(Appeal Career development report Legal interest in bringing proceedings Official in a state of total permanent invalidity)
- The issue at the heart of this appeal is whether an official retains an interest in contesting a staff report where, after lodging his action challenging that report, he is found to be suffering from total permanent invalidity.
- In its judgment of 7 February 2007 in Gordon v Commission, (2) the Court of First Instance of the European Communities took the view, in line with the arguments of the Commission of the European Communities in that regard, that such an official no longer has an interest in bringing proceedings and that his action must be declared inadmissible.
- The Court of First Instance based that view on the case-law according to which an official has a legal interest in bringing proceedings challenging a staff report only if that official still has a career before him, that is, until termination of his service. It stated that an official who is recognised as being in a state of total permanent invalidity is, pursuant to the applicable provisions, to be retired, and that that official must be regarded as having terminated his service permanently, although he may, in certain circumstances, be reinstated if his state of health allows. According to the Court of First Instance, the mere possibility of that occurring is not sufficient to establish that an official in such a situation has a vested and present interest in bringing proceedings challenging his staff report.
- In the judgment under appeal, the Court of First Instance also dismissed the appellant's claim for damages as inadmissible.
- In this Opinion, I shall, first of all, put forward the grounds on which, in my view, the case-law according to which an official no longer has an interest in bringing proceedings challenging a staff report on account of the termination of his service is incorrect.
- Next, I shall submit that, even on the assumption that that case-law is well founded, it is not applicable in the case of an official who is recognised as being in a state of total permanent invalidity, because such an official may be reinstated in the service. I shall propose that the Court find that that same official does indeed have a vested and present interest in contesting his staff report.
- I conclude from this that the Court of First Instance erred in law and that the judgment under appeal must be set aside in so far as it declares that there is no longer any need to rule on the application for annulment.
- Next, I shall say that the judgment under appeal must be upheld in so far as it dismisses the action for damages as inadmissible.
- Finally, I shall propose that the Court rule on the application for annulment brought by the appellant, and I shall put forward the grounds on which, in my view, that application must be declared to be well founded.
I Legal framework
- The relevant legal framework includes the provisions relating to the appraisal of officials and those which concern the situation of officials recognised to be in a state of invalidity.
A The provisions relating to the appraisal of officials
- The provisions governing the appraisal of officials have been described in the judgment under appeal as follows.
- Under Article 43 of the Staff Regulations of the European Communities in the version applicable to the present case, (3) the ability, efficiency and conduct in the service of each official, with the exception of those in grades A 1 or A 2, is to be the subject of a periodical report made at least once every two years as provided for by each institution in accordance with Article 110 of the Staff Regulations.
- On 26 April 2002 the Commission adopted a decision on general provisions for implementing Article 43 of the Staff Regulations. (4) This introduced a new system of reporting.
- Under the transitional rule set out in Article 4(1) of GIP 43, for the first reporting period under the new system the career development report provided for by Article 6 of GIP 43 (5) covers the period from 1 July 2001 to 31 December 2002.
- The appraisal and promotion exercises are connected in so far as, in accordance with Article 5(3) of the General Provisions for implementing Article 45 of the Staff Regulations adopted by the Commission on 26 April 2002, an official is, in principle, promoted when the total of his merit points generated by the CDR marking and the priority points awarded in the promotion procedure accumulated in the course of one or more exercises exceeds the 'promotion threshold'.
- In that context, Article 6(1) of the General Provisions for implementing Article 45 of the Staff Regulations provides that, for Directorates-General whose average merit points for a given grade exceed by more than one point the average concerned for the Commission, the quota of priority points is to be reduced by an amount corresponding to the excess, unless the Directorates-General give valid reasons for the excess.
- The Commission communication published in AdministrativeNotices 99'2002 of 3 December 2002 under the title '(Transitional) Staff Appraisal Exercise 2001-02' (6) invites the Directorates-General to appraise their staff in line with a target average of 14 out of 20 and observes that Directorates-General that achieve an average above 15 for a particular grade will be penalised by a reduction in the quota of priority points unless the Directorate-General in question gives valid reasons for exceeding the average.
B The provisions concerning the situation of officials recognised to be in a state of invalidity
- Article 53 of the Staff Regulations states:
'An official to whom the Invalidity Committee finds that the provisions of Article 78 apply shall automatically be retired on the last day of the month in which the appointing authority [(7)] recognises his permanent incapacity to perform his duties.'
- Article 78 of the Staff Regulations provides:
'An official shall be entitled, in the manner provided for in Articles 13 to 16 of Annex VIII [to the Staff Regulations], to an invalidity pension in the case of total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket.
...'
- Articles 13 to 16 of Annex VIII to the Staff Regulations are worded as follows:
'Article 13
Subject to the provisions of Article 1(1), an official aged less than 65 years who at any time during the period in which he is acquiring pension rights is recognised by the Invalidity Committee to be suffering from total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket, and who is obliged on these grounds to end his service with the Communities shall be entitled, for so long as such incapacity persists, to invalidity pension as provided for in Article 78 of the Staff Regulations.
...
Article 14
The right to receive payment of invalidity pension shall have effect from the first day of the calendar month following the official's retirement under Article 53 of the Staff Regulations.
When the former official ceases to satisfy the requirements for payment of the pension he must be reinstated in the first post corresponding to his career bracket which falls vacant in his category or service, provided that he satisfies the requirements for that post. If he declines the post offered to him, he shall retain his right to reinstatement when the next vacancy corresponding to his career bracket occurs in his category of service subject to the same proviso; if he declines a second time, he may be required to resign; ...
