DE v EMA (Judgment) [2014] EUECJ F-103/13 (11 December 2014)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

(Civil service — Member of the temporary staff of EMA — Evaluation report — Application for annulment — Obligation to state reasons — Manifest error of assessment — Infringement of procedural rules — None)

DE, a member of the temporary staff of the European Medicines Agency, residing in Buckhurst Hill (United Kingdom), represented by S. Rodrigues and A. Blot, lawyers,

European Medicines Agency (EMA), represented by S. Marino, T. Jabłoński and N. Rampal Olmedo, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,

composed of R. Barents, acting as President, K. Bradley (Rapporteur) and J. Svenningsen, Judges,

having regard to the written procedure and further to the hearing on 2 July 2014,

1 By application received at the Tribunal Registry on 14 October 2013, DE brought the present action seeking, essentially, the annulment of his performance evaluation report in respect of the period from 15 September 2010 to 15 September 2012 (‘the 2010/2012 evaluation report’).

2 The present case arises in the legal context, first, of Article 43 of the Staff Regulations of Officials of the European Union, in the version applicable to the present dispute (‘the Staff Regulations’) concerning the periodical report on the ability, efficiency and conduct in the service of each official; secondly, of Article 15(2) of the Conditions of Employment of Other Servants of the European Union, in the version applicable to the present dispute, according to which the provisions of Article 43 of the Staff Regulations, concerning reports, apply by analogy to other servants; thirdly, of the Guide to Performance Evaluation Reports (‘the Guide’), adopted on 8 June 2010 by the European Medicines Agency (EMA or ‘the Agency’) pursuant to the abovementioned provisions.

3 The applicant was recruited on 1 January 1999 as an Administrator within the Agency on the basis of Article 2(a) of the Conditions of Employment of Other Servants of the European Union, in the version then applicable, and carried out his duties there continuously until 31 January 2014, when he was relieved of his duties, until the expiry of his employment contract with the Agency on 15 March 2014.

4 At the time of bringing the action, the applicant was classified at grade AD 11 and occupied the position of Principal Scientific Administrator in signal detection in the pharmacovigilance and risk management sector. It is apparent from the 2010/2012 evaluation report that the applicant was responsible, inter alia, for monitoring several projects coordinated by a European consortium in the context of pharmaco-epidemiological research into the results of therapeutic treatments (‘the Protect project’) and for coordinating the preparation and updating of a standard operating procedure.

5 The procedure to draw up the 2010/2012 evaluation report began on 15 August 2012 with a meeting between the applicant and his reporting officer, Mr A.

6 By e-mail of 20 August 2012, the reporting officer forwarded to the applicant a first draft of the 2010/2012 evaluation report and asked him to indicate his agreement or disagreement by 28 August 2012.

7 By e-mail of 28 August 2012, the applicant informed the reporting officer that he did not agree with the analytical assessment set out in the 2010/2012 evaluation report.

8 After a second interview with the reporting officer and having received a new draft 2010/2012 evaluation report on 14 September 2012, the applicant applied to the assessor to challenge that draft report drawn up by the reporting officer.

9 The assessor met the applicant on two occasions, on 28 September and 8 October 2012. By e-mail of 16 November 2012, the assessor sent a new version of the draft 2010/2012 evaluation report to the applicant.

10 By e-mail of 23 November 2012, the applicant wrote to the assessor, stating that, although the 2010/2012 evaluation report had been greatly improved, certain aspects and certain data had not been taken into account and that, in particular, there was a discrepancy between the comments and the analytical assessments and that the less favourable assessments in comparison with the evaluation report drawn up for the period between 15 September 2008 and 15 September 2010 (‘the 2008/2010 evaluation report’) were not justified. The applicant therefore made several comments on the draft 2010/2012 evaluation report.

11 By e-mail of 2 December 2012, the assessor informed the applicant that he had only partially accepted his comments and that the 2010/2012 evaluation report had to be regarded as final from the perspective of the reporting officer and assessor.

12 By e-mail of 7 December 2012, the applicant informed the assessor of his disagreement with the final version of the 2010/2012 evaluation report and stated that he intended to lodge a complaint under Article 90(2) of the Staff Regulations.

13 On 11 December 2012, a new version of the draft 2010/2012 evaluation report was drawn up. In that version, the reporting officer made several comments, including one indicating that the person who had been the applicant’s reporting officer in respect of the period between 15 September 2010 and 30 June 2011, Ms C, had been consulted and that her observations had been taken into account in the preparation of that evaluation report.

14 By memorandum of 17 December 2012, the head of the Human Resources unit, Ms D, informed the applicant that the draft 2010/2012 evaluation report of 11 December 2012 would be regarded as final after 15 January 2013, even in the absence of signature by the applicant.

