Morgan v OHIM (Judgment) [2014] EUECJ F-26/13 (08 July 2014)

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(Civil service - Officials - Reports procedure - Appraisal report - Application for annulment of the appraisal report)

Rhys Morgan, official at the Office for Harmonisation in the Internal Market (Trade Marks and Designs), residing in Alicante (Spain), represented by H. Tettenborn, lawyer,

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented initially by G. Faedo, and subsequently by M. Paolacci, acting as Agents,

composed of S. Van Raepenbusch, President, R. Barents (Rapporteur) and K. Bradley, Judges,

having regard to the written procedure and further to the hearing on 15 January 2014,

1 By application lodged at the Registry of the Tribunal on 27 March 2013, Mr Morgan seeks the annulment of his appraisal report covering the period from 1 October 2010 to 30 September 2011, and an order that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pay him at least EUR 500 by way of damages.

2 Article 132 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), entitled ‘Opposition Divisions’, provides as follows:

‘1. An Opposition Division shall be responsible for taking decisions on an opposition to an application to register a Community trade mark [lodged with OHIM].

2. The decisions of the Opposition Divisions shall be taken by three-member groups. At least one member shall be legally qualified. In certain specific cases provided for in the [Regulation implementing this Regulation], the decisions shall be taken by a single member.’

3 The legal context also encompasses Article 43 of the Staff Regulations of Officials of the European Union, in the version prior to the entry into force of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (‘the Staff Regulations’), and by Decision ADM-04-18-Rev, adopted by OHIM on 27 July 2005 and fixing the general provisions implementing Article 43 of the Staff Regulations (‘the GIP’). Article 12, paragraph 5, of the GIP provides as follows:

‘As a conclusion to the formal dialogue, the reporting officer shall inform the jobholder of the outline of the report and [of] his or her general assessment proposal.’

‘If the opinion of the Joint Evaluation and Promotion Committee proposes an amendment, it shall be up to the reporting officer either to draw up a new draft report (total or partial, depending on the recommendation received), or to uphold the report, justifying [his] decision in writing. The report shall then be sent to the countersigning officer within 10 working days of receipt of the opinion of the Joint Evaluation and Promotion Committee. The countersigning officer shall countersign the report and send it without delay to the jobholder and the secretariat of the JEPC, and forward it to the Human Resources Department to be filed in the [jobholder’s] personal file.’

5 The applicant is an official in the Administrator function group (AD), at Grade AD 10. He took up his duties with OHIM in 1998. Until November 2009, he occupied the post of legal assistant with the Second Board of Appeal of OHIM. Since then, he has been employed as an intellectual property administrator in Service 2 of the ‘Operations’ department and is in charge of decisions on Community trade mark applications. His line manager, head of Service 2 and his reporting officer, is Ms A. The Director of the ‘Operations’ department and the applicant’s countersigning officer is Mr B.

6 In accordance with OHIM’s practice of management by objectives, in respect of each appraisal exercise, each member of staff is assigned five objectives. Objective 1, which concerns all OHIM staff, defines the expected contribution from each member of staff to the overall objective of OHIM; objective 2 concerns all the staff in a given OHIM department; objectives 3, 4 and 5, are individual and concern, inter alia, the performance expected from the member of staff in terms of quantity, quality, observance of time-limits and professional development.

7 The applicant is a member of the Opposition Divisions within the meaning of Article 132 of Regulation No 207/2009. Every member of an Opposition Division must draft a certain number of decisions as Rapporteur and must re-read and co-sign the decisions of his colleagues.

8 Objective 3 for an administrator in the ‘Operations’ department is the adoption of decisions for a total of 115 points per year. That system of points is based on a classification of decisions according to their level of difficulty.

9 Within the ‘Operations’ department, the output of the administrators adopting decisions is reviewed each month in relation to the quantitative objectives by means of statistics and reports.

2. The appraisal report for the period from 1 October 2009 to 30 September 2010

10 It is apparent from the applicant’s appraisal report for the period from 1 October 2009 to 30 September 2010 that, in May 2010, because of his unsatisfactory output, his annual quantitative objective, in terms of the adoption of decisions, of 105.42 points had been reduced to 80 points. He eventually achieved 58.4 points in that period. The general assessment of the applicant’s output in respect of that period was the following: ‘The efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied. Improvements are needed[.]’

