 as a result of the Ombudsman’s recommendation.

79 On the other hand, pursuant to Article 8(9) of the ECDC Implementing Rule, in the event of disagreement of the person under appraisal concerning the draft appraisal report, the countersigning officer is to organise a dialogue with the latter, who may be assisted by another member of staff.

80 In the present case, after the applicant had notified his disagreement with the draft appraisal report by email of 26 September 2014, the countersigning officer proposed to organise that dialogue by telephone, in view of the applicant’s remoteness, but accepted, at the request of the latter, that that dialogue should take place in writing. Thus, by email of 10 October 2014, the countersigning officer invited the applicant, first, to send him the self-assessment he had drawn up in 2012, to which he referred in his abovementioned email of 26 September 2014, and, secondly, to specify what elements of the draft appraisal report he considered to be false. By email in response of 15 October 2014, the applicant (i) indicated that he had already provided his self-assessment on 20 January 2012, (ii) referred to all the points of his abovementioned email of 26 September 2014 to confirm that he considered all of the comments on page 9 of the draft appraisal report under the title ‘Appraisal of [CJ] .... for the year 2011’ to be false and, (iii) ‘[took] the opportunity’ to refer to emails sent to another member of staff of the ECDC concerning a question of adjustment of salary unrelated to the appraisal procedure.

81 From that summary, it follows that the applicant had the opportunity to put his point of view to the countersigning officer, but that he did not intend to take advantage of the dialogue he had entered into to explain the challenge he had made concerning the draft appraisal report, since it was limited to formal replies and even addressed a question entirely unrelated to his appraisal, which could be interpreted as a lack of interest in the dialogue which he now complains had not been sufficiently detailed. In such circumstances, the ECDC cannot be validly criticised for not having pursued that dialogue beyond the exchange of emails referred to in the previous paragraph of the present judgment.

The sixth plea in law, alleging infringement of Article 3(1) of the ECDC Implementing Rule

83 By his sixth plea, the applicant submits that the contested decision stems from an infringement of Article 3(1) of the ECDC Implementing Rule, in that the contested appraisal report was not established after consulting all the direct line managers under whose authority he had performed his duties during 2011. More specifically, he claims that Ms A was his line manager only until 30 October 2011, who was then succeeded by Ms B. Furthermore, on 1 January 2011, his line manager was Ms R, who stopped working from 10 February 2011, that latter date being put forward by the ECDC, but disputed by the applicant.

85 As a preliminary point, it must be noted that the applicant’s contestation regarding the date of termination of Ms R’s employment is contradicted by the email he sent to Ms B on 5 January 2012 at 10.43 a.m., paragraph 2 of which states that Ms R had been his direct line manager until 9 February 2011, as well as the answer to the third and fourth questions relating to his working environment contained in his self-assessment, where he distinguished the period from 10 February to 31 October 2011.

86 That being the case, Article 3(1) of the ECDC Implementing Rule provides that the reporting officer is the direct line manager of the assessed job holder. Furthermore, it follows from Article 43 of the Staff Regulations that the appraisal of the official or staff member concerned must cover the whole of the reporting period and, accordingly, give rise to a consultation with the direct line managers under whom he worked for a significant period of time (see, to that effect, judgment of 13 September 2011, Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 85).

87 However, the particular circumstances of the present case must be taken into account.

88 On the one hand, as is apparent from the response to the eighth plea, the applicant’s appraisal procedure was abandoned in 2012 because of his refusal to participate in the appraisal interview unless his requirement that that interview be electronically recorded was fulfilled. In that regard, it should be pointed out that the ECDC Implementing Rule does not provide for such recording and that the applicant was offered the opportunity to be accompanied at that interview by a member of the Staff Committee or a person of trust, a proposition he declined. It is also relevant to point out, furthermore, that in accordance with the case-law referred to in paragraph 76 above, the very nature of an appraisal interview and its purpose imply direct contact between the staff member under appraisal and the reporting officer. Subsequently, the appraisal procedure was resumed in 2014, on the Ombudsman’s recommendation.

