JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

15 March 2007

Case F-111/05

Carlos Sanchez Ferriz

v

Commission of the European Communities

(Officials – Appraisal – Career development report – 2001-2002 appraisal)

Application: brought under Articles 236 EC and 152 EA, in which Mr Sanchez Ferriz seeks annulment of his career development report for the period from 1 July 2001 to 31 December 2002.

Held: The application is dismissed. Each party is ordered to bear its own costs.

Summary

1.      Officials – Actions – Action against a career development report

(Rules of Procedure of the Court of First Instance, Arts 64 and 65; Staff Regulations, Arts 26, seventh para., and 43)

2.      Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

3.      Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

4.      Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

5.      Plea of illegality – Scope – Measures the illegality of which may be pleaded

(Art. 241 EC)

1.      In an action brought by an official against his career development report, a plea alleging that the existence of an electronic file infringes the last paragraph of Article 26 of the Staff Regulations, in that it precludes the transmission to the Community judicature of the entire personal file of that official, even if well founded, is in no way capable of calling into question the lawfulness of the disputed career development report. At the very most, that argument could make it possible to claim that the Community judicature did not have at its disposal, in the case before it, the items of information provided for by the Staff Regulations. However, the lawfulness of the assessment by the Community judicature of action brought by an official is in no way subject to the defendant institution’s compliance with its obligation laid down in Article 26 of the Staff Regulations to communicate the personal file of that official. It is for the Community judicature alone to assess whether it is appropriate to adopt any measures of organisation of procedure and to order any measure of inquiry.

(see para. 31)

See:

T-47/04 Milbert and Others v Commission [2006] ECR-SC I‑A‑2‑281 and II‑A‑2‑1455, para. 83

2.      The fact that, in drawing up career development reports, reporting officers take account of the target average which is indicated to them does not mean that their freedom to make their own judgments is limited to an extent contrary to Article 43 of the Staff Regulations. On the contrary, the target average system, as introduced in the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, is such as to further the freedom of the officers reporting on the officials under appraisal and to promote the award of a mark representative of the merits of those officials.

First, that average, which expresses, in mathematical form, the assessment of the performance of an average official, does not limit the scope for reporting officers to differentiate in the assessments made individually of the tasks performed by each official according to the degree to which his performance deviates from that average, either above or below it.

Secondly, the indication of a target average of 14, on a points scale from 0 to 20, makes it possible to prevent the risk of inflation of the average mark, which would have the effect of reducing the spread of points actually used by reporting officers and therefore undermine the purpose of reporting which is to reflect as faithfully as possible the merits of the officials assessed and to enable an effective comparison to be made of them.

Thirdly, the indication of a target average also makes it possible to reduce the risk of a disparity in the averages of the marks given by the different directorates general which would not be based on objective considerations connected with the merits of the officials assessed.

Fourthly, the target average system takes account of the most commonly observed reality, namely a homogeneous distribution of the officials assessed around an average level of merit represented by the target average. In addition, the system established by the General Provisions for Implementing Article 45 of the Staff Regulations, adopted by the Commission, allows reporting officers, where the particular situation of a department differs from that common reality, also to depart from the target average. As is clear from Article 6(1) of the General Implementing Provisions, no consequence is attached to exceeding the target average by one point.

(see paras 40-45)

See:

T-43/04 Fardoom and Reinard v Commission [2005] ECR-SC I‑A‑329 and II‑1465, paras 52, 54 and 55

F-19/05 Sanchez Ferriz v Commission [2006] ECR-SC I‑A‑1‑41 and II‑A‑1‑135, para. 42

3.      The freedom of reporting officers to make their own judgments is not limited in a manner contrary to Article 43 of the Staff Regulations by internal directives relating to the drawing up of career development reports providing for three reference bands which correspond to indicative percentages of the personnel and which authorise different rates of career progression, with one band from 17 to 20 points (fast career) for a maximum of 15% of officials, one band from 12 to 16 points (normal career) for approximately 75% and one band from 10 to 11 points (slow career) for a maximum of 10% of officials .

The reference bands are given for guidance, are the result of observing past marks and no sanction is attached to non-compliance with them. The indication of reference bands merely reflects the most commonly observed reality, without prejudice to the freedom of the appraisal to depart from them when the particular situation of the officials assessed warrants it.

(see paras 47-50)

See:

Fardoom and Reinard v Commission, para. 61

Sanchez Ferriz v Commission, para. 49

4.      The freedom of the reporting officer to form his own judgments when drawing up a career development report is not restricted by the part played by the countersigning officer in the appraisal procedure. The countersigning officer is a reporting officer in the full sense of the term. Under Article 7(4) of the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by the Commission, it is the reporting officer and the countersigning officer who draw up the career development report. In addition, under Article 7(5) of those General Implementing Provisions, where the official indicates his wish to hold a dialogue with the countersigning officer, the latter may either amend or confirm the career development report. It follows that, under the appraisal method upheld as most appropriate by the Commission, the freedom of reporting officers to form their own judgments in order to make a true assessment of officials on the basis of the three assessment criteria laid down is not at all restricted. Consequently, the countersigning officer’s right to amend the reporting officer’s assessment – and indeed the appeal assessor’s right to amend the countersigning officer’s assessment – does not constitute an infringement of Article 43 of the Staff Regulations.

(see paras 52-53)

5.      The scope of an objection of illegality must be limited to what is necessary for determination of the dispute. Article 241 EC is not intended to enable a party to contest the applicability of any measure of general application in support of any action whatsoever. The general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question.

(see para. 59)

See:

21/64 Macchiorlati Dalmas e Figli v High Authority [1965] ECR 175, 188; 32/65 Italy v Council and Commission [1966] ECR 563, 594

T-6/92 and T-52/92 Reinarz v Commission [1993] ECR II‑1047, para. 57; T‑60/99 Townsend v Commission [2000] ECR-SC I‑A‑11 and II‑45, para. 53