Article 15
While a former official drawing invalidity pension is aged less than 60 years, the institution may have him medically examined periodically to ascertain that he still satisfies the requirements for payment of the pension.
Article 16
Where a former official who has been drawing invalidity pension is reinstated in his institution or in any other institution of the Communities, the time during which he received invalidity pension shall be included for the purpose of calculating his retirement pension, without payment by him of arrears of contributions.'
II Facts
- The material facts are described in the judgment under appeal as follows.
- At the time when the action was lodged, the applicant was an official in grade LA 5 employed in the Directorate-General for Translation.
- On the evening of 11 March 2003 he received his CDR for the period from 1 July 2001 to 31 December 2002. On the morning of 12 March 2003 he informed the countersigning officer of his wish to hold a dialogue with him pursuant to Article 7(5) of GIP 43. He then took two and a half days' leave in the afternoon. On the same day the countersigning officer confirmed the applicant's CDR after noting on it that 'it was not possible to arrange [the dialogue requested by the applicant] as the person concerned left on leave in the afternoon of 12 [March] 2003'.
- On 25 March 2003 the applicant held a dialogue with the countersigning officer. On the same day, at the applicant's request, the matter was referred to the Joint Evaluation Committee. (8) On 11 April 2003 the JEC delivered its opinion. That opinion states '[the JEC] finds that the formal dialogue has not taken place [and] consequently ... recommends that the appeal assessor ask the countersigning officer to hold the dialogue'. Another meeting was held between the applicant and the countersigning officer on 14 April 2003.
- On 25 April 2003 a meeting took place between the applicant and the appeal assessor. The appeal assessor gave his decision on 28 April 2003. He confirmed the applicant's CDR, stating that 'it was noted that [the applicant] had requested that a formal dialogue be held on 12 March [2003], but it did not take place because of the leave requested by the person concerned ... and taking account of the original deadline for finalisation of the exercise (15 March 2003)' and that 'two meetings subsequently took place with the countersigning officer on 25 March 2003 and 14 April 2003'. In a note of the same date, the appeal assessor transmitted his decision to the chairman of the JEC. In that note, he stated the reasons why the formal dialogue requested by the applicant could not be organised and added that 'the comments of the countersigning officer were made ... taking account of those points, the reasons stated by the person concerned and after hearing [the applicant's] immediate superior'. He also mentioned that 'two formal meetings had been organised on 25 March 2003 and 14 April 2003 with the countersigning officer'.
- On 25 July 2003 the applicant lodged a complaint pursuant to Article 90 of the Staff Regulations against the decision of 28 April 2003 confirming his CDR. By decision of 11 December 2003, which was notified to the applicant on 2 February 2004, the appointing authority rejected the applicant's complaint. (9)
- Following the findings of the invalidity committee of 1 February 2005, stating that the applicant was 'suffering from total permanent disability and [could] no longer perform the duties corresponding to a post in his grade', by decision of 15 February 2005 the appointing authority decided that the applicant was 'to be retired with an invalidity allowance in accordance with the provisions of the [third] paragraph ... of Article 78 of the Staff Regulations'. The decision took effect on 28 February 2005.
III Procedure before the Court of First Instance and the forms of order sought by the parties
- By application lodged at the Registry of the Court of First Instance on 7 May 2004, the applicant brought an action for annulment of the contested decision and for damages.
- On 1 March 2005 the Commission requested the Court of First Instance to order that there was no need to adjudicate on the application for annulment because the applicant was retired on the ground of total permanent invalidity. It also disputed the admissibility of the claim for damages. The applicant lodged his observations on that request on 6 April 2005.
- By order of the Court of First Instance of 10 June 2005, the request for an order that there was no need to adjudicate was joined to the substance of the case and costs were reserved.
- By document lodged at the Registry of the Court of First Instance on 6 October 2005, the applicant requested the Court of First Instance to reopen the written procedure or accept new evidence. The Commission did not lodge observations on this application. The observations and evidence submitted by the applicant in support of his request were added to the file temporarily and the decision on admissibility reserved.
- The parties presented oral argument and answered questions put to them by the Court at the hearing on 31 May 2006. The Commission also produced the documents which it had been requested to lodge.
- On this occasion, it was decided, before closing the oral procedure, to allow the applicant to submit observations concerning the number of pages translated by him during the period covered by the contested CDR. The applicant submitted his observations within the period laid down and the Commission lodged its observations on that reply on 14 June 2006.
- By decision of the President of the Third Chamber of the Court of First Instance of 20 June 2006, the oral procedure was closed.
IV The judgment under appeal
- The Court of First Instance ruled on the application for annulment and on the claim for damages and, finally, on the applicant's requests for measures of organisation of procedure.