89 On the other hand, when that procedure was resumed, neither Ms R nor Ms B were still working at the ECDC.

90 In such circumstances, it is not unreasonable that the applicant’s draft appraisal report was drawn up by Ms A, who had been his direct line manager for the greatest part of the year concerned, namely from 10 February to 31 October 2011, whereas Ms R and Ms B were no longer present at the ECDC, Ms A having had, in addition, a comprehensive view of the applicant’s behaviour during the year 2011, since she had been involved, at the beginning of 2011, as countersigning officer of his appraisal report for the year 2010 and had been Ms B’s line manager from 1 November 2011. Moreover, the allegation that, in the light of Ms A’s medical training, she did not have the skills required to assess a lawyer is irrelevant, since the conduct which justified the assessment of the applicant’s overall performance in 2011 as unacceptable, as recalled in paragraphs 64 to 67 above, did not concern his competence as a lawyer.

91 Finally, it should also be noted, first, that as the said behaviour directly concerned Ms B, who had to report it to the director of the ECDC in the first days of January 2012, which resulted in the opening of an administrative procedure, it cannot be held likely that consultation with the latter could have resulted in a more favourable appraisal report.

92 Secondly, as regards the period from 1 January to 9 February 2011, during which Ms R was the applicant’s direct line manager, it has already been pointed out in paragraph 60 above that the contested appraisal report included a satisfactory assessment for the first part of 2011, so that consultation with Ms R could not have had a decisive influence on that report, and in paragraph 64 above that the facts which determined the assessment according to which the applicant’s overall performance for 2011 had been unacceptable was extremely serious, so that it could be excluded that the consultation with Ms R regarding her opinion on the short period during which the applicant had worked under her authority could have influenced the assessment in the report at issue.

The seventh plea, alleging infringement of the rights of the defence, a manifest error of assessment and a breach of the duty of care

94 By his seventh plea, the applicant claims that the contested decision is vitiated by an infringement of the rights of the defence, a manifest error of assessment and, in the alternative, a breach of the duty of care, in that his own self-assessment was not taken into account, in particular, (i) the details requested regarding two questions in the self-assessment form, (ii) his remark concerning the refusal to allow him to participate in training, possibly related to the management of his behaviour, and (iii), the excessive workload.

96 As a preliminary point, it should be pointed out that, in accordance with Article 8 of the ECDC Implementing Rule, the applicant’s self-assessment had to be followed by the appraisal interview with his reporting officer, regarding which that self-assessment should have constituted a central theme. During that interview, the applicant, it is contended, had the opportunity to seek the clarifications he deemed necessary and to highlight the aspects that, from his point of view, were important to assess his performance during the year concerned. As is clear from the response to the eighth plea, the ECDC cannot be criticised for not having organised that interview. It is also apparent from the reply to that plea that, after the applicant had contested the draft appraisal report drawn up following the resumption of the appraisal procedure, in 2014, when he had been invited by an email from the countersigning officer of 10 October 2014, to provide her with a copy of his self-assessment, which he contended was not taken into consideration, the applicant merely stated, in his email of 15 October 2014, that that document should have been in the possession of the ECDC, which indicates, at the very least, a limited involvement in the smooth functioning of that dialogue. Finally, apart from the challenge, by email of 5 November 2014, of the draft appraisal report as approved by the countersigning officer, where he stated that his self-assessment had not been taken into consideration, ‘including the unusually heavy workload described therein’, the applicant had until then limited himself to arguing, without further specification, that this self-assessment had not been taken into account.