15 By note of 30 January 2013, Ms D informed the applicant that the 2010/2012 evaluation report, in the version drawn up on 11 December 2012, was to be considered final as of 16 January 2013 (‘the contested evaluation report’).

16 On 6 March 2013, the applicant submitted a complaint against the contested evaluation report on the basis of Article 90(2) of the Staff Regulations.

17 By decision of 2 July 2013, the deputy executive director of the Agency, acting as authority empowered to conclude contracts of employment (‘the AECE’), rejected the applicant’s complaint, but granted the request, set out in the complaint, that the contested evaluation report also be signed by Ms C (‘the decision on the complaint’).

18 By note of 4 September 2013, Mr E, the former head of the unit to which the applicant was assigned and his assessor until 1 August 2013, recommended to the executive director of the Agency that the applicant’s employment contract should not be renewed upon its expiry on 15 March 2014. According to Mr E, the applicant had not obtained the results that could reasonably be expected of him, given his length of service and the level of responsibility attached to his post. Furthermore, Mr E considered that the applicant’s two last evaluation reports had identified certain weaknesses in his work.

19 By letter of 8 September 2013 to the executive director of the Agency, the applicant contested Mr E’s recommendation.

20 By letter of 12 September 2013, the executive director of the Agency informed the applicant that his employment contract would not be renewed upon its expiry. During the hearing, the applicant informed the Tribunal that he had brought an action against the decision not to renew his contract. That action, lodged at the Registry of the Tribunal on 23 June 2014, was registered as Case F‑58/14.

23 The Tribunal notes that the applicant’s contract of employment ended after the present action was brought.

24 When questioned at the hearing as to the applicant’s continuing legal interest in bringing proceedings after the end of his employment, the Agency stated that he had known since 4 September 2013, well before bringing the present action, that the AECE did not intend to renew his contract. Since that circumstance distinguishes the applicant’s situation from that of the applicant in the case which gave rise to the judgment in Ntouvas v ECDC (F‑107/11, EU:F:2012:182, on appeal before the General Court of the European Union in Case T‑94/13 P), the Agency asked the Tribunal to find that the applicant had lost his interest in bringing proceedings.

25 In the present case, the Tribunal notes that, in order for an applicant to be able to pursue an action for annulment of a decision of the administration, he must have a personal, vested and current interest in the annulment of that decision even after his action has been brought (order in Marcuccio v Commission, T‑46/08 P, EU:T:2009:362, paragraph 50 and the case-law cited, and judgment in Solberg v OEDT, F‑148/12, EU:F:2013:154, paragraph 16).

26 With regard to the applicant’s interest in seeking the annulment of the contested evaluation report, it is, according to the case-law, necessary to assess whether the applicant has established the existence of such a special circumstance proving a current, personal interest in obtaining the annulment, even after definitive termination of his service (order in N v Commission, T‑97/94, EU:T:1998:270, paragraph 26, and judgment in Dionyssopoulou v Council, T‑105/03, EU:T:2005:189, paragraph 20).

27 The applicant stated in his application that the Agency had decided not to renew his contract on the basis, inter alia, of the contested evaluation report and that he had brought an action against that decision before the Tribunal.

28 In such circumstances, it must be held that the fact that the applicant’s employment contract ended on 15 March 2014 does not, in itself, deprive the contested evaluation report of any purpose and therefore does not cause the applicant to lose his interest in taking proceedings to contest that report.

29 According to established case-law, claims for annulment formally brought against a decision to reject a complaint have, where that decision lacks any independent content, the effect of bringing before the Tribunal the act against which the complaint was submitted (judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8).

30 In the present case, the decision on the complaint confirms the contested evaluation report by giving details of the reasons supporting that report. In such circumstances, it is indeed the legality of the initial act adversely affecting the official or staff member which must be examined, taking into account the reasons given for the decision rejecting the complaint, those reasons being deemed to coincide with that act (judgment in Buxton v Parliament, F‑50/11, EU:F:2012:51, paragraph 21 and the case-law cited). Consequently, the claim seeking annulment of the decision on the complaint lacks any independent content and, consequently, must be regarded as being formally directed against the contested evaluation report, as specified in the decision on the complaint (judgment in Scheefer v Parliament, F‑41/12, EU:F:2013:31, paragraph 20).

31 In his application, the applicant raises three pleas in support of the claim for annulment.

32 The first plea alleges an infringement of the obligation to state reasons and an infringement of his rights of defence.

