QN v Commission (Civil service - Appraisal report - Judgment) [2022] EUECJ T-179/21 (14 September 2022)

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(Civil service – Officials – Appraisal report – 2019 appraisal procedure – Obligation to state reasons – Manifest error of assessment – Duty to have regard for the welfare of officials – Liability)

European Commission, represented by M. Brauhoff and L. Hohenecker, acting as Agents,

composed of J. Svenningsen, President, R. Barents (Rapporteur) and C. Mac Eochaidh, Judges,

1 By his action pursuant to Article 270 TFEU, the applicant, QN, seeks, first, annulment of his 2019 appraisal report and, in so far as necessary, annulment of the decision of 22 December 2020 of the European Commission rejecting his complaint and, second, compensation for the non-material damage he allegedly suffered on account of that report.

2 The applicant, in grade AD 7 when the action was brought, has been an official at the European Commission since late 2009.

3 The applicant’s 2017 appraisal report evaluated his general performance as ‘satisfactory’.

4 The applicant’s working relationships started to become tense in the summer of 2018.

5 The applicant’s 2018 appraisal report evaluated his general performance as ‘satisfactory’.

6 On 21 January 2020, the applicant had a meeting regarding his 2019 appraisal report with his head of unit acting as reporting officer.

7 On 27 January 2020, the applicant met with the medical officer of the Commission’s medical service and was placed on sick leave until 1 June 2020.

9 On 14 April 2020, the applicant received his 2019 appraisal report, where his general performance was rated as satisfactory.

10 On 17 April 2020, the applicant met the mediator of the Commission. On 21 April 2020, the applicant was informed by the mediator that his head of sector had refused the mediation and had ended the mediation immediately.

12 On 5 June 2020, the appeal assessor, the director of the TAXUD.D Directorate, confirmed the 2019 appraisal report further to a dialogue with the applicant at which the director of the TAXUD.E Directorate and a representative of the Staff Committee were present.

13 On 4 September 2020, the applicant filed a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the 2019 appraisal report as signed by the appeal assessor, which contained the following comments (‘the contested comments’):

– ‘[QN] has also worked on some Pillar 1 issues but seems more at ease with the technical aspects than the policy aspects’ (Point 3.1);

– ‘Within his sector in D2, communication and cooperation should be improved. We have discussed this issue but have not yet been able to fully resolve the situation’ (Point 3.2);

– ‘As regards working cooperatively, in general, [QN] has an open approach with colleagues, but (as stated in 3.2) with those within his sector the level of cooperation and communication has not been as successful’ (Point 3.3);

– ‘The long discussion (90 minutes) did not lead me to conclude that the report made by the evaluator was inaccurate … Some elements mentioned orally by the jobholder during the appeal discussion could possibly even contribute to question the conduct in the service of the jobholder during the reporting period’ (statement of reasons for the rejection of the appeal).

14 On 22 December 2020, the appointing authority rejected the applicant’s complaint (‘the decision rejecting the complaint’).

15 On 20 March 2021, the applicant submitted a complaint to the European Ombudsman.

– in the alternative, annul the 2019 appraisal report in so far it contains the contested comments;

18 It should be borne in mind that it is clear from Article 7(4) of Commission Decision C(2013) 8985 final of 16 December 2013 laying down general provisions for implementing Article 43 of the Staff Regulations and implementing the first paragraph of Article 44 of the Staff Regulations (‘the GIPs’) that the preparation of an appraisal report of officials and members of the temporary staff of the Commission is carried out in several stages further to an internal procedure. The person being evaluated may refuse to accept the appraisal report and, in that case, the appraisal report is to be reassessed by an appeal assessor. The appraisal report becomes final only once it has been signed by the appeal assessor; that version constitutes, as a result, the decision adversely affecting the official and open to challenge pursuant to Article 90(2) of the Staff Regulations (see, to that effect, judgment of 11 December 2012, Ntouvas v ECDC, F‑107/11, EU:F:2012:182, paragraph 43). It follows that the present action has the effect of bringing before the Court a claim for annulment of the appraisal report as made final by the decision of the appeal assessor of 5 June 2020.

19 In addition, according to case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 12 March 2020, QB v ECB, T‑215/18, not published, EU:T:2020:92, paragraph 40).

20 In the present case, since the decision rejecting the complaint merely confirms the appraisal report at issue, the claim for annulment of that decision lacks any independent content and there is, therefore, no need to give a specific ruling on it, even though, in the examination of the lawfulness of the appraisal report at issue, it will be necessary to take into consideration the reasoning contained in the decision rejecting the complaint referred to above (see, to that effect, judgment of 12 March 2020, QB v ECB, T‑215/18, not published, EU:T:2020:92, paragraph 40 and the case-law cited).

21 In support of his claim for annulment, the applicant raises four pleas, alleging:

– first, lack of objectives in the appraisal procedure, manifest error of assessment and breach of the duty to have regard for the welfare of officials and breach of the principle of good administration;

– second, infringement of Article 43 of the Staff Regulations and Article 7(3) of the GIPs, failure to have regard to the Commission document ‘Guidance for reporting officers’, manifest errors of assessment and misuse of powers, breach of the duty to have regard for the welfare of officials and breach of the principle of good administration;

– fourth, infringement of the second paragraph of Article 296 TFEU, the second paragraph of Article 25 of the Staff Regulations and Article 41(2) of the Charter.