97 That said, as regards, first, the two questions to which the applicant claims he did not reply on the ground that they were imprecise, it should be noted, first, that, even though he stated that those questions seemed vague, he nevertheless answered the second. On the other hand, the wording of the other question (How are you able to influence your work and your work situation?) was not likely to render a reply impossible. Moreover, those two questions were already included in the self-assessment form for the year 2010, so that the applicant had had plenty of time, particularly in the context of the appraisal interview for the year 2010, to obtain clarification as to its scope. Finally, it would have been possible for him to address those questions in the appraisal interview for the year 2011. Accordingly, the fact that he did not express himself on those questions cannot constitute a breach of his rights of defence attributable to the ECDC.

98 Secondly, as regards the refusal to provide professional training, it must be held that that issue is irrelevant to the reasons for the negative assessment of the applicant’s overall performance for 2011, relating to his behaviour and not to his legal competence, since he does not claim that he had requested to be able to participate in behaviour management training, but merely mentions that such training exists.

99 Thirdly, with regard to the substantial workload alleged by the applicant, who was the only practicing lawyer from 1 June 2011, it should be noted that it may be held that his legal work had been considered satisfactory until problems arose connected to his behaviour with respect to his new direct line manager, Ms B. However, although the applicant’s workload must necessarily have been reduced once Ms B, who was herself a lawyer, took up duties, it was after she took up those duties that the behaviour of the applicant deteriorated. That question, therefore, is not relevant. In any event, a significant workload cannot render acceptable behaviour which is obstructive, insubordinate and conflictual, and which was the reason for the negative assessment of the applicant’s overall performance in 2011 and, more radically, for the early termination of his contract as a member of the contract staff in February 2012.

The ninth plea, alleging an infringement of the duty of care and breach of the rights of the defence

101 By his ninth plea, the applicant claims that the contested decision is vitiated by an infringement of the duty of care and a breach of the rights of the defence, in that the contested appraisal report is based exclusively on the allegations of Ms B, while, in an email of 31 May 2015, the applicant had drawn the ECDC’s attention to circumstances that could cast doubt on those allegations, namely that Ms B was recruited in 2011 on the basis of inaccurate information as to her professional experience and that she had been dismissed without notice in 2014.

103 It should be noted that it is apparent, from the reasoning given by the countersigning officer to support the confirmation of the applicant’s draft appraisal report, that the insubordination alleged against the applicant did not concern Ms B only. That reasoning refers to a meeting held in December 2011 during which the director of the ECDC was compelled to confirm instructions given to the applicant by Ms B, his direct line manager, which the applicant had persisted in refusing to carry out even though they had already been confirmed by Ms A, Ms B’s direct line manager. That this meeting was held, on 21 December 2011, is confirmed in paragraph 22 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38). The applicant’s persistence in refusing to carry out instructions which he had been given even after they were confirmed, at his request, by his line manager’s immediate superior, pursuant to Article 21a of the Staff Regulations, was supported by the findings of the final report of the investigation carried out in January 2012 concerning the acts of insubordination alleged against the applicant, as was held in paragraph 116 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38).

104 Furthermore, the applicant’s email of 31 May 2015 to which he refers was sent to the ECDC not in the context of the appraisal procedure, but in connection with the implementation of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), and the applicant does not claim to have made any reference to it in connection with the appraisal procedure.

105 Finally, contrary to the applicant’s submission, the facts which the applicant puts forward in this plea, assuming they are true, cannot alter the nature of the facts which determined the negative assessment set out in the contested appraisal report, nor mitigate the seriousness of the behaviour for which he has been criticised. It is common ground that Ms B was the direct line manager of the applicant and the fact, noted above, that the instructions not carried out by him had been confirmed by the management pursuant to Article 21a of the Staff Regulation suffices to demonstrate that those instructions were justified and should have been carried out.