33 The second plea alleges a manifest error of assessment, infringement of the principles of evaluation contained in the Guide, and infringement of the principle of good administration and of due care. However, at the hearing, the applicant withdrew the complaints alleging infringement of the principle of good administration and of due care. Moreover, the arguments which the applicant puts forward in support of the complaint alleging breach of the principles of evaluation contained in the Guide overlap with the complaint alleging a manifest error of assessment, so that those two complaints will be considered together when analysing whether there might have been a manifest error of assessment.

34 The third plea alleges irregularities in the procedure by which the contested evaluation report was adopted.

The first plea, alleging infringement of the obligation to state reasons and of the rights of defence

35 The applicant alleges that the reasons set out in the contested evaluation report do not provide him with any explanation for the disimprovement in some of the assessments obtained in comparison with those contained in the 2008/2010 evaluation report, whereas the decline in his evaluation is significant enough to warrant specific reasons. The lack of reasons concerning the reduction in his assessments prevented him from submitting his comments, in breach of the right to be heard.

36 Furthermore, the applicant considers that the decision on the complaint merely notes the absence of overall improvement in his performance during the 2010/2012 period, without addressing the real question as to why his assessment was less favourable than in previous years.

37 Finally, the applicant states that, in the decision on the complaint, the Agency erroneously refers to the ‘performance indicators’ appearing in the 2008/2010 evaluation report as ‘areas for improvement’.

38 The Tribunal notes at the outset that, according to settled case-law, the administration is under an obligation to state the reasons for every staff report in sufficient detail to put the person concerned in a position to comment on those reasons; compliance with those requirements is all the more important where the appraisal is less favourable than the previous appraisal (judgments in Ferrer de Moncada v Commission, T‑16/03, EU:T:2004:283, paragraph 53, and Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 58 and the case-law cited).

39 In the present case, it is to be noted that the applicant’s appraisal, between the 2008/2010 evaluation report and the contested evaluation report, has indeed become less favourable. Of the four possible assessments, namely ‘excellent’, ‘very good’, ‘satisfactory’ and ‘unsatisfactory’, the 2008/2010 evaluation report contained two assessments as ‘excellent’, five assessments as ‘very good’ and three assessments as ‘satisfactory’, whereas the contested evaluation report contains a single assessment as ‘excellent’, two assessments as ‘very good’ and seven assessments as ‘satisfactory’. It is therefore necessary to examine whether the reasons provided to the applicant, in respect of this less favourable appraisal, are sufficient in the light of the case-law cited in the previous paragraph of the present judgment.

40 In that regard, the Tribunal notes that, under the heading ‘Areas for improvement’, the contested evaluation report contains a detailed explanation of the weaknesses observed in the applicant’s performance.

41 First, as is apparent from the contested evaluation report, the applicant did not achieve the agreed objectives, set out in the 2008/2010 evaluation report, to serve as a basis for assessing his performance during the reference period of the contested evaluation report. It is contended that the applicant did not, contrary to what had been agreed, produce a study that he should have provided to his line manager in October 2011. In that regard, the contested evaluation report recommends that in future the applicant should discuss any changes to agreed objectives with his line management.

42 Second, the contested evaluation report states that the applicant needs to improve his organisational abilities and to allocate his time and effort more effectively between various projects. Also according to the contested evaluation report, the applicant would benefit from more effective project planning by clearly identifying intermediate stages (‘milestones’) and drawing up a timetable for deliverables. By way of example, the contested evaluation report mentions the Standard Operating Procedure SOP/H/3392 project, concerning the management of urgent signals (‘the standard operating procedure’ or ‘the standard operating procedure at issue’), initiated by the applicant in March 2011 and which was not yet finalised when the first draft of the 2010/2012 evaluation report was adopted. Furthermore, the contested evaluation report refers to a project for which the applicant did not identify the milestones, thereby creating uncertainty in the planning of work.

43 Third, the contested evaluation report states that the applicant must make an effort to consider his work in the wider context of the overall strategy of the sector and of the Agency and states in that regard that his experience in pharmacovigilance could have been very helpful if he had contributed to the implementation of the new legislation concerning that sector. Moreover, the contested evaluation report states that Ms C had asked the applicant to contribute to that task, even though it had not been specifically assigned to him.

44 Fourth, according to the contested evaluation report, the applicant needs to develop acceptance of different points of view and respect his role as a team member. Furthermore, he needs to accept more easily the need for peer review of his written reports and documents. In that regard, the contested evaluation report refers to situations in which the applicant allegedly took initiatives without consulting his working group even though such consultation would have been necessary.

45 Fifth, the contested evaluation report also states that the applicant had been requested to fully comply with the standard operating procedures and work instructions and refers, by way of example, to an instance of non-compliance with procedures.