22 At the hearing, the applicant raised a fifth plea, alleging lack of competence of the signatory of the 2019 appraisal report; it is appropriate to analyse that plea first of all.

The fifth plea, alleging lack of competence of the signatory of the 2019 appraisal report

23 At the hearing, the applicant raised a new plea, alleging that the member of staff of the Account Management Centre (AMC) of the Commission’s human resources department who signed electronically, on 14 April 2020, the applicant’s 2019 appraisal report – because the applicant’s reporting officer had retired – lacked competence to do so.

24 The Commission contends that that plea is manifestly inadmissible and, in any event, unfounded.

25 It must be borne in mind that a plea alleging incompetence of the author of an act adversely affecting a person concerns a matter of public interest. It therefore falls to the Court, in any event, to examine it of its own motion (judgments of 13 July 2000, Salzgitter v Commission, C‑210/98 P, EU:C:2000:397, paragraph 56, and of 13 July 2006, Vounakis v Commission, T‑165/04, EU:T:2006:213, paragraph 30).

26 In the present case, it must be stated that the applicant does not deny that the appraisal report annulment of which is sought was actually signed by the appeal assessor.

27 In those circumstances, the fact that the initial appraisal report, drafted by his head of unit before his retirement, was not signed by that head of unit cannot lead to the annulment of the contested appraisal report, which was signed by the person having competence to do so.

28 In any event, the Court has held, in cases where decisions have been signed by an official in the name of the Commission and subject to its control, that delegation of signature is a method relating to the internal organisation of the services at the Commission which complies with its internal rules and is the normal means whereby the Commission exercises its powers (see, to that effect, judgments of 17 October 1972, Vereeniging van Cementhandelaren v Commission, 8/72, EU:C:1972:84, paragraphs 10 to 14; of 17 January 1984, VBVB and VBBB v Commission, 43/82 and 63/82, EU:C:1984:9, paragraph 14; and of 11 October 1990, FUNOC v Commission, C‑200/89, EU:C:1990:356, paragraphs 13 and 14).

29 It must also be borne in mind that a delegation of implementing powers is lawful under EU law, provided that it is not formally prohibited by any legislative provisions (see judgment of 18 October 2001, X v ECB, T‑333/99, EU:T:2001:251, paragraph 102 and the case-law cited). This must be the case a fortiori of a mere delegation of signature. It does not mean that the assessor designated by the GIPs must relinquish his or her competence to evaluate the member of staff being evaluated. It is not, therefore, a derogation from the attribution of the powers provided for by the GIPs, but a mere arrangement of the formal rules governing their exercise, as the Commission essentially argues (see, to that effect, judgment of 13 July 2006, Vounakis v Commission T‑165/04, EU:T:2006:213, paragraph 49).

30 Furthermore, it is settled case-law that, first, an administrative act is presumed to be lawful and that, secondly, the burden of proof lies, in principle, with the person claiming it to be unlawful, so that it is for the applicant to provide at the very least sufficiently precise, objective and consistent information to corroborate the truth or likelihood of the facts in support of his or her claim (see, to that effect, judgment of 12 May 2021, Alba Aguilera and Others v EEAS, T‑119/17 RENV, EU:T:2021:254, paragraph 105 and the case-law cited).

31 However, the applicant merely criticises the fact that the appraisal report was signed electronically, after the reporting officer had retired, by a member of the AMC, without adducing any evidence or even information to show or even suggest that the official who signed lacked the necessary competence to do so.

33 According to the applicant, neither his head of unit, acting as reporting officer, nor the appeal assessor gave sufficient reasons in the appraisal report. It contains no more than very short comments that are not supported by any concrete factual examples, which does not make it possible for the applicant to understand the situations in which issues could not be resolved or in which the level of cooperation and communication had not been as successful. The applicant claims that he is unable to determine clearly what matters are being referred to and to exercise properly his rights of defence, which constitutes an infringement of the second paragraph of Article 296 TFEU, the second paragraph of Article 25 of the Staff Regulations, and Article 41(2) of the Charter. The decision rejecting the complaint does not contain any additional reasoning and states that the obligation to state reasons has been fully complied with.

35 It is settled case-law that the administration is obliged to state in a sufficient and detailed manner the reasons on which an appraisal report is based in order to give the person concerned an opportunity to make observations on those reasons, compliance with those requirements being all the more important where the assessment is less favourable compared with the previous report (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 144 and the case-law cited).