106 It is also apparent from paragraphs 197 to 203 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), that the Civil Service Tribunal itself found that the applicant had questioned instructions that were justified, that were not in any way peculiar and which normally were not such as to give rise to the exchange of multiple emails or the questioning of the professional capacities of the line manager who had given them and that several emails of the applicant, issued between 16 and 20 December 2011, sufficed to show that the applicant’s management had not committed a manifest error of assessment in considering, in the decision to terminate the applicant’s contract, that he had serious difficulties in accepting management decisions and behaved in an obstructive and provocative manner, which had resulted in an irreparable breakdown in the relationship of trust between him and the ECDC.

The 11th plea, alleging a manifest error of assessment and failure to state reasons

108 By his 11th plea, the applicant claims that the contested decision is vitiated by an infringement of Article 22a of the Staff Regulations, in that Ms A and Ms M participated in the appraisal procedure, whereas they should have been excluded on the ground that they were involved in possible irregularities surrounding the hiring of an interim staff member which the applicant had reported to the director of the ECDC.

110 Article 22a(3) of the Staff Regulations lays down the rule that, in so far as he has acted in good faith, an official who has informed his superiors of facts of which he has become aware in the course of or in connection with the performance of his duties which give rise to a presumption of the existence of possible illegal activity, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union, shall not suffer any prejudicial effects on the part of the institution.

111 It should first of all be pointed out that, as the applicant states in paragraph 71 of his application and as is apparent from paragraphs 23 and 52 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), the facts reported by the applicant to the director of the ECDC were brought by the latter to the attention of the European Anti-Fraud Office (OLAF), which decided, on 21 May 2012, not to open an investigation in view of the weakness of the evidence of any irregularities. The applicant was informed of that decision by a letter from the director of the ECDC of 29 June 2012, in which the latter informed him, moreover, that an examination of the facts had not made it possible to identify any illegal activity. Whereas that circumstance does not preclude any possibility that the persons directly or indirectly implicated in the facts reported by the applicant may have developed some bitterness towards him, it does in any event suggest that the persons concerned were not seriously shaken by that reporting and its consequences.

112 Next, it is settled case-law that Article 22a of the Staff Regulations does not offer an official protection against any decision capable of adversely affecting him but only against decisions connected with the accusations made by him (see judgment of 11 July 2013, AN v Commission, F‑111/10, EU:F:2013:114, paragraph 90 and the case-law cited). It is therefore incumbent on the applicant to establish the existence of such a link in the present case, possibly in the form of a set of precise and consistent evidence.

113 In the present case, the applicant implicitly and exclusively bases the present plea on the existence of a presumption of misuse of powers. However, such a presumption is lacking. It should be recalled that neither the existence of a possible irritation of a superior towards a person who works under his authority nor even the existence of a direct complaint by such a person against the superior who must assess his professional performance cannot, as such, without more, call the superior’s impartiality into question (see, to that effect, judgment of 30 June 2015, Z v Court of Justice, F‑64/13, EU:F:2015:72, paragraph 71 and the case-law cited).

114 Moreover, it should be noted, first, that the facts referred to in paragraphs 103 and 106 above, which the Civil Service Tribunal found to be sufficient to support the accusations relating to the applicant’s insubordinate, obstructive and conflictual behaviour, were prior to 22 December 2011, the date on which the applicant first indicated to the director of the ECDC the alleged irregularities reported by him. Secondly, as follows in particular from the response to the fourth and fifth pleas, the proven character of the facts which determined the negative assessment in the contested appraisal report makes it possible to exclude that that report had been drawn up for purposes other than assessing the applicant’s competence, performance and conduct in the service.

115 The present plea must therefore be rejected as unfounded and, consequently, the action as a whole is dismissed.

116 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.

117 Since the applicant has been unsuccessful, he must, having regard to the form of order sought by the ECDC, be ordered to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CJ v ECDC (Civil service - Members of the contract staff - Career evaluation report : Judgment) [2017] EUECJ T-602/16 (13 December 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T60216.html Cite as: ECLI:EU:T:2017:893, EU:T:2017:893, [2017] EUECJ T-602/16

Court of Justice of the European Communities (including Court of First Instance Decisions)