Case T‑511/18

(publication by extracts)

XH

v

European Commission

 Judgment of the General Court (Seventh Chamber), 25 June 2020

(Civil service — Officials — Promotion — 2017 promotion exercise — Decision not to promote — Clarity and precision of a plea in law in the application — Rule requiring correspondence — Challenge of definitive acts — Admissibility — Article 45 of the Staff Regulations — Interim probation report — End-of-probation report — Appraisal report — Factors taken into account for the consideration of the comparative merits — Regularity of the procedure — Liability — Non-material damage)

1.      Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the application — Same subject matter and legal basis — Pleas and arguments not appearing in the complaint but seeking to challenge the validity of the reasoning set out in the response to the complaint — Admissibility

(Staff Regulations of Officials, Arts 90 and 91)

(see paragraph 69)

2.      Actions brought by officials — Prior administrative complaint — Time limits — Matter of public policy — Claim barred by lapse of time — Reopening — Condition — New fact

(Staff Regulations of Officials, Arts 90 and 91)

(see paragraphs 74, 75, 80-83)

3.      Fundamental rights — Respect for private and family life — Medical confidentiality — Access to the content of an official’s medical file by an institution — Interference in the right to respect for private life

(Charter of Fundamental Rights of the European Union, Arts 7 and 52)

(see paragraphs 89, 90, 98)

4.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Separate purposes and functions of the staff reports of established officials and the end-of-probation reports of probationary officials — Taking into account of the end-of-probation report — Precluded

(Staff Regulations of Officials, Arts 34, 43 and 45)

(see paragraphs 124-132, 137, 143-150)

5.      Actions brought by officials — Act adversely affecting an official — Concept — Preparatory act — Measures taken during an official’s probationary period — Precluded

(Staff Regulations, Arts 34, 90 and 91)

(see paragraphs 133-136)

6.      Officials — Promotion — Consideration of comparative merits — Procedures — Probation reports taken into account — Incomplete and irregular personal file — Consequences

(Staff Regulations of Officials, Art. 45)

(see paragraphs 153, 154, 159)

7.      Officials — Non-contractual liability of the institutions — Conditions — Damage — Material harm allegedly caused by a refusal to promote — Damage uncertain as there is no right to promotion

(Staff Regulations of Officials, Art. 45)

(see paragraphs 170-173)

Résumé

By its judgment XH v Commission (T‑511/18), delivered on 25 June 2020, the General Court annulled the decision of the European Commission not to include the applicant in the list of officials promoted in the 2017 promotion exercise. The General Court further awarded compensation to the official concerned for the non-material damage that she had suffered.

The applicant, an official in the European Anti-Fraud Office (OLAF), was recruited at grade AD 5 in a first OLAF unit, with effect from 1 July 2014, her recruitment being subject to a probationary period. Following internal difficulties that the applicant encountered with other members of that unit at the start of her probationary period, she was transferred to a second OLAF unit, with effect from 1 November 2014. An interim probation report indicating those difficulties was drawn up in December 2014 and was subsequently annexed to the end-of-probation report drawn up in March 2015.

On 10 February 2018, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations against the decision of the appointing authority not to promote her in the 2017 promotion exercise (‘the decision not to promote the applicant’/‘the decision not to promote her’), which was rejected by decision of 7 June 2018.

In support of her action for annulment of the decision not to promote her, the applicant alleged, inter alia, that Article 45 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) had been infringed, in so far as her interim probation report and end-of-probation report had been taken into account in the consideration of the comparative merits in the 2017 promotion exercise.

In that regard, the General Court stated, in the first place, that it is apparent from Article 45(1) of the Staff Regulations and Article 4(1)(a) of the decision of the Commission laying down general provisions for implementing Article 45 of the Staff Regulations (1) that, for the purposes of the consideration of the comparative merits in a promotion exercise, the appointing authority is required to take into account, in particular, the appraisal reports that are drawn up for officials. Those appraisal reports constitute an essential criterion for assessment each time the official’s career is taken into consideration for the purposes of adopting a decision concerning his or her promotion.

In the second place, the General Court stated that, while it is true that the appointing authority has the possibility of taking into account other information concerning the administrative and personal situation of the candidates for promotion, this may only be done in exceptional circumstances. Even if additional information could thus be taken into account so as to remedy the lack of an appraisal report, that information must nevertheless be broadly comparable to the information included in appraisal reports, as regards its provenance, the procedure for drawing it up and its purpose. According to the General Court, appraisal reports and reports drawn up during the probationary period have separate purposes and functions.

As regards, first, their respective functions, an appraisal report is intended in particular to provide the administration with periodic information, which is as complete as possible, on the performance of their duties by officials, whereas an end-of-probation report is principally intended to evaluate the probationary official’s fitness to carry out the work corresponding to his or her post and to become an established official.

As regards, secondly, their purpose, the General Court noted that the annual appraisal of an official, which, while focusing on performance, is carried out having regard to the objectives set in advance in agreement with the hierarchical superior, differs from the appraisal of a probationary official, which is carried out with a view to that official becoming established, so that the assessments contained in a probation report cannot be equated to or, therefore, substitute or compensate for those carried out in an appraisal report.

Finally, the General Court stated that, while the appraisal reports are acts adversely affecting the official since they are capable of having an influence over the entire course of that official’s career, that is not the case for measures relating to the progress of the official’s probationary period, such as probation reports, the purpose of which is to prepare the decision of the administration whether to appoint the person concerned as an established official at the end of the probationary period or to dismiss that person, without producing effects of any kind following the adoption of such a decision.

Thus, the General Court concluded that an end-of-probation report, even if it contains a certain number of observations on the official’s or other staff member’s fitness for work, cannot, in principle, be taken into account by a promotion committee.

Therefore, noting that, in the present case, two appraisal reports had been drawn up in respect of the applicant, in the 2015 and 2016 exercises, and that the assessments contained in those reports constituted a proper basis for the consideration of the comparative merits provided for in Article 45(1) of the Staff Regulations, the General Court held, first, that there were no exceptional circumstances justifying the taking into account of the end-of-probation report and the interim probation report annexed to it in the consideration of the applicant’s comparative merits in the 2017 promotion exercise. The General Court stated that, secondly, and in any event, unlike the appraisal reports, the applicant’s interim probation report had not been drawn up either in order to allow for an objective appraisal of the applicant or in order to assist in assessing her career development and, moreover, it contained unusual and harsh criticisms, which was a further reason for precluding the interim probation report and the end-of-probation report, to which the former was annexed, being taken into account in the consideration of the applicant’s comparative merits.

Therefore, the General Court concluded that the taking into account, on the part of the competent appointing authority, of the reports relating to the applicant’s probationary period constituted an irregularity capable of vitiating the 2017 promotion procedure in so far as it concerned the applicant. Since the outcome of the 2017 promotion procedure could have been different in the absence of that procedural irregularity, the General Court annulled the decision not to promote the applicant. Furthermore, it ordered the Commission to pay to the applicant the sum of EUR 2 000 as compensation for the non-material damage that she had suffered.

1      Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations, published in Administrative Notices No 55-2013 of 19 December 2013