36 It should also be borne in mind that, although the administration is obliged to state in a sufficient and detailed manner the reasons on which an appraisal report is based in order to give the person concerned an opportunity to make observations on those reasons, reporting officers, who have a broad discretion when judging the work of persons upon whom they must report, are not required to include in their report all the relevant factual and legal elements which support their appraisal. In that regard, it is sufficient, in principle, for the appraisal report to set out the salient points of the official’s performance in terms, in particular, of his or her efficiency, ability and conduct in the service, and to appraise them. Subject to the obligation to state reasons and provided that the appraisal is clearly individualised and not impersonal, a reporting officer is not obliged to give details of the grounds for his or her assessment by providing specific examples to substantiate his or her value judgements (see judgment of 9 June 2021, Hill Mansilla v Commission, T‑575/19, not published, EU:T:2021:324, paragraph 79 and the case-law cited).

37 The obligation to state reasons is intended to enable the Court to review the legality of decisions that adversely affect persons and to provide the persons concerned with details sufficient to allow him or her to ascertain whether those decisions are well founded or whether they are vitiated by an error which will allow their legality to be contested (see judgment of 19 September 2019, FV v Council, T‑153/17, not published, EU:T:2019:622, paragraph 51 and the case-law cited).

38 The extent of the obligation to state reasons depends on the specific circumstances, inter alia, the content of the measure in question and the nature of the reasons given (see judgment of 19 September 2019, FV v Council, T‑153/17, not published, EU:T:2019:622, paragraph 52 and the case-law cited).

39 In the present case, it must be observed that the appraisal report at issue contains, in the overall appraisal in point 3.7, a general performance grade of ‘satisfactory’, which is, moreover, identical to the general performance grade in the 2017 and 2018 appraisal reports. The Court does not find that the 2019 assessment is less favourable than that of the preceding years.

40 As regards, more specifically, the comments in points 3.2 and 3.3 of the appraisal report at issue, which are the only contested comments supporting the plea alleging infringement of the obligation to state reasons, the Court considers them to be sufficiently clear, individualised and consistent having regard to the criterion being evaluated.

41 In that connection, it must be pointed out that Article 43 of the Staff Regulations does not in any way state that there might be an obligation to support, by means of factual elements, the comments in an appraisal report. By contrast, in accordance with the case-law cited in paragraph 36 above, reporting officers have a broad discretion when evaluating the work of the person being assessed and the existence of such discretion presupposes that reporting officers are not required to include in their appraisal report all the relevant factual and legal elements which support their appraisal, or to examine and respond to all the points which have been challenged by the person being assessed, particularly where his or her performance has been judged to be satisfactory.

42 As regards the appeal assessor’s evaluation that ‘some elements mentioned orally by the jobholder during the appeal discussion could possibly even contribute to question the conduct in the service of the jobholder during the reporting period’, which, it is argued, surprised the applicant, it must be observed that the appeal assessor approved without reservations the statements in the initial report. It has been held that, where the validity or well-founded nature of the initial report has not been called into question by one of the bodies involved in the appraisal procedure, the appeal assessor cannot be required to provide additional explanations if the initial report gave sufficient reasons. As a result, the appeal assessor was not required to provide additional explanations as to the reasons which led him to validate the initial report following the formal dialogue with the applicant and to reject each of the arguments put forward by the applicant in the course of his appeal.

43 It follows that the appraisal report at issue gives sufficient and detailed reasons which thus made it possible for the applicant to make observations on those reasons and for the Court to review the legality of that report.

The third plea, alleging infringement of Article 41(1) of the Charter and breach of the rules of objectivity and impartiality

45 According to the applicant, in the first place, the assessment carried out by his head of unit in his capacity as reporting officer is vitiated by a lack of objectivity and impartiality, since that head of unit had a very tense working relationship with the applicant. The applicant submits that the head of unit made comments which were beyond a ‘certain irritation’, which shows that he was not capable of carrying out his role as reporting officer objectively and impartially pursuant to Article 41(1) of the Charter. The applicant also claims that it is likely that the reporting officer informed the director of the human resources department, who, in turn, informed the medical service, that the applicant was difficult to work with, thereby seriously impairing their impartiality.

46 In the second place, the applicant maintains that the appeal assessor, before the appeal decision was taken and even before the appeal was drafted and the discussion took place, made comments which show a lack of objectivity and impartiality. The applicant claims that the appeal assessor had, as a result, already taken his decision, irrespective of the arguments and comments set out by the applicant in his appeal, and based that decision on a series of emails, forwarded by the head of sector and the head of unit, on which the applicant had not had the opportunity to comment or which he had not had the opportunity to examine. Lastly, the involvement of a second person in the assessment procedure is a mitigating factor which counterbalances the comments made by the first person acting as assessor. That guarantee is effective only if that second person adopts a truly objective and impartial approach, which is not the case here given the comments made even before the appeal was brought.

48 With regard to the lack of impartiality and objectivity on the part of the reporting officer, it should be noted that, under Article 41(1) of the Charter, every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union. That requirement of impartiality includes inter alia subjective impartiality, which means that members of a pre-selection panel must not show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary (see, to that effect, judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 93 and the case-law cited).

49 Furthermore, even though the possibility cannot be excluded that differences between an official and his or her immediate superior may cause a degree of irritation on the part of that immediate superior, that possibility does not, as such, imply that the immediate superior is no longer in a position to assess objectively the merits of the person concerned. It has moreover been held that, even the fact that a staff member has lodged a complaint of harassment against the official who is to assess his or her professional performance cannot of itself, without more, call into question the impartiality of the person against whom the complaint has been lodged (see judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 94 and the case-law cited).