A The application for annulment
- The Court of First Instance held that there was no longer any need to rule on the application for annulment for the following reasons:
'27 It should be recalled, first, that while a legal interest in bringing proceedings, to which the admissibility of an action is subject, is to be appraised at the time when that action is brought, [(10)] this cannot prevent the Court from finding that there is no need to adjudicate on the action where the applicant who initially had a legal interest lost all personal interest in the annulment of the contested decision on account of an event occurring after that application was lodged. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he must retain a personal interest in the annulment of the contested decision. [(11)] In addition, according to settled case-law, an applicant must show a vested and present interest in the annulment of the contested act such that, if the interest which an applicant claims concerns a future legal situation, he must demonstrate that the prejudice to that situation is already certain. [(12)]
28 Secondly, in relation to actions for annulment of a CDR, it must be pointed out that a CDR is an internal document, the primary function of which is to provide the administration with periodic information on the performance of their duties by officials [(13)] and which, for the official himself, therefore plays an important part in the progress of his career, mainly as regards transfer and promotion. It follows that the CDR in principle only affects the interest of the person assessed in so far as that person still has a career ahead of him, that is, until termination of his service. As a result, after termination of his service, the official does not have any interest in bringing or pursuing an action challenging his CDR, save to establish the existence of a particular fact demonstrating a current, personal interest in obtaining annulment. [(14)]
29 In the present case, the Commission contends that, having retired pursuant to Article 78 of the Staff Regulations on the ground of total permanent invalidity the applicant terminated his service permanently, and, in accordance with case-law cited above, lost his interest in pursuing his action. The applicant takes the view, on the other hand, that that case-law does not apply to the present case for two reasons. First, in this case, there was no permanent termination of service because, according to Article 14 of Annex VIII to the Staff Regulations, he can be reinstated in the service as soon as his state of health allows. Secondly, his retirement was compulsory, occurring after the present action was lodged. He observes that, in those circumstances, his right to judicial protection should prevail over other considerations and allow him to secure a judgment on the lawfulness of the contested CDR. He thus takes the view that he still has a current, personal interest in the annulment of the CDR.
30 Regarding, first, the question of the permanent nature of the termination of service in the event of retirement on the ground of total permanent invalidity, it must be pointed out that, even if Article 14 of Annex VIII to the Staff Regulations provides for the possibility of reinstating an official receiving an invalidity allowance, the fact of total permanent invalidity was intended by the legislature to bring the career of the official in question to an end. Therefore, Article 53 of the Staff Regulations provides that '[a]n official to whom the Invalidity Committee finds that the provisions of Article 78 apply shall automatically be retired on the last day of the month in which the appointing authority recognises his permanent incapacity to perform his duties'. In turn, all types of retirement, including that resulting from total permanent invalidity, are covered by the list of causes of permanent termination of service set out in Article 47 of the Staff Regulations. Invalidity of this kind is therefore regarded by the legislature, as regards whether or not the termination of service which this entails is permanent, in the same way as other causes of termination of service, the permanent nature of which is not in doubt, such as resignation, dismissal for incompetence or removal from post.
31 It follows that, according to the scheme of the Staff Regulations, retirement on the ground of total permanent invalidity within the meaning of Articles 53 and 78 is regarded, in principle, as bringing the official's career to an end. It can therefore be distinguished from sick leave, provided for under Article 59 of the Staff Regulations, which does not affect the continuity of the career of the official who is temporarily unable to carry out his duties.
32 The Court considers, therefore, that in accordance with the case-law referred to above, the applicant's retirement pursuant to Article 78 of the Staff Regulations affects his interest in securing the annulment of the contested CDR inasmuch as his career within his institution was, in principle, permanently interrupted.
33 That conclusion is not undermined by the applicant's argument regarding possible reinstatement in the service under Article 14 of Annex VIII to the Staff Regulations. It must be recalled that an applicant must show a vested and existing interest in the annulment of the contested act, and that if the interest which an applicant claims concerns a future legal situation he must demonstrate that the prejudice to that situation is already certain. However, it is clear that the applicant's reinstatement in the service of the Commission is only a possibility, which, at the present time, may not materialise. Therefore, this is merely a hypothetical interest and thus does not suffice to warrant a finding that the applicant's legal situation is affected by the fact of not annulling the contested CDR. [(15)]
34 As regards, secondly, the fact that the applicant's retirement was compulsory and took place after the present action was lodged, it should be pointed out, first of all, that the Court has already had occasion to rule that an official who has terminated his service on the ground of dismissal for incompetence or removal from his post, which has become permanent following a legal action, does not have a legal interest in the annulment of his staff report. [(16)] It is clear from the case-law that whether or not termination of service is voluntary is irrelevant for the purposes of assessing the existence of a legal interest in bringing proceedings. Secondly, in respect of the time of retirement in relation to the date of lodging the action, it is clear from the case-law referred to in paragraph 27 above that the fact of losing the legal interest in bringing proceedings after an action has been lodged cannot prevent the Court from finding that there is no need to adjudicate on the action. [(17)]
35 In the light of the foregoing, it must be held that the amendment of the CDR sought by the applicant would not, in principle, have any impact on his career from 28 February 2005 onwards, the time when his career came to an end. It is therefore for the applicant to establish the existence of a particular fact demonstrating a current, personal interest in bringing annulment proceedings. (18)
36 It must be pointed out that the applicant, in disputing the permanent nature of his termination of service, does not invoke any particular fact within the meaning of the order in N v Commission. He asserts, however, that his interest in seeking annulment of the contested CDR should be recognised in order to ensure protection of his right to effective judicial protection.
37 In that respect, it suffices to point out that the right to effective judicial protection entails the right to refer to the Court only those acts of the Community institutions which, in so far as they affect the applicant's interests, affect him adversely. [(19)] However, in the present case, it is clear that, because of his retirement, neither the contested decision nor the contested CDR, in so far as he has not been reinstated, affect the applicant adversely at the present time. It follows that, without having, at this stage, to rule on the relevance of the applicant's argument if it were raised in support of a possible action in the event that the applicant were reinstated in the service, it must be observed that the right to effective judicial protection cannot confer on him a right to have the Court rule on the present application for annulment.
