JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

12 September 2007

Case T-249/04

Philippe Combescot

v

Commission of the European Communities

(Civil service – Officials – Psychological harassment – Duty to provide assistance – Career development report for the period 2001/2002 – Action for annulment – No legal interest in bringing proceedings – Action for damages)

Application: first, for a declaration that the conduct of the applicant’s hierarchical superiors is unlawful and that the applicant is entitled to assistance, and annulment of the applicant’s career development report for the period from 1 July 2001 to 31 December 2002 and, secondly, payment of damages to compensate the applicant for the loss allegedly suffered.

Held: The action is dismissed. Each of the parties is to bear its own costs.

Summary

1.      Procedure – Representation of parties

2.      Officials – Actions – Action for damages – Pre-litigation procedure

(Staff Regulations, Arts 90 and 91)

3.      Officials – Actions – Interest in bringing proceedings

(Staff Regulations, Arts 90 and 91)

4.      Officials – Actions – Claim for compensation linked to an application for annulment

(Staff Regulations, Arts 90 and 91)

5.      Officials – Reports procedure – Existence of differences of opinion between an official and his immediate superior

((Staff Regulations, Arts 14 and 43)

6.      Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

7.      Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

8.      Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

9.      Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

1.      The procedural rules applicable before the Court do not prevent a party from establishing a single authority covering a number of cases before the Court in which it intends to take part and, consequently, do not prevent the same authority from being produced by the representative in question in a number of different actions.

(see para. 22)

2.      If an official wishes to challenge an act adversely affecting him, he may submit a complaint to the appointing authority directly pursuant to Article 90(2) of the Staff Regulations, and, if it is rejected, bring an action before the Court for annulment of that act or for damages or both.

On the other hand, if the damage alleged by the official does not originate in an act adversely affecting him, he can only initiate the procedure by submitting to the appointing authority a request under Article 90(1) of the Staff Regulations, which, if rejected, will constitute a decision adversely affecting him against which he may submit a complaint and which may be the subject of an action for annulment and/or an action for compensation.

An official’s assertion of his right to assistance is not directed against an act adversely affecting him and cannot therefore be regarded as a complaint under Article 90(2) of the Staff Regulations. It constitutes a request pursuant to Article 90(1) of the Staff Regulations, regardless of the title chosen by the official, which cannot be binding on the Court.

(see paras 30-32)

See: T‑406/03 Ravailhe v Committee of the Regions [2005] ECR-SC I‑A‑19 and II‑79, para. 41, and the case-law cited therein; T-285/04 Andrieu v Commission [2006] ECR-SC I-A-2-161 and II-A-2-775, para. 133, and the case-law cited therein

3.      In order for an official who has entered retirement to be able to bring an action for annulment of a decision of the appointing authority, he must retain a personal interest in the annulment of the contested decision.

A career development report, as an internal document the primary function of which is to provide the administration with periodic information on the performance of their duties by officials, plays an important part in the progress of the career of an official, mainly as regards transfers and promotions. It therefore in principle affects the interest of the person assessed only until the termination of his service.

An application for annulment of a career development report submitted by a retired official in receipt of a permanent and total invalidity pension after bringing an action is thus inadmissible where, first, the decision to retire him has become definitive and, second, there is no indication of a probable improvement in his state of health allowing him to return to the service of the institution.

However, although he no longer has any legitimate interest in having the report annulled, he still has an interest in seeking a ruling on the lawfulness of the report in connection with a claim for compensation for the professional, material and non-material damage which he considers that he has suffered owing to the conduct of the institution concerned.

(see paras 36-38, 47)

See: T-20/89 Moritz v Commission [1990] ECR II‑769, para. 18; T‑112/94 Moat v Commission [1995] ECR-SC I‑A‑37 and II‑135, para. 26; T‑6/96 Contargyris v Council [1997] ECR-SC I‑A‑119 and II‑357, para. 32; T-97/94 N v Commission [1998] ECR-SC I‑A‑621 and II‑1879, paras 25 and 26, and the case-law cited therein

4.      The rule developed in the case-law that the inadmissibility of a claim for annulment entails that of the claim for compensation, where there is a close link between the two claims, is expressly designed to prohibit an official who has failed to contest within the prescribed period a decision of the appointing authority which has adversely affected him circumventing the consequences of his being out of time by bringing an action for damages based on the purported unlawfulness of that decision.