50 Furthermore, it is clear from the case-law that only the involvement of managers in the professional activities of the staff members reporting to them enables the former to make the most appropriate assessment possible of the activities of the persons under them. Acceptance of an argument whereby neither the head of unit nor any member of the management of the department to which a staff member is assigned should take part in the appraisal procedure would lead to a situation in which a proper assessment of the performance of the staff member and of his or her conduct in the service would not be ensured (see judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 95 and the case-law cited).

51 Lastly, according to settled case-law, the appraisal report contains the appraisers’ freely expressed opinion. It follows that a certain amount of subjectivity is inherent in the assessments in that report, as in any personal opinion (see judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 96 and the case-law cited).

52 In the present case, the applicant refers to a meeting with his head of unit on 3 October 2019, during which the head of unit allegedly accused the applicant of having lied to him about his use of the flexitime system. It must, however, be stated that, although that event could have given rise to a certain amount of frustration on the part of the head of unit, the assessments in the appraisal report do not reflect this in any way, as the report states that the applicant’s work was satisfactory. The same is true of the applicant’s meeting with his head of unit as reporting officer of 21 January 2020 regarding his appraisal report. The events described by the applicant, which appear to show that there were differences between the applicant and the appraiser and that there was a certain amount of irritation on the part of the latter, do not, as such, mean that the appraiser was no longer able to assess the merits of the applicant objectively. It must also be noted that the evaluations contained in the appraisal report at issue cannot, as such, be regarded as evidence that that report was drawn up with a lack of impartiality and objectivity, since they state that the applicant’s work was satisfactory.

53 Lastly, the applicant’s argument that it is likely that the reporting officer informed the director of the human resources department, who, in turn, informed the medical service, that the applicant was difficult to work with is a mere allegation which cannot be regarded as an indication that the appraisal report was not drawn up with complete objectivity and impartiality.

54 As regards the objectivity and impartiality of the appeal assessor, it must be stated that it has not been shown that that assessor was not independent of the initial reporting officer and that he failed to re-examine the appraisal report with complete objectivity and impartiality. Failing evidence of breach of the duty of impartiality, and given that the appeal assessor is the direct hierarchical superior of the initial reporting officer, appointed in accordance with Article 3(2) of the GIPs, and was well placed to carry out the duties of appeal assessor and to assess freely whether the initial reporting officer’s appraisal was well founded, thereby ensuring that he will carry out his duties impartially (see, to that effect, judgment of 8 September 2021, QB v ECB, T‑555/20, not published, EU:T:2021:552, paragraph 86), the applicant’s reasoning must be rejected.

The first plea, alleging lack of objectives in the appraisal procedure, manifest error of assessment, breach of the duty to have regard for the welfare of officials and breach of the principle of good administration

56 The applicant submits that setting objectives at the start of the annual appraisal exercise is, according to case-law, an essential factor in the appraisal procedure, even though the rules in force do not mention it specifically. In addition, the Court has also consistently held that the lack of objectives in an appraisal report leads to its annulment on the basis of manifest error of assessment, breach of the duty to have regard for the welfare of officials and breach of the principle of good administration. The job description guidelines of October 2019 and the guidance relating to objectives emphasise the importance of setting objectives for the professional performance of officials. However, the applicant submits that neither the Sysper system nor the applicant’s career development report contains objectives for the 2019 reporting year, which constitutes an even more substantial irregularity given that the job description sets out clear tasks which, in order to be achieved during the year, should be accompanied by clear annual objectives. Although one of the applicant’s duties set out in the job description consists in ensuring compatibility with the Organisation for Economic Cooperation and Development (OECD) Transfer Pricing Guidelines, he claims that he was criticised for having corrected his head of sector while he gave his opinion on an exemption scheme that did not correspond to how those guidelines should be interpreted. Such comments and criticisms cannot be considered as fair and impartial if they are not made on the basis of clear and predefined objectives.

‘The ability, efficiency and conduct in the service of each official shall be the subject of an annual report as provided for by the appointing authority of each institution in accordance with Article 110 [of the Staff Regulations]. That report shall state whether or not the performance level of the official has been satisfactory. The appointing authority of each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before the lodging of a complaint as referred to in Article 90(2).’

‘1. Every year, a report covering the period from 1 January to 31 December of the preceding year (hereinafter referred to as “the reporting period”) shall be drawn up for each jobholder who was in active employment or seconded in the interests of the service for a continuous period of at least one month during the reporting period.

2. Each report shall include an individual qualitative appraisal of the jobholder’s efficiency, ability and conduct in the service. The report shall be concerned with all the jobholder’s professional activities.

3. Each report shall also include a conclusion on whether the jobholder’s performance has been satisfactory. The conclusion that the jobholder’s performance has been unsatisfactory shall be based on factual elements. …’

‘The individual qualitative appraisal shall be based on the ability, efficiency and conduct in the service of the jobholder, taking account of the context within which the jobholder has performed his duties. The individual qualitative appraisal shall not include a comparison with the performance of other individual jobholders’.