46 Sixth, it should be noted that, in the 2008/2010 evaluation report, the AECE had already asked the applicant to improve his organisational skills and, in essence, to follow the internal procedures of the Agency and to consider his role in the more general context of the Agency. Moreover, in the contested evaluation report, the applicant is criticised for not having achieved that objective.

47 Finally, in both the contested evaluation report and the 2008/2010 evaluation report, the AECE states that the Agency could benefit from the applicant’s excellent knowledge and wide experience if he made an effort to improve his weak points.

48 In view of the explanations provided in the contested evaluation report, which must be read in the light of the assessments contained in the 2008/2010 evaluation report, it must be held that the contested evaluation report provides useful and sufficient information to enable the applicant to understand the reasons why his appraisal is less favourable than in the 2008/2010 evaluation report.

49 Furthermore, the reasons for the less favourable assessments of the applicant in the contested evaluation report, in themselves already sufficient, are developed in the decision on the complaint, in which the AECE clearly indicates to the applicant that certain areas for improvement, specified in the contested evaluation report, had already been referred to in the 2008/2010 evaluation report.

50 The Tribunal notes in particular that the decision on the complaint points out, among the elements appearing under the heading ‘Performance measures’ of the 2008/2010 evaluation report, the ‘[f]ull compliance with [work instructions] and guidelines and established section practices’. Furthermore, the 2008/2010 evaluation report contained a comment from Ms B according to which the applicant had to ‘[see] his work in the wider context of the EMS’s role, the [European Union] regulatory network, and the evolution of roles with the introduction of new legislation and new responsibilities [of the Agency]’ and ‘[respect the fact] that others … may have different perspectives and priorities’. The abovementioned elements are also described as ‘[a]reas for improvement’ in the contested evaluation report. It was therefore sufficient for the applicant to take into consideration the ‘[p]erformance measures’ set out in the 2008/2010 evaluation report, together with the ‘[a]reas for improvement’ in the contested evaluation report, to have a clear understanding of the reasons for the less favourable assessments.

51 It must therefore be held that the contested evaluation report provides the applicant with sufficient information to understand why his assessments were less favourable than those attributed to him in the 2008/2010 evaluation report.

52 Accordingly, the head of claim alleging that the applicant’s right to be heard was infringed must also be rejected; as the applicant explained during the hearing, he raised that head of claim as a logical consequence of the alleged insufficient reasoning of the contested evaluation report.

53 It follows from all the foregoing that the first plea must be rejected as unfounded.

54 The second plea has three parts. The first part alleges errors of fact and deliberate omissions; the second, a manifest discrepancy between the comments contained in the contested evaluation report and the results of the evaluation; and, third, the failure of the contested evaluation report to reflect the positive results that the applicant maintains he has achieved.

55 Since the applicant bases this plea on the existence of manifest errors of assessment, on unfounded assessments and on discrepancies, which would themselves be the source of such errors, it is appropriate to recall the conditions under which the Tribunal may, particularly in the field of assessment of the merits of staff members, find that a staff report, to which the contested evaluation report must be equated, is vitiated by such defects.

56 In that regard, the Tribunal notes at the outset that staff reports contain assessments which can give rise to judicial review only in order to ensure that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers by persons who are called upon to draw up those documents (judgment in CW v Parliament, F‑48/13, EU:F:2014:186, paragraph 70). In other words, the reporting officers have the widest discretion when judging the work of people whom they are responsible for assessing and it is not for the Court to review the merits of that assessment, containing complex value judgments which, by their nature, are not susceptible of objective verification, except in the event of manifest error (judgments in Micha v Commission, T‑50/04, EU:T:2005:375 paragraph 53, and Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 41).

57 Moreover, an error is manifest only where it can be readily detected, in the light of the criteria to which the legislature intended the exercise of a decision-making power to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the challenged assessment may be accepted as being still true or valid (judgment in AJ v Commission, F‑80/10, EU:F:2011:172, paragraphs 34 and 35).

58 As regards more particularly the judicial review of assessments in staff reports, it should be added that there is all the more reason to restrict the Court’s review to manifest error since the Tribunal is not directly familiar with the situation of the officials or staff members appraised, whereas the appraisal procedure includes administrative safeguards, such as those set out, with regard to EMA staff members, in sections D and F of the Guide, involving, in the procedure for drawing up the evaluation report, the staff member who is appraised and providing for an appeal procedure (see, to that effect, AJ v Commission, EU:F:2011:172, paragraph 37).

59 It is in light of the foregoing general assessments that it is now necessary to consider the various arguments advanced by the applicant in support of the complaint alleging manifest errors of assessment.

