JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

12 June 2002

Case T-187/01

Arnaldo Mellone

v

Commission of the European Communities

‛Officials — Staff report — Action for annulment — Action for damages’

Full text in French   II-389

Applicationfor:

first, annulment of the decision of 10 July 2000 by which the Director-General of the Directorate-General for Employment and Social Affairs declared definitive the applicant's staff report for the period from 1 July 1995 to 30 June 1997 and, in so far as may be necessary, of the rectifying note of 18 July 2000 and of the decision of the Vice-President of the Commission of 24 April 2001 rejecting his complaint; second, for a declaration by the Court that his staff report for 1995-1997 has not been definitively drawn up and that it should be removed from his personal file; and, third, for compensation for the professional and nonmaterial damage suffered by the applicant, amounting to EUR 10000.

Held:

The application is dismissed. The parties are to bear their own costs.

Summary

1. Officials — Actions — Subject-matter — Direction to the administration — Inadmissibility

   (Staff Regulations, Art. 91)

2. Officials — Reports procedure — Staff report — Change in the assessments compared with previous report — Obligation to state reasons — Scope

   (Staff Regulations, Art. 43)

3. Officials — Reports procedure — Staff report — Description of the duties of the official assessed — Principal administrator who has performed the functions of an assistant head of unit

   (Staff Regulations, Art. 43)

4. Officials — Reports procedure — Staff report — Judicial review — Limits

   (Staff Regulations, Art. 43)

5. Officials — Actions — Action for damages — Origin — Employment relationship — Legal basis

   (Art. 236 EC; Staff Regulations, Arts 90 and 91)

6. Officials — Reports procedure — Staff report — Drawing up — Delay — Administrative fault

   (Staff Regulations, Art. 43)

1.  It is not for the Community judicature to issue directions to the administration or to make declaratory rulings in the context of a review of legality under Article 91 of the Staff Regulations.

   An applicant who requests the Court to declare that his staff report has not been definitively drawn up and must not be included in his personal file, but removed from it, is putting forward a claim for a declaratory ruling to be made against, or for a direction to be issued to, the administration.

   (see paras 16-17)

   See: T-21/95 and T-186/95 Mazzocchi-Alemanni v Commission [1996] ECRSC I-A-501 and II-1377, para. 44

2.  The administration is obliged to state in a sufficient and detailed manner the reasons on which the staff 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. Assessments which indicate, having regard to his grade, that the official did not demonstrate the adaptability, flexibility and creative approach required for the area of work covered by the unit to which he was assigned and for the functions of an assistant head of unit which he was effectively performing in that unit, and that his participation in the work of the unit suffered as a result of an attitude considered too hierarchical to be consistent with the unit's working methods, are sufficiently specific and substantiated to satisfy the obligation to state reasons.

   Since the staff report contains a sufficient statement of reasons, the appeal assessor cannot be required to provide further explanations of the reasons which led him not to follow the recommendations of the Joint Committee on Staff Reports unless that advisory body's opinion mentions special circumstances likely to cast doubt on the validity or proper foundation of the original assessment and therefore calls for a specific assessment from the appeal assessor as to any appropriate conclusions to be drawn from those circumstances.

   (see paras 27, 30-31, 33)

   See: 173/82, 157/83 and 186/84 Castille v Commission [1986] ECR 497, para. 27; T-1/91 Della Pietra v Commission [1992] ECR II-2145, paras 30 and 32; T-212/97 Hubert v Commission [1999] ECRSC I-A-41 and II-185, para. 79

3.  The staff report of a principal administrator who has been performing the functions of an assistant head of unit, which, in addition to the tasks for which the latter was specifically responsible, also mentions the general tasks of the unit in question, does not misrepresent the responsibilities of the official assessed. Having regard to that official's grade and hierarchical status, the administration was entitled to expect him not only to perform his specific tasks but, in addition, to participate in the various tasks for which the unit was responsible and to oversee their performance by the officials and other staff working under his control.

   (see paras 46-47)

4.  Assessors enjoy a very wide discretion when judging the work of persons upon whom they must report. It is not for the Court, save in the case of manifest errors as to the facts or misuse of powers, to review the merits of the assessment made by the administration of the occupational abilities of an official, where it involves complex value-judgments which, by their very nature, are not amenable to objective verification.

   (see para. 51)

   See: 36/81, 37/81 and 218/81 Seton v Commission [1983] ECR 1789, para. 23; T-212/97 Hubert v Commission [1999] ECRSC I-A-41 and II-185, para. 142

5.  Where it originates in the employment relationship between the person concerned and the institution, a dispute between an official and the institution which employs or employed him concerning compensation for damage must be considered under Article 236 EC and Articles 90 and 91 of the Staff Regulations and, as regards in particular the question of admissibility, lies outside the sphere of application of Articles 235 EC and 288 EC.

   (see para. 74)

   See: 9/75 Meyer-Burckhardt v Commission [1975] ECR 1171, para. 7; T-177/94 and T-377/94 Altmann and Others v Commission [1996] ECR II-2041, para. 149

6.  The administration must ensure that staff reports are drawn up periodically on the dates laid down by the Staff Regulations and that they are drawn up in a proper form, both for reasons of sound administration and in order to safeguard the interests of officials. The administration has a reasonable period at its disposal and any failure to act within that period must be justified by the existence of special circumstances. A delay in the drawing up of a staff report may in itself be prejudicial to the official for the simple reason that his career progress may be affected by the absence of such a report at a time when decisions concerning him must be taken. In the absence of special circumstances justifying the delays found to have occurred, the administration commits an administrative fault giving rise to liability on its part.

   (see paras 77-78)

   See: 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, para. 15; T-59/96 Burban v Parliament [1997] ECRSC I-A-109 and II-331, para. 44