Consequently, in a claim for compensation for the loss allegedly suffered because of the unlawfulness of a career development report contested within the prescribed period by an action for annulment, the fact that the claim for annulment has become inadmissible after the action was brought for a reason beyond the applicant’s control, namely his being retired, does not entail the inadmissibility of the claim for compensation. The fact of declaring the claim for compensation admissible does not have the effect of allowing the applicant to circumvent the consequences of his being out of time because he failed to follow the correct procedure for seeking annulment of the act which he claims to be unlawful.

(see paras 43-44, 46)

See: 59/65 Schreckenberg v Commission [1966] ECR 543, 551; 4/67 Collignon v Commission [1967] ECR 365, 373; 9/75 Meyer-Burckhardt v Commission [1975] ECR 1171, para. 11; 401/85 Schina v Commission [1987] ECR 3911, paras 10 and 13; 346/87 Bossi v Commission [1989] ECR 303, paras 31 and 34; T‑309/03 Camós Grau v Commission [2006] ECR II‑1173, para. 76

5.      Even though the possibility cannot be excluded that differences between an official and his immediate superior may cause a degree of irritation on the part of the immediate superior, that possibility does not, as such, imply that the immediate superior is not in a position to assess objectively the merits of the person concerned.

Even if an immediate superior feels a degree of irritation towards an official who is being assessed under the appraisal system introduced by the Commission through the general implementing provisions for Article 43 of the Staff Regulations, the intervention of the second reporting officer and the countersigning officer is such as to counterbalance the impact of that circumstance. The rules providing for the intervention of the countersigning officer in the appraisal process must be regarded as a guarantee capable of cancelling out any abstract risk of conflict of interests on the part of the reporting officer.

(see paras 71, 75)

See: T‑7/98, T‑208/98 and T‑109/99 De Nicola v EIB [2001] ECR‑SC I‑A‑49 and II‑185, para. 188; T‑157/04 De Bry v Commission [2005] ECR-SC I‑A‑199 and II‑901, para. 46

6.      It is not for the Court to substitute its assessment for that of the persons responsible for appraising the work of the official under appraisal. The institutions of the Community enjoy a wide discretion in appraising the work of their officials. Value judgements relating to officials in career development reports are not subject to review by the Court except as regards any irregularities of form or manifest errors of fact vitiating the assessments made by the administration or any misuse of power.

(see para. 78)

See: Andrieu v Commission, para. 99, and the case-law cited therein

7.      The fact that a reporting officer did not refer, in his comments in a career development report, either to the self-appraisal of the official reported on or to an internal report on the work of his department does not prove a lack of impartiality on the part of the reporting officer or constitute a manifest error of assessment on the part of the institution concerned.

Firstly, the mere fact that the reporting officer did not reflect all the elements of an official’s self-appraisal in his comments cannot in itself suffice to establish that an institution failed to take into account all relevant facts in the case at issue. Indeed, the appraisal procedure itself would cease to have any purpose if the official under appraisal played a major role in it and the role of the reporting officer were reduced to refuting his assertions.

Secondly, a report which has been drawn up for purposes other than the appraisal of officials is not, as a general rule, a factor that must be taken into consideration by the reporting officer when drawing up a career development report.

(see paras 81-83)

See: Andrieu v Commission, para. 92

8.      The administration is obliged to state in a sufficient and detailed manner the reasons on which career development reports are based. In certain situations particular care must be taken with that statement of reasons.

A reporting officer is not required to provide a more detailed statement of reasons for a career development report by giving specific examples to support his value judgements. He is also not required to state the reasons for his decision to depart from the self-appraisal of the official under appraisal.

(see paras 84, 86)

See: T‑16/03 Ferrer de Moncada v Commission [2004] ECR-SC I‑A‑261 and II‑1163, paras 49, 50, 53 and 54

9.      The different categories under appraisal in a career development report are not entirely separate from each other. An official’s ability and conduct will usually have an effect on his efficiency. However, in so far as other factors may affect the general quality of his performance, it is conceivable that an official, in performing his duties, is less good in one field than in others and therefore that a career development report may contain a positive assessment under one heading and highly negative assessments under others.

(see para. 87)