38 It follows from all of the above considerations that the applicant has not provided evidence of a vested and present interest in bringing proceedings. There is therefore no need to rule on the claim for annulment of the CDR at issue.
39 In relation to the claims for a declaration by the Court of unlawfulness of the GIP 43 and the Transitional Guide, or of the provisions currently in force, it should be observed that, as the applicant himself states, these claims amount to pleas of unlawfulness raised in the application for annulment. Accordingly, there is no need to make a ruling on this point.'
B The claim for damages
- The Court of First Instance dismissed the action for damages as inadmissible on the following grounds:
'42 It should be recalled that, under Article 21 of the Statute of the Court of Justice, which applies to the Court of First Instance by virtue of the first paragraph of Article 53 of that statute, and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, every application must contain the subject-matter of the dispute, the form of order sought and a brief statement of the pleas in law on which it is based. In order to satisfy those requirements, an application seeking compensation for damage allegedly caused by a Community institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage. However, a claim for an unspecified form of damage is not sufficiently concrete and must therefore be regarded as inadmissible. [(20)]
43 In the present case, the applicant only claims damages in compensation for the damage to his career prospects, to his health and to his well-being, without calculating the amount and without providing sufficiently concrete evidence to allow an assessment of the extent of the damage. His application does not in fact contain any information in this respect other than the fact that '[t]he manifest error of assessment and misuse of powers by the countersigning officer caused severe damage to the applicant's promotion prospects' and that '[t]his has caused the applicant distress and ill health, compounding the damage to his career prospects'.
44 Even if the Court has previously accepted that, in special circumstances, it is not essential to specify the exact extent of the damage in the application and to state the amount of the compensation sought, [(21)] it should be pointed out that, in the present case, the applicant has neither established nor invoked the existence of such circumstances. [(22)]
45 In addition, in relation to the non-material damage, it should be pointed out that quite apart from the complete absence of any quantification of that damage, the applicant has not placed the Court in a position to assess the extent or character thereof. However, where compensation of non-material injury, whether as symbolic reparation or as true compensation, is sought, it is for the applicant to specify the nature of the non-material damage alleged in connection with the conduct of the Commission complained of and to quantify the whole of that damage, even if approximately. [(23)]'
C The applicant's requests for measures of organisation of procedure
- The Court of First Instance inferred from the reasons set out above that the applicant's requests for the production by the Commission of the document containing the minutes of the meetings of the JEC, the two best CDRs and the two worst CDRs of the officials in his unit for the 2001/02 period, together with the document containing the official quantitative standards of the translation units for that period, were devoid of interest for the resolution of the case.
V Appeal
- By document of 6 April 2007, received at the Registry on the same date, the appellant lodged an appeal against the judgment under appeal. The Commission lodged its response on 12 June 2007. The appellant did not request the opportunity to lodge a reply and the parties did not request a hearing.
- The appellant claims that the Court should:
'(i) [set aside the judgment under appeal] and ... make a ruling on the substance of this case...;
(ii) ... confirm the appellant's intrinsic interest in his CDR independent of the administration's interest therein;
(iii) ... recognise that invalidity is by definition reversible, and is so regarded and so treated by the Commission's Medical Service;
(iv) ... accord the appellant the right to judicial protection in respect of his CDR;
(v) ... allow the claim to damages and ... award the appellant EUR 1.5 million in compensation;
(vi) ... make an appropriate award as to costs.'
- The Commission contends that the appeal should be dismissed and that the appellant should be ordered to pay all the costs.
A The interest in bringing proceedings challenging the CDR
- The appellant submits that the judgment under appeal is vitiated by errors of law in so far as the Court of First Instance took the view, first, that the CDR gives the official assessed an interest only if that official still has a career to complete, second, that total permanent invalidity is equivalent to termination of service, and, third, that the right to effective judicial protection does not confer a right of action against the contested decision.
- The Commission contends that the appellant's objections to the judgment under appeal are unfounded. It submits that the Court of First Instance correctly held that the case-law according to which an official no longer has an interest in challenging a staff report once he has completed his career is applicable to a CDR; that it follows from Articles 53 and 78 of the Staff Regulations that total permanent invalidity gives rise to the automatic retirement of the person concerned; and, finally, that the right to effective judicial protection allows a person to challenge only an act which adversely affects him. The Commission further submits, on that last point, that the Court of First Instance did not exclude the possibility that the appellant might have an interest in challenging the contested decision subsequently if he were reinstated, and that the right to effective judicial protection had been respected, since the judgment under appeal was delivered after the appellant was able to state his position during the course of a full procedure.
- The arguments relied on by the parties in this appeal raise two issues therefore. The first is whether the case-law according to which an official no longer has an interest in challenging a staff report, such as a CDR, when he is no longer in the service of the institution which drew up that report is well founded. The second is whether that case-law, assuming it to be well founded, is applicable to an official who is in a position of permanent invalidity, which is considered to be total.
- As regards the first issue, the judgment under appeal relies on the case-law of the Court of First Instance, according to which an official no longer has an interest in challenging a staff report after termination of his service, unless he establishes the existence of a particular fact demonstrating a current, personal interest in obtaining annulment. (24) According to that case-law, an official's mere wish to have a report available that reflects reality, both from a personal perspective and in case it is needed in the search for a new job, does not demonstrate the existence of a legal interest in bringing proceedings. (25)
- I take issue with that case-law and, therefore, with the judgment under appeal in that respect, because it effectively determines the rights of an official in respect of the content of his staff report solely by reference to the usefulness of that report to the institution that drew it up.