60 The applicant considers that the contested evaluation report contains errors of fact and several omissions which affect him adversely.

61 In the first place, he refutes the comment contained in the contested evaluation report according to which ‘despite several reminders, the [standard operating procedure at issue had not yet been] finalised at the time of the initial report (15 [August] 2012)’, as well as the assertion in the decision on the complaint that no action was taken on that standard operating procedure between April 2011 and July 2012.

62 He points out, first, that the contested report was supposed to cover a two-year period ending on 15 September 2012 and criticises the Agency for not having taken into consideration all the relevant facts concerning that period.

63 In particular, the standard operating procedure could not be finalised before the adoption of Commission Implementing Regulation (EU) No 520/2012 of 19 June 2012 on the performance of pharmacovigilance activities provided for in Regulation (EC) No 726/2004 of the European Parliament and of the Council and Directive 2001/83/EC of the European Parliament and of the Council (OJ 2012 L 159, p. 5), the text of which had only been circulated in the applicant’s unit on 18 July 2012. Furthermore, the applicant claims that, on 24 May 2012, he had agreed with his reporting officer that he would submit the final draft of the standard operating procedure before the end of June 2012, which he did on 27 June 2012. However, after the distribution of the draft, the applicant realised that some changes would be required, notwithstanding the Guideline on Good Pharmacovigilance Practices, which raised issues and contained contradictions that his reporting officer refused to discuss with him and clarify. Furthermore, the applicant indicated in his application, giving further details during the hearing, that, on 13 September 2012, Mr A, in consultation with the integrated quality management and risk management coordinator for the Patient Health Protection Unit, had decided that the standard operating procedure was redundant and that it had to be merged with another standard operating procedure. Moreover, the applicant observes that it is apparent from the Agency’s electronic document management system that a flow chart, which is an integral part of the standard operating procedure at issue, was saved at his initiative in March 2012 and that, despite several requests made by him, no discussion at the level of the signal detection group took place between September 2011 and June 2012. Finally, the applicant claims that he extensively modified the standard operating procedure between 25 June and 23 August 2012.

64 Second, the applicant criticises the assertion in the contested evaluation report that, as regards the Protect project, ‘timelines for delivery of major milestones have not been provided by [the applicant], despite multiple requests and have led to uncertainty in planning and setting expectations with his manager’.

65 According to the applicant, the contested evaluation report does not take into account improvements he had contributed, although he had made several requests for them to be included in the report. Furthermore, he states that he concluded the project despite several difficulties, such as the lack of technical support he had been promised and the very long external peer review period.

66 The applicant then claims that the reporting officer and the assessor have not always taken account of the information which he presented to them, or of various articles on the standard operating procedure which had been finalised or of the fact that the Protect project had been submitted before the deadline.

67 Third, he challenges the criticism of his supposed lack of involvement in the implementation of the new pharmacovigilance legislation, as well as the failure to recognise his contribution in that regard. Furthermore, that criticism, he claims, concerned an area that was not included in the job description, as is allegedly apparent from the contested evaluation report.

68 In defence, the Agency disputes at the outset the presentation of the facts by the applicant in respect of the standard operating procedure at issue. In particular, at the hearing, the Agency contended that, in any event, a period of 15 months to draft that standard operating procedure was not justified in the light of its nature, which consisted of a simple modification of an existing standard operating procedure.

69 With regard to the Protect project, the Agency explained that it was referred to in the contested evaluation report as an example to illustrate the inability of the applicant to provide clearly documented plans with a clear timetable for completion, which created a lack of clarity and difficulties in the identification of responsibilities.

70 Finally, the Agency contends that, in terms of the implementation of the new pharmacovigilance legislation, the applicant did not contribute to it voluntarily, notwithstanding the importance of this project for the entire Agency.

71 Regarding the complaints relating to the standard operating procedure at issue and the Protect project, it should be observed that such claims, given the context in which they are made, concern, essentially, the need for the applicant to improve his organisational skills.

72 In that regard, the Agency raised several points capable of confirming that assessment.

73 In terms of the standard operating procedure, it is apparent from the case file that the need to draft it follows on from a problem reported by the applicant, who did not, however, fully comply with the established procedures. In particular, the Agency emphasises that, at the beginning of the procedure the applicant had left only three hours for his team to take a position on the project, which had been criticised by Ms C, and had not duly complied with the internal consultation process.