61 It must be borne in mind at the outset that infringement of the rules requiring the setting of objectives for an official at the beginning of each appraisal period is substantial and warrants a declaration that the contested appraisal report is unlawful (see, to that effect, judgment of 18 September 2015, Wahlström v Frontex, T‑653/13 P, EU:T:2015:652, paragraph 48 and the case-law cited). That case-law reflects the fact that reporting officers have a particularly broad discretion, for the purposes of the appraisal of officials, which must be counterbalanced by especially strict compliance with the rules governing the organisation of the appraisal and the conduct of the procedure laid down to that end (see, to that effect, judgment of 3 December 2019, Pethke v EUIPO, T‑808/17, EU:T:2019:832, paragraph 41 and the case-law cited).

62 However, it is also settled case-law that it is only where there are rules within the institution which require an official to be set objectives at the beginning of an appraisal period that infringement of those rules is substantial and warrants a declaration that the contested appraisal is unlawful on the ground that the job description was not adequate in terms of setting objectives (see judgment of 12 May 2016, FS v EESC, F‑50/15, EU:F:2016:119, paragraph 100 and the case-law cited).

63 It should be noted that, in the present case, neither the Staff Regulations nor the GIPs contain guidance regarding the setting of objectives. Moreover, there are no rules within the Commission requiring the setting of objectives for officials at the beginning of an appraisal period.

64 The job description guidelines relied on by the applicant contain only a single sentence in their introduction, relating to objectives and according to which ‘to manage the work and assess staff performance, it is important to have accurate [job descriptions] and targeted professional objectives’. That sentence does not establish a rule requiring the institution to set objectives, but is merely a recommendation.

65 As regards the document entitled ‘staff matters’, published by the Commission’s human resources department and containing information on the appraisal procedure for officials, to which the applicant also refers, that document contains two paragraphs relating to objectives.

66 Those paragraphs are not an internal rule which is in any way binding. The first explains what an objective is and how it is set; the second explains that written objectives are an essential management tool and that hierarchical superiors should enter those objectives into the Sysper system, keep them clear and specific and update them. The second paragraph specifies that those objectives do not have to be very detailed or numerous as long as the official and his or her manager understand them in the same way. In the present case, those paragraphs do not, therefore, lay down an obligation to set such objectives, but rather contain an explanation should such a tool exist.

67 Regarding the document produced by the Commission in Annex B.2 to the defence, entitled ‘Constructive dialogue and fair report: guidance for Reporting Officers’, the Commission explained, without being challenged by the applicant, that that document was available on its intranet under the name ‘Tips on how to conduct a dialogue and write a fair report’. That document, which is neither dated nor signed, and merely lists simple recommendations and advice for reporting officers, does not have any binding legal force.

68 The applicant’s arguments do not make any further contribution to proving that the Commission has an obligation to set objectives.

69 As regards the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), it is sufficient to note that it concerned the promotion of an official and the differences between a probationary report and an appraisal report, and not the setting of objectives in the context of the lawfulness of an appraisal report.

70 Accordingly, the fact that no objectives were set in the present case does not vitiate the appraisal report by a manifest error of assessment and does not constitute a breach of the duty to have regard for the welfare of officials or a breach of the principle of good administration. The first plea must, therefore, be rejected.

The second plea, alleging infringement of Article 43 of the Staff Regulations, failure to have regard to Article 7(3) of the GIPs and to the guidance for reporting officers, manifest errors of assessment and misuse of powers, and breach of the duty to have regard for the welfare of officials and breach of the principle of good administration

71 The applicant challenges four comments, which he claims minimise his work relating to OECD Pillar 1, raise questions of ability and issues of cooperation and communication with colleagues and call into question his conduct in the service. In that connection, he states that, according to case-law (judgment of 30 January 2013, Wahlström v Frontex, F‑87/11, EU:F:2013:10), internal directives are binding on the authority which adopted them and their infringement results in the unlawfulness of the contested comments.

72 In the first place, the applicant challenges the comment: ‘[QN] has also worked on some Pillar 1 issues’. He states that the reporting officer did not take his self-appraisal into account. More specifically, the term ‘some’ does not accurately reflect his contribution to the work done on Pillar 1, which represented at least 70% of his tasks in 2019.

73 In the second place, the applicant submits that the reporting officer had failed to base his feedback on facts rather than on impressions or subjective interpretation, and had failed to ensure that those comments were supported by examples, which runs counter to the guidance for reporting officers. The comment that ‘[QN] seems more at ease with the technical aspects than the policy aspects’ is baseless. What is more, the applicant claims that he was never informed that he had issues with policy aspects, whether in 2019 or during the appraisal report meeting. As far as concerns the comments relating to alleged issues of cooperation and communication with colleagues, they are not supported by specific examples either and are contradicted by a comment of the head of sector, stating ‘I do not think you ever had an issue cooperating with colleagues’. Three colleagues in the same sector as the applicant confirmed that their cooperation with him had been good.