- It is common ground that a staff report such as the CDR is an assessment of an official's ability, efficiency and conduct, as stated in Article 43 of the Staff Regulations. It is therefore a value judgment, drawn up at regular intervals, on the manner in which the official assessed performed the tasks conferred upon him.
- It is true that the purpose of such a document is to enable line managers to compare the merits of candidates for possible promotion or transfer, and to take decisions concerning the progress of the career of the official assessed. However, I do not believe that it can be inferred from that function of the staff report that it is capable of adversely affecting an official only if he continues to pursue his career within the institution which drew up the report.
- In so far as it is a value judgment on the manner in which the official has performed his duties, the staff report also affects the personal right of every official to receive a just and equitable appraisal.
- I take the view that that right should be recognised, because, irrespective of his status in society as a human being, a person is defined also by what he achieves or accomplishes. In that respect, work occupies a decisive position in the life of every person. An official is entitled to seek a just and equitable appraisal of his work, because that appraisal constitutes the record and statement of what he has accomplished. That analysis obtains all the more since, in my view, the appraisal of the manner in which a person has performed his duties does not merely describe the tasks performed during the relevant period, but also includes an assessment of the personal qualities shown by the individual assessed in the conduct of his professional life.
- To that extent, a staff report cannot be regarded exclusively from the point of view of the institution as nothing more than a document to be filed away because it ceases to be of interest once the assessed official's service in that institution has come to an end. An official has a personal right, in my opinion, to ensure that the manner in which he has performed his duties is accurately described, because those duties are an important part of his existence and a staff report constitutes the record of that.
- Moreover, an official may legitimately wish to make use of that staff report in the search for future employment. The fact that it is an internal document cannot hinder such use. Since it describes the duties performed by the official assessed and the manner in which he performed them, such a document can constitute a very important element of a curriculum vità... in terms of demonstrating experience acquired and professional qualities. In addition, it is well known that officials of the Communities are subject to periodical appraisals; an official seeking a new job may, therefore, be invited by a prospective employer to produce his staff reports.
- On those two grounds, I take the view that the case-law according to which a staff report such as the CDR affects, in principle, the interest of the person assessed only inasmuch as that person still has a career before him, that is, until termination of his service, is incorrect. That error of law should suffice, in my opinion, to justify setting aside the judgment under appeal in so far as it decided that there was no longer any need to adjudicate.
- With regard to the second issue, I am of the opinion that, even on the assumption that that case-law is well founded, it should not have led the Court of First Instance to hold that an official suffering from total permanent invalidity has no interest, on that ground alone, in bringing proceedings challenging his staff report.
- Even though an official in such a situation is automatically retired, as provided for under Articles 53 and 78 of the Staff Regulations, the situation is reversible, as shown by Articles 13 to 16 of Annex VIII to the Staff Regulations. Those articles expressly provide that the official's activities in the service of his institution are merely suspended and that that suspension is subject to the continuation of the state of invalidity which may be reviewed at regular intervals.
- The situation of an official in a state of total permanent invalidity is thus distinguished from that of an official who has reached the age of retirement or who has resigned or been dismissed, because he may one day resume his duties within the institution.
- It may appear shocking, therefore, for the case-law concerning the absence of a legal interest in challenging a staff report after termination of service with the institution to be applied to such an official, since that stance signifies that the possibility of the official returning to work and, therefore, of recovering his health, does not warrant consideration. In other words, it effectively suggests to that official that he is henceforth removed from the list of employees and that the administration is proceeding on the basis that there is no prospect of his recovery.
- It must be noted in that regard that, in the judgment under appeal, the absence of any interest in bringing proceedings on the appellant's part was inferred solely from the finding of his total permanent invalidity, without taking the analysis further and considering whether, in view of the particular situation of the person concerned, it was possible to envisage his return to work. The judgment under appeal represents a further narrowing of the approach to the concept of the interest in bringing proceedings, by comparison with that adopted in a similar context, for example, in the order in Ross v Commission.
- Thus, in response to Mr Ross's argument challenging the permanent nature of his termination of service as a result of his state of total permanent invalidity, the Court of First Instance found in that order that Mr Ross had not put forward any argument which suggested reinstatement might be possible. It also based its findings on the fact that the invalidity committee had taken the view, having regard to the fixed nature of the illness of the person concerned, that there was no need for a medical re-examination. (26)
- If, in the present case, the Court of First Instance had examined the particular situation of the appellant, as in the order in Ross v Commission, the action could have been declared admissible because the appellant was born on 4 February 1955 and it is apparent from the evidence in the case-file that the invalidity committee took the view, in its decision of 7 February 2005, that his situation should be reviewed after two years. That committee decided, in 2007, to renew the appellant's invalidity status for only one year.
- In addition, the hypothetical nature of the return to work does not, in itself, constitute an insurmountable legal obstacle to the recognition of a vested and present interest in bringing proceedings.
- By way of evidence, I refer to the case-law concerning actions brought against decisions setting the future pension rights of officials of the institutions. According to that case-law, an official is entitled to challenge such a decision even though his retirement and, therefore, the receipt of those pension payments, constitutes an uncertain and hypothetical event at the time when the action is brought. (27)
- The Court has held that, in a case of that kind, an official is entitled to bring an action against a decision which affects his future financial situation, as he has a legitimate, present, vested interest in having an uncertain factor in his administrative situation decided forthwith by the Court. (28) According to the Court, the inadmissibility of such an action would not enable the official in question to ascertain his rights until the time of his retirement, and would leave him until then in a state of uncertainty regarding his financial situation, making him unable immediately to make the appropriate personal arrangements for his future. (29)
- That case-law can be applied to the present case. It may be accepted that an official in a state of total permanent invalidity has a vested and present interest in having the report which can determine the future progress of his career reviewed by the Community judicature so as to enable him to decide, if appropriate, to change course.