11 In respect of the appraisal period from 1 October 2010 to 30 September 2011, the applicant was assigned, in terms of the adoption of decisions, an amended annual quantitative objective of 105.4 points out of the 115 points normally required, in order to take account of the fact that, for two months of the appraisal period, he had to devote half of his working time to the ‘Quality’ service of the ‘Operations’ department in order to contribute to the updating of part of the OHIM Quality Management System Manual.

12 On 31 March 2011, the applicant was warned by his line managers that his output was considered to be unsatisfactory. Following a meeting, he received monthly production requests, indicating the number of points which he was expected to achieve each month, in respect of the period from 1 April 2011 to October 2011. Those requests stated that: ‘[t]he purpose of this production request is to set individual targets on a monthly basis. The request is a result of the fact that [the applicant’s] performance over the last [few] years has not been satisfactory.’

13 On 9 June 2011, the reporting officer sent the applicant an email containing the following sentence: ‘[Mr B.] told me to congratulate you for having changed the path towards the good direction (his words).’

14 On 2 September 2011, the reporting officer sent an email stating, inter alia: ‘You have been the top producer (honestly!) of the service the last 3-4 months.’

15 On 20 October 2011, the applicant was invited to the formal appraisal interview. During that interview, Ms A, his reporting officer, stated that she was satisfied with the applicant’s work and informed him that she would propose level 5 as a general assessment.

16 On 25 October 2011, pursuant to Article 17 and 17a of the Staff Regulations, the applicant informed OHIM of his intention to publish an article by sending an email to this effect to the President of OHIM and to Ms A attaching that article, entitled ‘Ensuring Greater Legal Certainty in OHIM Decision-Taking by Abandoning Legal Formalism’. That article was published in The Journal of Intellectual Property Law & Practice.

17 According to the application: ‘[t]he article is a critical analysis of OHIM’s legal practice in relation, in particular, to the taking of opposition decisions. OHIM’s legal practice in this regard was largely established while Mr [X] … was President of OHIM between 2000 and 2010. The article also critically examines the human resource policies executed during Mr [Y’s] tenure as President, some of which have since been ruled unlawful by the Civil Service Tribunal … Mr [B] was [h]ead of Human Resources at the time these policies were implemented, and is now [h]ead of [the] “Operations” [department].’

18 On 15 November 2011, the applicant received an email from Ms A which contained the following sentence: ‘I would also like to talk with you about your article due to feedback from [Mr B].’

19 Following that email, the applicant met, on 17 November 2011, with Ms A, then with Mr B.

20 On 9 January 2012, the applicant received his appraisal report in respect of the period from 1 October 2010 to 30 September 2011 (‘the contested appraisal report’).

21 The contested appraisal report starts with the ‘Objectives’ section. Those objectives concern the quantity of decisions, the observance of time-limits, the quality of decisions (individual objectives), teamwork within OHIM (an objective common to all staff) and ‘quality, simplification and excellence’ (an objective common to the staff in the ‘Operations’ department). One column in the section is dedicated to the reporting officer’s comments on the objectives. The second section, entitled ‘Competencies’, covers the following competencies: ‘[a]nalysis, problem solving and judgment’, ‘[c]ommunication’, ‘[m]anagement and leadership’, ‘[p]rofessional knowledge and development’, ‘[q]uality and results orientation’, ‘[s]elf management’ and ‘[w]orking with others and interpersonal relations’. In respect of each of those competencies, the appraisal report mentions the ‘[r]equired level’, which corresponds to the level which OHIM expects of the holder of the post and the ‘[l]evel’ which is that actually attained by the holder according to the reporting officer’s appraisal. In that regard, the reporting officer has a choice of five levels:

One column in the section is dedicated to the reporting officer’s comments on the objectives.

