JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

30 September 2009

Case T-193/08 P

Carina Skareby

v

Commission of the European Communities

(Appeal – Civil service – Officials – Reports – Career development report – Appraisal year 2004 – Fixing of objectives and communication of appraisal criteria)

Appeal: brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 6 March 2008 in Case F-46/06 Skareby v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000 seeking to have that judgment set aside.

Held: The judgment of the European Union Civil Service Tribunal (Second Chamber) of 6 March 2008 in Case F-46/06 Skareby v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000 is set aside to the extent that the Civil Service Tribunal dismissed the claim based on the failure to fix objectives in advance, the failure to communicate the appraisal criteria in advance, and Ms Carina Skareby’s job description. The decision of 31 August 2005 establishing Ms Skareby’s career development report for the period from 1 January to 31 December 2004 is annulled to the extent that it concerns point 6.1, entitled ‘Efficiency’. For the rest, the action brought before the Civil Service Tribunal as Case F-46/06 is dismissed. The Commission of the European Communities is ordered to pay, in their entirety, the costs of the present instance and of the procedure before the Civil Service Tribunal.

Summary

1.      Appeal – Pleas in law – Distortion of the clear sense of the evidence – Material inaccuracy of the findings of fact resulting from the documents in the file – Admissibility – Incomplete examination of the facts – Admissibility

(Art. 225 EC)

2.      Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based

(Rules of Procedure of the Court of First Instance, Art. 44(1))

3.      Officials – Reports procedure – Career development report – Assessors’ discretion

(Staff Regulations, Art. 43)

4.      Officials – Reports procedure – Career development report – Delegation to the person reported on of duties which are the assessors’ responsibility – Not permissible

(Staff Regulations, Art. 43)

5.      Appeal – Pleas in law – Distortion of the clear sense of the evidence – Material inaccuracy of the findings of fact resulting from the documents in the file – Burden of proof

(Art. 225 EC)

1.      Complaints relating to the findings of fact by the court of first instance are admissible at the appeal stage where those complaints support the claim that the inaccuracy of those findings results from the documents in the file or an incomplete examination of the facts.

(see para. 48)

See: C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paras 392 to 405; T-253/06 P Chassagne v Commission [2008] ECR-SC I-B-1-0000 and II-B-1-0000, para. 57, and the case-law cited therein

2.      In reviewing the compliance of an application with the requirements of Article 44(1) of the Rules of Procedure of the Court of First Instance, the contents of statements made at a later stage in the proceedings are, by definition, not relevant.

(see para. 61)

See: T-144/04 TF1 v Commission [2008] ECR II‑761, para. 30 and the case-law cited therein

3.      As far as concerns the reporting procedure for officials, reporting officers have the widest discretion when judging the work of persons upon whom they must report and it is not for the court to interfere with their assessments or to review their validity, review by the Community judicature of the content of the reports produced by the reporting officers being limited to ensuring that the procedure has been conducted in a regular manner.

Regarding that review of the regularity of the procedure, in cases where a Community institution has discretion, compliance with the procedural guarantees conferred by the Community legal order is even more fundamentally important.

The particularly wide discretion enjoyed by the reporting officers for the purpose of reporting on an official must therefore be counterbalanced by especially scrupulous compliance with the rules governing the organisation of the report and the conduct of the procedure laid down to that end.

(see paras 68-70)

See: C-269/90 Technische Universität München [1991] ECR I‑5469, para. 14; C-405/07 P Netherlands v Commission [2008] ECR I-8301, paras 56 and 57; T‑23/91 Maurissen v Court of Auditors [1992] ECR II‑2377, para. 41; T‑18/93 Marcato v Commission [1994] ECR-SC I‑A‑215 and II‑681, para. 45; T‑346/94 France-aviation v Commission [1995] ECR II‑2841, paras 32 to 34; T‑95/98 Gogos v Commission [2000] ECR-SC I‑A‑51 and II‑219, para. 37; T‑144/03 Schmit v Commission [2005] ECR-SC I‑A‑101 and II‑465, para. 70 and the case-law cited therein

4.      The delegation to the person reported on of duties which are intrinsically the responsibility of the reporting officer alone, such as the fixing of objectives for the person reported on, conflicts not just with Article 8(5), fourth paragraph, under (b) of the general implementing provisions adopted by the Commission pursuant to Article 43 of the Staff Regulations, but also with the principle that officials should be treated equally as regards the reporting procedure. Career development reports are important elements in the promotion procedures, where officials are selected for promotion in particular on the basis of a comparative consideration of their career development reports. In the light of the purpose of those reports, the principle of equal treatment demands, in all cases, a strict separation between the duties of the reporting officer and those of the person reported on.

(see paras 80-81)

See: T‑188/01 to T‑190/01 Tsarnavas v Commission [2003] ECR-SC I‑A‑95 and II‑495, paras 97 and 98; T‑175/02 Lebedef v Commission [2004] ECR-SC I‑A‑73 and II‑313, paras 25 and 26

5.      In giving precedence to mere unilateral and imprecise statements by a Community institution over express denials by an applicant on a matter on which the burden of proof lies with the institution, the court of first instance conducted an incomplete examination of the facts, so that the contested judgment is vitiated by a material inaccuracy in the findings, resulting from the documents in the file.

(see para. 87)

See: judgment of 6 December 2007 in C-59/06 P Marcuccio v Commission, not published in the ECR, paras 67, 68 and 70