- The application of that case-law to the present case appears to me to be justified also in light of the fact that, conversely, an official in the appellant's situation of total permanent invalidity would be precluded from challenging his staff report under satisfactory conditions.
- Admittedly, as the Commission stated in reply to the written question of the Court of First Instance, the appellant's reinstatement could be interpreted as a 'new substantial fact' within the meaning of the case-law according to which, where such a fact arises, an official is entitled to request the administration to review an act which has become final. (30) Thus, if he were to be reinstated at the Commission, the appellant could, according to that case-law, request the administration to review the contested staff report and, if necessary, challenge the rejection of that request before the Community judicature.
- However, the review of the substance of that staff report which could ensue in that action, possibly several years later, certainly would not provide the same safeguards as if the appellant were allowed to challenge that report as soon as it was notified to him. There is a certain risk that if the Community judicature had to rule on a staff report several years after it was drawn up, the evidence which could prove necessary to resolve the dispute might no longer be available. (31)
- In the light of all these considerations, it is my view that, in concluding that the appellant no longer had a legal interest in bringing proceedings challenging the contested decision solely on the ground that he was in a state of permanent invalidity, which was considered to be total, the Court of First Instance also committed an error of law that would justify setting aside the judgment under appeal.
B The claim for damages
- The appellant complains that the Court of First Instance dismissed his claim for damages on the ground that the nature and extent of the damage were not specified, whereas that claim and the substance of the case constituted two separate issues.
- That separation is necessary, according to the appellant, because, since making his complaint against the CDR in July 2003, his situation has been constantly changing. Thus, in July 2003, the promotion committee for that year had not yet met; as a result, the appellant did not know whether he was going to be promoted or not. Similarly, when he brought his action in July 2004, he had not yet been found to be in a state of invalidity. Finally, when his appeal was being drawn up, he did not know whether and when he could be reinstated in his post.
- According to the appellant, it follows from this that, because of the special circumstances of the case, the Court of First Instance should not have examined the claim for damages until after its substantive ruling; pending such a ruling, therefore, the judgment under appeal should be set aside in so far as it rejects the damages claim.
- The appellant also states that, if the Court were to declare his appeal admissible and if it should find, in its examination of the substance of the case, that he has been the victim of a grievous injustice both as regards the content of his CDR and the conduct of the procedure and that his career has been irreparably damaged, he would be entitled to a sum of EUR 1.5 million.
- The Commission maintains that the appellant does not state in what respect the grounds on which the Court of First Instance dismissed his claim as inadmissible are incorrect. It concludes from this that, in that respect, the appeal is inadmissible or manifestly unfounded.
- I share the view taken by the Commission. As regards the claim for damages, the appellant's objections to the judgment under appeal are not capable of demonstrating that the Court of First Instance erred in law or misinterpreted the claim.
- The Court of First Instance correctly cited the rule under which a claim for compensation for damage that is imputed to a Community institution must describe the harmful event, the damage caused to the applicant by that event, and the causal link between that event and the damage invoked. It rightly held that the appellant had not complied with that requirement, because he had confined himself in his application to stating that '[t]he manifest error of assessment and misuse of powers by the countersigning officer caused severe damage to the applicant's promotion prospects' and that '[t]his has caused the applicant distress and ill health, compounding the damage to his career prospects'.
- The Court of First Instance also noted that the appellant did not provide any explanation as to why he was unable to describe the precise extent of his damage or to quantify it.
- As the Commission submits, the explanations in that regard which the appellant has provided in the context of the present appeal constitute new evidence which is not capable of demonstrating that the judgment under appeal is vitiated by an error of law. In so far as the appellant's appeal challenges the dismissal in the judgment under appeal of his claim for damages, his appeal is, therefore, in my opinion, manifestly unfounded.
- Furthermore, in the event that the Court does examine the merits of the dispute, the claim for EUR 1.5 million in compensation constitutes an application for a different form of order for the purposes of Article 113 of the Rules of Procedure of the Court, which must be declared inadmissible.
C The consequences of setting aside the judgment under appeal
- I propose that the Court should rule on the application for annulment of the contested decision, in accordance with Article 61 of the Statute of the Court of Justice under which, if the appeal is well founded, the Court may itself give final judgment in the matter, where the state of the proceedings so permits.
- The appellant seeks the annulment of the contested decision rejecting his complaint against the decision of 28 April 2003 confirming his CDR for the period from 1 July 2001 to 31 December 2002.
- In support of that action, the appellant relies on three pleas in law, the first of which alleges a breach of essential procedural requirements and of the rights of the defence.
- In relation to that plea in law, the appellant submits that the internal appeal procedure in respect of his CDR provided for by GIP 43 is vitiated by a number of irregularities. He maintains, in particular, that the second stage of that procedure, consisting of a review by the JEC of the formal and substantive requirements of the CDR, was not complied with.
- The appellant thus argues that the examination by the JEC was limited to the procedural aspect and did not relate to the substance. He states that the JEC found that the formal dialogue with the countersigning officer for the CDR had not taken place and therefore recommended that that dialogue be held. He maintains that his dossier was not then referred back to the JEC so that the JEC too could determine whether the CDR had been produced fairly, objectively and in accordance with normal reporting standards.