74 In the third place, in the light of the guidance for reporting officers, the applicant disputes the appeal assessor’s statements regarding his own conduct in the sector, according to which ‘some elements mentioned orally by the jobholder during the appeal discussion could possibly even contribute to question the conduct in the service of the jobholder during the reporting period’. That statement surprised him. The appeal assessor did not set out what those specific elements were, failed to verify certain comments and failed to ensure that those comments were supported by examples. That comment is also contrary to Article 7(3) of the GIPs.

75 The applicant also challenges the following comment made by the appeal assessor: ‘The long discussion (90 minutes) did not lead me to conclude that the report made by the evaluator was inaccurate’. According to the applicant, the contested comments cannot in actual fact be regarded as accurate, as they are vitiated by a manifest error of assessment on account of the harassment suffered by the applicant and established in the light of the events he claims to have experienced in 2019. The appraisal report is also vitiated by misuse of powers, because those comments are detrimental to his personality, dignity and mental integrity. Furthermore, the applicant claims, referring to the events that took place from the summer of 2018 to January 2020, that the Commission failed to have regard for his welfare and failed to comply with its duty of good administration, as it took no measure to replace the reporting officer even though the very tense relationship between the reporting officer and the applicant constituted harassment. Instead, those same events and exchanges were regarded by the appeal assessor as the basis for the negative assessment regarding the applicant’s cooperation with the colleagues in his sector.

77 It should be borne in mind first of all, as set out in paragraph 67 above, that the document relating to guidance for reporting officers, which is neither dated nor signed, does not have any binding legal force.

78 It should next be noted that, according to well-established case-law on the appraisal procedure for officials, reporting officers have the broadest discretion when judging the work of persons upon whom they must report and it is not for the Courts to interfere with their assessments or review the validity thereof, save in the case of error or manifest exaggeration. Indeed, review by the Courts of the content of appraisal reports is limited to ensuring that the procedure has been conducted in a lawful manner, the facts are materially correct and there is no manifest error of assessment or misuse of powers (see judgment of 16 June 2021, PL v Commission, T‑586/19, not published, under appeal, EU:T:2021:370, paragraph 60 and the case-law cited).

79 Next, it must be noted that an error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise of decision-making powers 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 an appraisal report, 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 contested assessment may still be accepted as true or valid (see, to that effect, judgment of 12 March 2020, QB v ECB, T‑215/18, not published, EU:T:2020:92, paragraph 102 and the case-law cited).

80 Lastly, the existence of a broad discretion with regard to appraisal presupposes that reporting officers are not required to include in their appraisal report all the relevant factual and legal elements which support their appraisal, or to examine and respond to all the points which have been challenged by the person being assessed (see, to that effect, judgment of 12 March 2020, QB v ECB, T‑215/18, not published, EU:T:2020:92, paragraph 103 and the case-law cited).

81 It is appropriate to examine the three parts of the second plea raised by the applicant, in support of the claim for annulment of the appraisal report at issue, in the light of the foregoing considerations.

– The first part of the second plea, alleging that the applicant’s self-appraisal was not taken into account in respect of the comment ‘[QN] has also worked on some Pillar 1 issues’

82 First of all, it must be stated that the reporting officer’s assessment in point 3.1 of the appraisal report relates not only to the tasks carried out by the applicant in relation to Pillar 1, but also to all the other fields in which he worked during the appraisal period. Accordingly, the applicant lists in his self-appraisal a dozen tasks in respect of which he used his qualifications and skills and which he carried out in 2019, five of which relate to Pillar 1. The reporting officer lists, as examples, five different fields in which the applicant worked and which the latter also cited in the dozen tasks that he listed. Next, the reporting officer states that the applicant also worked on some Pillar 1 files where he appeared to be more at ease with the technical aspects than the policy aspects. That assessment, and the use of the word ‘some’ in particular, appears, rather, given the reporting officer’s statements regarding the other fields, to consolidate the five Pillar 1 files, not to minimise the work carried out in that field. In any event, that assessment does not contain any manifest error of assessment regarding the self-appraisal which was, in fact, taken into account, the reporting officer stating that the applicant listed a number of fields in which he worked, and mentioning some of them specifically or grouping them together

83 Next, it must be stated that the applicant did not adduce any evidence which would make it possible for the Court to find that a manifest error was made in assessing the significance and relevance of the work he carried out during the 2019 reporting period in Pillar 1 in relation to other fields. As stated in paragraph 82 above, the applicant lists in his self-appraisal 12 tasks carried out, 5 of which appear to concern Pillar 1, while stating at the outset that his main achievements related to that pillar.

84 It follows that the applicant has not adduced evidence or raised arguments capable of rendering implausible the assessment that has been called into question and that, therefore, he has not shown to the requisite legal standard, according to the case-law cited in paragraph 79 above, that the appraisal report at issue is vitiated by a manifest error regarding the contested assessment concerning his work in Pillar 1.