74 Furthermore, the Agency refers to a very significant delay in the preparation of the standard operating procedure, and at least one period of inactivity between March 2011 and April 2012, for which the applicant had not been able to provide a convincing explanation. Whereas the applicant states that he could not complete that task before the adoption of Regulation No 520/2012, the Agency contested that statement, arguing at the hearing that a standard operating procedure is not a legislative act or an implementing measure but an instrument setting out the internal arrangements of work organisation, so that any amendment of the relevant legislation may result in the need, at most, to adapt an existing standard operating procedure, but not to adopt a new one.

75 The Tribunal considers that not only has the applicant failed to provide any evidence that could render the arguments of the Agency implausible, but that, in addition, the justifications he has provided are not convincing. The decision to prepare the standard operating procedure at issue had been taken following an initiative of the applicant himself during a meeting held on 3 March 2011, with no reference being made to the need to wait for the adoption of Implementing Regulation No 520/2012. Furthermore, the applicant does not refer to such a need either in his e-mail of 24 May 2012, sent to Mr A to inform him of the fact that the standard operating procedure ‘should be ready by the end of June [2012]’, or in his e-mail of 20 June 2012 to inform Mr A of the progress of the work. It was only after having taken note of the second version of the 2010/2012 evaluation report that the applicant had argued for the first time, in his letter to the assessor of 14 September 2012, that it was impossible to finalise the standard operating procedure before the adoption of Implementing Regulation No 520/2012, although the applicant had every interest in reporting that problem to his line management well before that.

76 With regard to the Protect project, the applicant did not contest the fact that he had not provided a clear timetable for the work to be performed.

77 Finally, as regards the complaint directed against the criticisms relating to the applicant’s lack of involvement, the Tribunal notes that it is apparent from the case file that, certainly, he had no specific obligation to participate in the implementation of the new legislation, but that the project had resulted in a major change in the work arrangements of the Agency, so much so that, in the second half of 2010, three calls for candidates had been published in order to constitute teams to work on that issue. In those circumstances, the applicant did not provide evidence capable of demonstrating that the AECE committed a manifest error of assessment in observing that, with his knowledge and experience in the field of pharmacovigilance, he could have made an important contribution to that project and drawing the conclusion that the applicant should make efforts to plan his work taking into account the overall strategy of the Agency.

78 It follows from the above that the applicant has not provided evidence that renders implausible the overall assessments set out in the contested evaluation report and, therefore, has not demonstrated that that report was vitiated by a manifest error of assessment.

80 The applicant criticises the downgrading of some of his assessments, claiming that the contested evaluation report is vitiated by numerous factual errors and discrepancies.

81 First, the applicant observes that his organisational skills were found to be only ‘satisfactory’, despite the fact that two studies concerning the Protect project were completed in advance of the agreed deadline and notwithstanding his strong management skills, as attested by the co-authors of those studies.

82 Second, the assessment for versatility and initiative went from ‘excellent’ to ‘satisfactory’, in spite of the important results that the applicant claims to have obtained in the context of the Protect project and the fact that the contested evaluation report indicates that he is ‘motivated by [p]ublic [h]ealth’, that he worked on safety issues ‘until [their] resolution’ and was involved in pharmaco-epidemiology studies.

83 Third, the applicant claims that the assessment in relation to the criteria of speed and accuracy was downgraded, going from ‘very good’ to ‘satisfactory’, although 18% of the signals detected by his group emanated from him and 85% of his signals led to a major regulatory procedure, even though he spent on average two weeks less than his colleagues in detecting such signals. Furthermore, the contested evaluation report acknowledged that he had a ‘very good understanding of [the European Union] legislative and regulatory framework’.

84 Fourth, his assessment concerning ‘[r]elations with colleagues outside the service’ went from ‘very good’ to ‘satisfactory’, in spite of the important results that the applicant claims to have obtained with worldwide experts in the area of pharmacovigilance and numerous cross-agency activities in which he claims to have been involved. According to the applicant, his excellent relationships with colleagues outside the service is confirmed by the statements of two members of the Pharmacovigilance and Risk Assessment Committee.

85 Fifth, the applicant adds that his ‘[t]eam spirit and [his] relations within the service’ were found to be ‘satisfactory’, while the contested evaluation report stated that the applicant ‘maintains good relations with his colleagues and is willing to share his scientific expertise with the team’, that he ‘supported colleagues in their signal detection and validation activities by sharing his experience and knowledge’, and that he was ‘willing to continue to support the team when an extension of this task was requested for several months until full implementation of automatic alerts’.

86 In defence, the Agency disputes the applicant’s arguments alleging, first, that the management of the Protect project demonstrated that the applicant had not provided clearly documented plans with a clear timetable for completion and, second, that positive assessments of persons external to the Agency cannot replace those of the reporting officer or of the assessor.