- The appellant submits that that omission constitutes a serious irregularity which vitiates the internal appeal procedure. On account of its composition, the JEC is the only appeal body in which members of staff performing the same duties as the appellant could have examined his report. Moreover, the opinion of the JEC has great weight, inasmuch as the appeal assessor is required to justify his decision if he departs from that opinion.
- The Commission contends that the appellant cannot derive any argument from the fact that the JEC merely found that the formal dialogue with the countersigning officer for the CDR had not taken place, since the appellant himself failed to inform the JEC that that dialogue had taken place on 25 March 2003.
- In my view the appellant's argument is well founded and the contested decision does infringe an essential procedural requirement. My analysis is based on the provisions of GIP 43 which lay down the internal appeal procedure in respect of a CDR.
- According to those provisions, the CDR of an official such as the appellant is produced by his Head of Unit, who is designated as reporting officer, and by his Director, as countersigning officer. That CDR is sent to the official being assessed, who has five working days to accept the content of it and to sign it or contest it. If the official being assessed is dissatisfied with his CDR, he informs the reporting officer accordingly and indicates his wish to have a meeting with the countersigning officer. The countersigning officer has to arrange that dialogue within five working days.
- Under Article 7(5) of GIP 43, at the end of that dialogue, the countersigning officer amends or confirms the CDR and then sends it to the official being assessed. If that official is dissatisfied with the countersigning officer's decision, he may ask him to refer the matter to the JEC.
- The JEC is made up of a chairperson, who is a Director, and four other members, two of whom are staff representatives appointed by the central staff committee. Article 8(5) of GIP 43 defines the JEC's role in the following terms:
'Although the Committee may not take the place of the reporting officers in evaluating the work of the jobholder, it shall verify that the report has been produced fairly, objectively and in accordance with normal reporting standards. It shall also verify that procedures have been correctly followed (dialogue(s), time-limits, etc.) ...'
- The JEC must therefore give its opinion on those points within 10 working days of the date on which the CDR was submitted to it. The effects of that opinion are set out in Article 8(7) of GIP 43 in the following terms:
'The opinion of the Evaluation Committee, notified to the jobholder and to the reporting and countersigning officer, is transmitted to the appeal assessor. Within three working days ..., the latter will either confirm the report or amend it, and refer it to the jobholder. Where the appeal assessor departs from the recommendations contained in the [JEC]'s opinion, he shall justify the reasons for his decision. ...'
- Two lessons can therefore be drawn from those provisions, which are relevant to the solution of the present dispute. The opinion of the JEC must cover not only compliance with the procedural rules, but also the objectivity and fairness of the staff report. Moreover, that opinion is relatively important, because the appeal assessor has to justify his view if it is contrary to that opinion.
- However, in the present case, it is common ground that the JEC did not rule on the content of the contested staff report. In its opinion transmitted to the appeal assessor on 11 April 2003, the JEC found that the formal dialogue with the countersigning officer, which is provided for in Article 7 of GIP 43 in the event of the assessed official's disagreement with the content of his CDR, had not taken place.
- The fact that, having made that finding, the JEC did not examine the content of the staff report appears to me to be logical, since it could legitimately assume that that dialogue would, in fact, be arranged and that the procedure would thereby be put in order and since, moreover, the countersigning officer had the opportunity to amend the disputed CDR following that dialogue. In other words, as far as the JEC was concerned, in the absence of a formal dialogue with the countersigning officer, the content of the CDR was not final.
- Therefore, in his decision of 28 April 2003, the appeal assessor could not, in my opinion, determine the appellant's internal appeal before the JEC had itself given its opinion on the content of the contested CDR.
- The appeal assessor disregarded that situation in his decision, stating that the formal dialogue with the countersigning officer had taken place on 25 March 2003 and on 14 April 2003, thus 'before and after the meeting of the JEC on 7 April 2003'. However, that finding should not have permitted the appeal assessor to make a determination. If he found that, contrary to what the JEC had stated in its opinion, the formal dialogue had taken place on 25 March 2003, then he had to invite the JEC to make a substantive determination; if, on the other hand, he took the view that the formal dialogue had taken place on 14 April 2003, following the JEC's recommendation, then he also had to seek the JEC's opinion on the content of the staff report that was confirmed by the countersigning officer following that meeting.
- In ruling as he did in his decision of 28 April 2003, the appeal assessor treated the appellant's right of appeal to the JEC as a mere formality. However, as the appellant submits, that right of appeal is important because the JEC is the only body involved in the reporting process which includes staff representatives and, moreover, its opinions have to be taken into consideration by the appeal assessor.
- Those factors demonstrate, in my view, that that breach of procedure could genuinely prejudice the rights of the appellant.
- The Commission contends that the appellant cannot rely on that irregularity because he himself was the source of it, since he omitted to inform the JEC that a formal dialogue was held with the countersigning officer on 25 March 2003.
- That argument cannot be upheld, it seems to me, for the following reasons. In the first place, according to Article 7(5) of GIP 43, following a formal dialogue, the staff report in question is retransmitted to the official concerned, after being confirmed or amended. The fact that that formal dialogue was held should therefore be demonstrated by the retransmission of the contested staff report. In addition, as provided for under Article 7(6) of GIP 43, the matter is referred to the JEC following a request to the countersigning officer by the official assessed.
- It is difficult to imagine, therefore, that the JEC's assessment in the present case that the formal dialogue with the appellant had not taken place could have been induced merely by the appellant's statements in his request initiating his appeal to the JEC.