85 It follows from the foregoing that the first part of the second plea in law must be rejected as unfounded.

– The second part of the second plea, alleging that there is no basis for the comments relating to competence issues and to issues of cooperation and communication with colleagues

– ‘[QN] seems more at ease with the technical aspects than the policy aspects’ (Point 3.1);

– ‘Within his sector in D2, communication and cooperation should be improved. We have discussed this issue but have not yet been able to fully resolve the situation’ (Point 3.2);

87 It should be borne in mind that, according to the case-law cited in paragraphs 36 and 41 above, although the administration is obliged to state in a sufficient and detailed manner the reasons on which an appraisal report is based in order to give the person concerned an opportunity to make observations on those reasons, reporting officers, who have a broad discretion when judging the work of persons upon whom they must report, are not required to include in their report all the relevant factual and legal elements which support their appraisal. In that regard, it is sufficient, in principle, for the appraisal report to set out the salient points of the official’s performance in terms, in particular, of his or her efficiency, ability and conduct in the service, and to appraise them. Provided that the appraisal is, as in the present case, clearly individualised and not impersonal, a reporting officer is not obliged to give details of the grounds for his or her assessment by providing specific examples to substantiate his or her value judgements (see, to that effect, judgment of 12 July 2018, PA v Parliament, T‑608/16, not published, EU:T:2018:440, paragraphs 30 to 32 and the case-law cited).

88 In addition, it may be recalled in that respect that the appraisal report is designed not to build an exhaustive picture of an official’s performance in carrying out the tasks associated with his or her post, but to highlight, on the basis of conclusive evidence, the ability, efficiency and conduct in the service of each official (judgment of 12 July 2018, PA v Parliament, T‑608/16, not published, EU:T:2018:440, paragraph 31; see also, to that effect, judgment of 12 March 2020, QB v ECB, T‑215/18, not published, EU:T:2020:92, paragraph 110).

89 It that regard, it must be borne in mind that the purpose of an appraisal report is to constitute written, formal evidence of the quality of the work carried out by the official, in such a way that it 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 or her professional life (see judgment of 29 September 2011, AJ v Commission, F‑80/10, EU:F:2011:172, paragraph 58 and the case-law cited).

90 In the present case, regarding the comment by which the reporting officer stated that the applicant appears to be more at ease with technical aspects than policy aspects in Pillar 1, it must be noted that that assessment contains a value judgement which, by its very nature, cannot be verified objectively and, as such, cannot therefore be subject to judicial review (see, to that effect, judgment of 25 October 2005, Cwik v Commission, T‑96/04, EU:T:2005:376, paragraph 41). In any event, the mere fact that the reporting officer did not support that statement with a specific example is not enough to render that assessment implausible and does not, therefore, constitute a manifest error of assessment.

91 That finding is not called into question by the applicant’s argument that he had never been informed about issues that he might have with policy aspects of Pillar 1. First, the comment does not state that he has ‘issues with policy aspects’, merely that he appears to be more at ease with technical aspects and, second, it is clear, in essence, from the 2018 appraisal report that the applicant’s challenge for 2019 was to apply his knowledge in a more ‘political’ way, by, inter alia, drafting in a way that is more accessible to ‘non experts’, which would give him a better chance to convince his colleagues and addressees.

92 That finding is not called into question either by the applicant’s argument that statements by some of his colleagues show that he cooperated well. Such statements are not likely to render implausible the assessment of the applicant’s head of unit regarding the applicant’s conduct within the service on the basis of his written and oral communication, particularly given the fact that it is common ground that the relationship between the applicant and his head of sector was tense in 2019. Consequently, the evidence adduced by the applicant is not capable of rendering implausible the assessments contained in the contested appraisal report.

– The third part of the second plea in law, alleging that there is no basis for the comments of the appeal assessor

94 In the first place, the applicant states that, regarding ‘some elements mentioned orally’, the appeal assessor did not set out what those specific elements were and failed to ensure that those comments were supported by examples.

95 It should be borne in mind, as is apparent from paragraph 87 above, that, according to the case-law, the broad discretion of reporting officers does not require all the facts to be set out and specific examples to be given. In any event, the fact that the appraisal report was confirmed did not prevent the appeal assessor from making such a comment following his dialogue with the applicant.

96 As to the claim that the contested comment is also contrary to Article 7(3) of the GIPs, according to which ‘the decision of the appeal assessor may not be based on facts which the jobholder has not yet had an opportunity to comment upon in the course of the appraisal or the appeal procedure, unless he is given an opportunity to do so by the appeal assessor in good time’, it must be specified that, in the present case, it is a question of ‘some elements mentioned orally by the jobholder during the appeal discussion’ on which the applicant was therefore given an opportunity to comment. That complaint must, consequently, be rejected.

97 In the second place, regarding the fact that the appeal assessor considered the reporting officer’s report to be ‘accurate’, it must be pointed out that, in the light of what has been examined in paragraphs 90 to 92 above and since the applicant has not adduced any evidence to show that the contested comments were implausible, the appeal assessor’s assessment at issue in this case does not appear to be in any way implausible. That complaint must, therefore, be rejected.