87 As regards challenging the individual assessments of the applicant set out above, the Agency considers that these should be analysed as a whole and not separately, and that the positive findings concerning the applicant could not outweigh the existing problems, which would explain the assessments that were attributed to him in the various areas that were appraised.

88 With regard to the assessments concerning ‘versatility and initiative’ and ‘speed and accuracy’, the applicant’s arguments relate to alleged discrepancies between certain positive comments contained in the contested evaluation report and those assessments. However, the fact remains that in the contested evaluation report the AECE merely considered the positive results obtained by the applicant and weighed them against the points for improvement, while the applicant has not been able to provide evidence of any error, still less of a manifest error of assessment.

89 As regards the other two assessments, the applicant bases his arguments, in essence, on the positive feedback from people outside the service. However, it falls exclusively to the applicant’s reporting officer to assess his ability, efficiency and conduct in the context of the staff report provided for in Article 43 of the Staff Regulations. In particular, the fact that the applicant received positive assessments from people with whom he worked does not in itself mean that he achieved the objectives assigned to him by his superiors.

91 The applicant considers that the assessments which were attributed to him do not reflect the quality of the results that he achieved during the period 2010/2012. In addition, he states that, in the decision on the complaint, the Agency refers repeatedly to his grade and length of service which, however, he claims have nothing to do with the level of responsibility. He argues, in that regard, that the appraisal of each employee must be made according to his performance in respect of each work objective.

92 In defence, the Agency contends that the work and studies carried out by the applicant were indeed taken into account in the contested evaluation report. Furthermore, it argues that the expectations of administrations regarding the efficiency, ability and conduct of their staff members vary according to the grade and experience of the staff members concerned.

93 The Agency therefore requests the Tribunal to reject the second plea in its entirety as manifestly unfounded.

94 It should be pointed out at the outset that the staff report is designed not to build an exhaustive picture of a staff member’s performance in carrying out the tasks associated with his post, but to highlight, on the basis of conclusive evidence, each official or staff member’s ability, efficiency and conduct in the service (judgment in van Arum v Parliament, F‑139/07, EU:F:2009:105, paragraph 101).

95 The fact that the contested evaluation report does not mention all the positive performances of the applicant and that it may contain some omissions cannot, therefore, affect its validity. Moreover, contrary to what the applicant maintains, section 2.1 of the contested evaluation report contains a description of the tasks that he performed during the reference period, and section 7 contains positive remarks on his performance.

96 It follows from the foregoing that the contested evaluation report balances the achievements of the applicant and the aspects that he should improve, while the applicant has not provided the Tribunal with any evidence that could prove a manifest error of assessment.

97 Furthermore, the Agency correctly stated in defence that the assessment of the applicant’s efficiency under Article 43 of the Staff Regulations should not ignore his experience and level of responsibility. Indeed, the expectations of an institution or agency of the European Union with regard to its members of staff cannot be unchangeable and may take into account the experience acquired by the member of staff concerned, without that constituting a manifest error of assessment.

98 The Tribunal observes that a number of negative comments contained in the contested evaluation report had already been made in the 2008/2010 evaluation report. In particular, in section 7, ‘General assessment …’ of that report, the reporting officer had suggested that the applicant should adhere more closely to the established procedures. Furthermore, in section 13(a) of that evaluation report, entitled ‘Comments …’, the assessor had indicated that the applicant had difficulties in finding the right balance between respecting procedure and managing urgencies, communicating clearly and effectively, respecting his role as a team member, and seeing his work in the wider context of the Agency’s role, the regulatory network of the European Union and taking into account the evolution of roles with the introduction of new legislation and new responsibilities, and accepting that others may have perspectives and priorities that differ from his. All of those remarks appear in the ‘Areas for improvement’ part of the contested evaluation report. In those circumstances, even assuming that the applicant’s performance had remained unchanged instead of improving on those specific points, as had been requested of him in the 2008/2010 evaluation report, the Agency could legitimately attribute him assessments lower than those contained in the 2008/2010 evaluation report.

The third plea, alleging procedural irregularities relating to the adoption of the contested evaluation report

101 The third plea alleges infringement of the Guide during the procedure relating to the adoption of the contested evaluation report and is divided into two complaints.