22 The following part of the appraisal report is headed ‘Conduct in the service - [Reporting Officer’s] comments’. The contested appraisal report also contains, inter alia, the sections ‘General assessment’, ‘Reporting officer’s assessment’ and ‘Countersigning [o]fficer’s comments’.

23 In respect of the general assessment, the reporting officer has a choice of 7 levels. Levels 5 and 6 correspond to the following descriptions:

‘[5] The efficiency, the abilities and the aspects of conduct appraised are acceptable despite some weak points.

[6] The efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied. Improvements are needed.’

24 Under the objective concerning the quantity of decisions, the comments of the reporting officer in the contested appraisal report are worded as follows:

‘Volume: Adjusted target: 105.4p[oints] (50% … work [in the “Quality” service] for 2 [months]). [The applicant] did 87.6 p[oints] which corresponds to 83% of [the] target.

Timeliness: 95.62% on time, which is above [the] service/dep[artment] average (94%).

Quality: [the applicant] can improve the quality of his decisions vis-a-vis [OHIM] practice and should concentrate on this issue during the next appraisal period.’

25 In the ‘Competencies’ section, it is stated in respect of the ‘[q]uality and results orientation’ competency that:

‘Following feedback from [the applicant’s] co-signers his first drafts were not always aligned with the [OHIM Quality Management System M]anual. His output has room for improvement. He did 87.6 points which is 17% below the expected target.’

‘[The applicant] needs to be more committed to the work and to his own development. He needs to find a good working method in order to have a higher output and must avoid working in spurts and achieve a more even pace.’

27 In respect of the ‘[w]orking with others and interpersonal relations’ competency:

‘… [The applicant] tends to leave a glut of work to the last week of the month which meant that a lot of strain was put on his co-signers who were asked to sign a very large amount of decisions at a time when they too had targets to consider.’

28 In the ‘Conduct in the service - [Reporting Officer’s] comments’ section, the contested appraisal report contains the following comments:

‘Being a native English speaker, [the applicant] was co-signing and proofreading the opposition decisions of his colleagues. This part of his work was much appreciated. In March 2011 [the applicant’s] underperformance was raised by his managers. It was only from that moment on that [the applicant] started to perform as expected.’

29 In the ‘General assessment’ section, the reporting officer selected the option corresponding to level 6, which states as follows:

‘The efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied. Improvements are needed.’

30 In the ‘Reporting officer’s assessment’ section, the contested appraisal report contains the following assessment:

‘[The applicant] undoubtedly put in a lot of effort in the last half of the year to reach his target. However, the positive aspect of this achievement must be weighed against the fact that [the applicant’s] very low performance earlier in the year meant that he had left himself a lot to catch up on. This low performance was noted by [his line managers] who warned [the applicant] that he was underperforming and special arrangements, reserved to underperforming examiners, were put in place in April. From then on [the applicant] performed according to expectations. Since the standard of the department establishes that [it may be considered that a [jobholder] “does not correspond to the level” where he has met only 80% of his objectives] and since it is clear for the [reporting officer] that the global performance of [the applicant] during the appraisal period [cannot] be evaluated as satisfactory, the first level of unsatisfactory assessment [was] selected.’

6. The conciliation meeting, the action before the Joint Evaluation and Promotion Committee and the complaint

31 Having received the contested appraisal report, the applicant requested a conciliation meeting with the reporting officer and the countersigning officer. The applicant was requested by his head of department and countersigning officer to provide a brief overview of the questions which he wished to address. As a result of that request, the applicant sent his reporting officer and countersigning officer the following email on 25 January 2012:

‘In short, I had an appraisal meeting in October with my [l]ine [m]anager which started with the words “… I have nothing negative to say, it is all positive”. The interview was indeed positive. Three months later I received an [a]ppraisal [r]eport which marked my performance as needing improvement. A number of negative comments were contained in the [r]eport, including the allegation that the quality of my decisions did not meet expectations - an allegation I challenge. I would like to know how we got from the one situation (the interview) to the other (the [r]eport). My [l]ine [m]anager informs me that she initially wrote a more positive report in which I was adjudged to have met the level required, but that it was changed at the insistence of my [h]ead of [d]epartment. I would like the negative comments removed from my report since they are incorrect and for my performance to be marked as meeting requirements.’