98 Next, the applicant asserts that the pressure that was put on him and the criticism he received, without his work and skill being recognised, were seriously detrimental to his working conditions and constitute harassment within the meaning of Article 12a(3) of the Staff Regulations. The contested comments are a direct result of that harassment situation and would not have been included in the appraisal report had the applicant not been a victim of harassment.

99 In that regard, it should be noted that it has been recognised that it is possible to rely on psychological harassment to support a claim for annulment which is not directed against the decision to refuse to grant a request for assistance made by a member of staff on the ground that the latter considers himself or herself to be the victim of harassment, but which is directed against other decisions taken by the administration (see, to that effect, judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 147 and the case-law cited).

100 However, a claim of psychological harassment by a line manager, made by an applicant, is not sufficient to show that any measure adopted by the applicant’s superiors is unlawful. The person concerned must also show the impact on the contested measure of the conduct alleged to constitute psychological harassment. Accordingly, it is only on a purely exceptional basis that a plea in law based on a supposed case of harassment can be relied on in the context of a review of the legality of an act adversely affecting a person, such as, in the present case, a staff report, and only if it appears that there is a link between the alleged harassment and the negative assessments contained in such a report (see, to that effect, judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 148 and the case-law cited).

101 In that connection, it must be stated that the applicant does not identify a link between the alleged events and the contested comments made by the appeal assessor in the appraisal report, especially since the applicant has been unable to show that there is a manifest error of assessment vitiating that report.

102 Furthermore, the applicant has not adduced evidence capable of establishing harassment by his head of unit or head of sector.

103 In any event, ‘psychological harassment’ within the meaning of Article 12a(3) of the Staff Regulations is defined as any ‘improper conduct’ that takes place over a period, is ‘repetitive or systematic’ and involves physical behaviour, spoken or written language, gestures or other acts that may undermine the personality, dignity or physical or psychological integrity of any person (see, to that effect, judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 152 and the case-law cited).

104 As the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, the classification of ‘harassment’ is subject to the condition of its being sufficient, when viewed objectively, to be considered real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider the conduct or act in question to be excessive and open to criticism (see, to that effect, judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 153 and the case-law cited).

105 However, the contested comments cannot constitute objective evidence of any psychological harassment by the former head of unit or the head of sector, since neither the reporting officer nor the appeal assessor, by their contested comments, suggest that the applicant’s personality, dignity or physical or psychological integrity have been undermined or indicate any form of distress. The comments do not contain any criticism of the applicant and, further, define his work as being satisfactory.

106 The only comment containing a request for improvement relating to the applicant’s communication and cooperation with his colleagues cannot, even in the context of a tense relationship between the applicant and his head of sector, be regarded, on its own, as resulting from any form of harassment.

107 Although the various medical reports produced by the applicant show the existence of mental health issues, they do not make it possible to conclude that those issues result from psychological harassment. First, the reports of 18, 20 and 21 January 2021 and of 19 and 22 March 2021 did not find that psychological harassment had taken place. Further, although the report by Dr A of 9 January 2021 does, admittedly, state that certain facts could indeed constitute psychological harassment, it must be stated that the author of that report necessarily relied exclusively on the applicant’s description of his working conditions at the Commission, which is not sufficient to show that the mental health issues in question are the result of psychological harassment (see, to that effect, judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 127 and the case-law cited).

108 Having regard to the foregoing, it must be found, in the light of the case-law cited in paragraph 100 above, that the applicant has not been able to show that psychological harassment took place or, a fortiori, that such a situation has had an impact on the content of the appraisal report at issue.

109 Having regard to the foregoing considerations and to the facts relied on by the applicant, taken individually or as a whole, the Court considers them to reveal, admittedly, a conflictual relationship, but does not consider them to be evidence of improper acts. Nor is there, therefore, misuse of powers, breach of the duty to have regard for the welfare of officials or breach of the principle of good administration.

110 Accordingly, the second plea and, consequently, the claim for annulment must be rejected as unfounded.

111 The applicant seeks financial compensation for the non-material damage he claims to have suffered, estimated at EUR 50 000, as a result of the allegedly unlawful acts referred to above, as those acts caused him a considerable amount of stress and strong feelings of injustice, lack of respect and defamation, which were irremediably detrimental to his health, his dignity and his professional reputation. The applicant submits that existence of harassment has been established and the alleged damage cannot be made good by the annulment of the contested decision alone.

112 The Commission contends that there is no causal link between the applicant’s health issues and the appraisal procedure or the behaviour of his superiors towards him. Moreover, as the claim for annulment should be rejected, the claim for damages should also be rejected.

113 It is settled case-law that where an application for compensation is closely related to an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for compensation (see, to that effect, judgment of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43 and the case-law cited).

114 In the present case, such a relationship exists between the claim for annulment and the claim for compensation.

115 Since the claim for annulment has been rejected, the claim for compensation must also be rejected and, accordingly, the action must be dismissed in its entirety.

116 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

117 Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> QN v Commission (Civil service - Appraisal report - Judgment) [2022] EUECJ T-179/21 (14 September 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T17921.html Cite as: [2022] EUECJ T-179/21

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