102 As regards the first complaint, the applicant submits that several factors suggest that his reporting officer for the period between 15 September 2010 and 30 June 2011, Ms. C, was not consulted prior to the drafting of the contested evaluation report. In particular, the applicant states, first, that several factual errors and omissions in the first draft of the 2010/2012 evaluation report concerned the period during which Ms C was his reporting officer. Moreover, he asserts that Ms. C was not present at any time during the interviews in the context of the procedure for the adoption of the contested evaluation report and that no e-mails were exchanged between her, his reporting officer and his assessor. Furthermore, the applicant observes that, in the draft of the contested evaluation report, as initially sent to him on 11 December 2012, at section 13(b), entitled ‘Comments, if any, of any other superiors consulted’, there appeared a note ‘N/A’ (‘not applicable’). After the adoption of the decision on the complaint, that same note ‘N/A’ was deleted and Ms C signed the contested evaluation report, adding a sentence indicating that she had been consulted. According to the applicant, Ms C should have signed and checked the accuracy of the data before the contested evaluation report was finalised and sent to him.

103 As regards the second complaint, the applicant states that, according to the Guide, where an appeal is made to the executive director of the Agency, he may consult the Joint Committee and that, in the present case, that consultation did not take place and the executive director provided no explanation in that regard.

104 The Agency contests at the outset the admissibility of the first part of the third plea, arguing that it was not referred to in the complaint. It then requests the Tribunal to reject the plea in its entirety as being manifestly unfounded.

105 As regards the complaint alleging the absence of Ms. C’s signature, the Tribunal notes first that, in his complaint, the applicant clearly stated, under the heading ‘Other procedural error’, that the statements of his reporting officer and of his assessor, according to which Ms C had been consulted in the preparation of the contested evaluation report, had not been confirmed by Ms C, since she had not signed the contested evaluation report. Consequently, the objection of inadmissibility alleging that that complaint was raised for the first time in the application is manifestly wrong in fact and must be rejected.

106 With regard to the substance, the Tribunal notes that, according to settled case-law, the primary function of the staff report is to provide the administration with periodic information, which is as complete as possible, on the performance of their duties by its officials and members of staff. The staff report cannot fulfil that function in a truly comprehensive manner if the superiors in the other departments in which the official or member of staff in question carried out his duties are not consulted in advance and given an opportunity to make comments. The absence of such consultation constitutes a substantial procedural irregularity such as to invalidate the staff report (judgment in Latham v Commission, T‑63/89, EU:T:1991:4, paragraph 27).

107 The Tribunal notes that under section D(4) of the Guide ‘[t]he performance evaluation report is signed by both parties and submitted to the Head of Unit (the assessor), for review and signature after which a copy is sent to the staff member and the original is sent to the Head of Unit’.

108 Although the reporting officer should, according to the case-law, have consulted Ms C in the context of the procedure leading to the adoption of the contested evaluation report, section D(4) of the Guide does not provide for any obligation on the part of Ms C to sign the contested evaluation report.

109 Furthermore, it may be noted, simply from reading the contested evaluation report in the version of 11 December 2012, that the reporting officer stated that ‘[t]he reporting officer for the period [between] 15 [September] 2010 [and] 30 [June] 2011] … [had] been consulted and her input [had been] reflected in this performance evaluation’. Moreover, Ms C signed the contested evaluation report after the applicant’s complaint, indicating that she had been consulted and that she had approved, without any reservation, the assessment of the applicant’s performance made by the reporting officer.

110 Finally, no illegality can be inferred from the fact that Ms C did not participate in the various interviews that took place during the procedure for the adoption of the contested evaluation report. The Guide merely establishes that all the reporting officers of the staff members concerned must be consulted by the reporting officer responsible for the preparation of the evaluation report, without setting out any formalities for that consultation.

111 The Court therefore holds that the applicant has not proved the existence of a substantial procedural irregularity such as to invalidate the contested evaluation report. Consequently, the first complaint must be rejected.

112 As regards to the second complaint, it should be noted that, according to section F(2) of the Guide, ‘[t]he Executive Director is responsible for all staff matters and takes all final decisions concerning the report. He may consult the Joint Committee’. It is thus clear from the wording of this provision that the executive director has no obligation to consult the Joint Committee nor to justify his choice not to consult it. It follows that the complaint must be rejected as unfounded in law, without its being necessary to rule on the admissibility of the complaint in the light of the rule of correspondence between the administrative complaint and the action which follows it.

114 Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 102(1) of the Rules of Procedure, the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.

115 It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the Agency has expressly requested that the applicant be ordered to pay the costs. As the circumstances of the present case do not justify the application of the provisions of Article 102(1) of the Rules of Procedure, the applicant must bear his own costs and pay the costs incurred by the Agency.

2. Declares that DE is to bear his own costs and orders him to pay those incurred by the European Medicines Agency.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> DE v EMA (Judgment) [2014] EUECJ F-103/13 (11 December 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/F10313.html Cite as: [2014] EUECJ F-103/13, EU:F:2014:265, ECLI:EU:F:2014:265

Court of Justice of the European Communities (including Court of First Instance Decisions)