- In the second place, the fact that a formal dialogue was arranged on 14 April 2003, that is to say, after the JEC's opinion recommending that that dialogue be held, contradicts the stance taken by the Commission.
- In the light of these considerations, it is my view that the contested decision is vitiated by a breach of a procedural rule which adversely affected the appellant's interests, and that that decision should be annulled.
D Costs
- Since, if the Court were to follow my recommendation, the appellant's application for annulment of the contested decision would be held to be admissible and well founded, and those two points constitute the principal elements of these proceedings, I propose that it should be ruled that the Commission is to bear all the costs, in accordance with Article 122 of the Rules of Procedure.
VI Conclusion
- In the light of the foregoing considerations, I propose that the Court should:
set aside the judgment of the Court of First Instance of the European Communities of 7 February 2007 in Case T-175/04 Gordon v Commission in so far as it declares that there is no longer any need to rule on the application for annulment;
dismiss as manifestly unfounded the appeal against that judgment in so far as the judgment dismisses the action for damages as inadmissible;
annul the Commission's decision of 11 December 2003 rejecting the complaint against the decision of 28 April 2003 confirming the appellant's career development report for the period from 1 July 2001 to 31 December 2002; and
order the Commission of the European Communities to pay all the costs.
1 Original language: French.
2 Case T-175/04 [2007] ECR II-0000; 'the judgment under appeal'.
3 '[T]he Staff Regulations'.
4 'GIP 43'.
5 'CDR'.
6 '[T]he Transitional Guide'.
7 '[T]he appointing authority'.
8 '[T]he JEC'.
9 '[T]he contested decision'.
10 Case 14/63 Forges de Clabecq v High Authority [1963] ECR 357, and order in Case T-97/94 N v Commission [1998] ECR'SC I'Č621 and II'1879, paragraph 23.
11 Case T-159/98 Torre and Others v Commission [2001] ECR'SC I'Č83 and II'395, paragraph 30; Case T-105/03 Dionyssopoulou v Council [2005] ECR'SC I'Č137 and II'621, paragraph 18; and Case T-274/04 Rounis v Commission [2005] ECR'SC I'Č407 and II'1849, paragraphs 21 and 22.
12 Case T-138/89 NBV and NVB v Commission [1992] ECR II-2181, paragraph 33; Case T-141/03 Sniace v Commission [2005] ECR II-1197, paragraph 26; and order in Case T-28/02 First Data and Others v Commission [2005] ECR II-4119, paragraphs 42 and 43.
13 See, to that effect, Joined Cases 6/79 and 97/79 Grassi v Council [1980] ECR 2141, paragraph 20, and Case T-59/96 Burban v Parliament [1997] ECR'SC I'Č109 and II'331, paragraph 73.
14 See, to that effect, the order in N v Commission, paragraph 26, and Dionyssopoulou v Council, paragraph 20.
15 See, to that effect, Case 204/85 Stroghili v Court of Auditors [1987] ECR 389, paragraph 11.
16 Order in N v Commission, paragraph 27, Joined Cases T-200/03 and T-313/03 V v Commission [2006] ECR'SC I'Č2'15 and II'Č2'57, paragraph 184.
17 Case T-20/89 Moritz v Commission [1990] ECR II-769, paragraph 16; Dionyssopoulou v Council, paragraph 18; and Rounis v Commission, paragraph 21.
18 Order in N v Commission, paragraphs 26 and 27.
19 See, to that effect, the order of the Court of Justice of 1 October 2004 in Case C-379/03 P Pérez Escolar v Commission, paragraphs 41 and 42, and the order in Case T-276/02 Forum 187 v Commission [2003] ECR II-2075, paragraph 50.
20 Case 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 975, paragraph 9; order in Case T-505/93 Osório v Commission [1994] ECR'SC I'Č179 and II'581, paragraph 33; and order in Case T-112/94 Moat v Commission [1995] ECR'SC I'Č37 and II'135, paragraph 32.
21 Case T-64/89 Automec v Commission [1990] ECR II-367, paragraphs 75 to 77, and Case T-37/89 Hanning v Parliament [1990] ECR II-463, paragraph 82.
22 See, to that effect, the orders in Osório v Commission, paragraph 35, and in Moat v Commission, paragraph 37.
23 Order in Moat v Commission, paragraph 38, and Case T-157/96 Affatato v Commission [1998] ECR'SC I'Č41 and II'97, paragraph 38.
24 Orders in N v Commission, paragraph 26, and in Case T-147/04 Ross v Commission [2005] ECR'SC I'Č171 and II'771, paragraph 27.
25 Orders in N v Commission, paragraph 30, and in Ross v Commission, paragraphs 29 and 30.
26 Order in Ross v Commission, paragraphs 31 and 32.
27 Case 17/78 Deshormes v Commission [1979] ECR 189, paragraphs 10 to 12, and Case 167/86 Rousseau v Court of Auditors [1988] ECR 2705, paragraph 7.
28 Ibid.
29 Deshormes v Commission, paragraph 11.
30 Case 127/84 Esly v Commission [1985] ECR 1437, paragraphs 10 and 12, and order in Case T-202/97 Koopman v Commission [1998] ECR'SC I'Č163 and II'511, paragraph 23.
31 Thus, in the present case, the Court of First Instance asked the Commission to provide the official documents indicating the number of officials in Grade LA 5 in unit EN.3 during the assessment period and the results of the assessment of the officials in the appellant's unit listed under headings.