33 On 13 February 2012, the applicant brought an action before the Joint Evaluation and Promotion Committee (‘the JEPC’) concerning the general assessment contained in the contested appraisal report. On 20 February 2012, the reporting officer submitted observations. On 22 February 2012, the applicant sent his response to the reporting officer’s comments to the JEPC.

34 By letter of 29 March 2012, the JEPC requested additional information from the reporting officer, in particular ‘details regarding production (quantity and quality wise), especially how staff with comparable production [to the applicant] were assessed …’. The reporting officer replied on 16 April 2012. On 19 April 2012, the applicant replied to the reporting officer’s response.

35 On 15 May 2012, the JEPC issued its unanimous findings on the applicant’s action in the following terms:

‘In accordance with the information given by the [r]eporting [o]fficer, the jobholder was expected to co-sign double the decisions he was expected to [draft]. Since the jobholder [drafted] 65 decisions, which corresponds to 83% of the decisions he was expected to [draft], he should have co-signed 156 decisions. Hence he fulfilled this target. Furthermore, the jobholder [stated] that all these decisions as well as numerous other decisions were [proofread] by him. Regarding timeliness, the jobholder performed slightly above the target. Considering all the facts, it must be held that the performance of the jobholder is - as far it concerns the quantity of decisions taken - below the target, but not as low as to qualify his output as “[does] not correspond to the level required”. In accordance with the information given by the [r]eporting [o]fficer, such assessment is only given if the performance [is] 20% [or more] below target. In all other areas, the jobholder performed in accordance with the targets or above.

Even after being invited to do so, the [r]eporting [o]fficer (“Ms [A]”) could not specify at all why the quality of decisions was below the target set. …

The general assessment has to take into consideration all competencies and objectives. Consequently, the JEPC finds the [action] well founded and recommends to raise the [general] assessment to “acceptable despite some weak points”.’

36 On 22 May 2012, the reporting officer and the countersigning officer sent the applicant a note informing him that they did not intend to raise his general assessment. The note also stated: ‘The reporting officer … has decided to follow the JEPC recommendations as regards the quality. Therefore all eventual criticism on the quality of [the applicant’s] work has been removed from the report … .’

37 On 21 August 2012, the applicant filed a complaint against the contested appraisal report. On 17 December 2012, the applicant received the decision of 12 December 2012 rejecting the complaint.

- order OHIM to pay him appropriate damages, the amount of which, of at least EUR 500, is left to the Tribunal’s discretion, in order to compensate him for the non-material harm caused by the contested appraisal report;

40 In support of his action, the applicant relies on nine pleas in law, alleging, first, infringement of the principle of sound administration, secondly, infringement of essential procedural requirements, thirdly, several manifest errors of assessment, fourthly, infringement of the general principles laid down in the Reporting Officer’s Practical Dossier in force at OHIM, fifthly, infringement of the duty to have regard for the welfare of officials, sixthly, infringement of the principle of protection of legitimate expectations, seventhly, infringement of the principle of equal treatment, eighthly, infringement of the obligation to state reasons, and ninthly, misuse of powers.

The first three pleas in law, alleging infringement of the principle of sound administration, infringement of essential procedural requirements and several manifest errors of assessment

41 By these three pleas, the applicant submits that the contested appraisal report does not comply with the principles of a proper appraisal procedure. Those three pleas, considered overall, can be broken down into two parts. The first part concerns the complaints relating to the content of the contested appraisal report. The second relates to alleged breaches of procedure vitiating the appraisal procedure.

42 First of all, according to the applicant, there is considerable discrepancy between the point of view expressed by Ms A at the appraisal interview on 20 October 2011 and in the emails which she sent him on 9 June and 2 September 2011, on the one hand, and that expressed in the contested appraisal report, on the other.

43 Next, the applicant observes that the reporting officer and the countersigning officer tried to base their negative assessment on the poor quality of the decisions drafted by him. That argument having been abandoned as a result of the JEPC’s opinion, they relied on the applicant’s conduct in the service.

44 Subsequently, the applicant alleges that the assessors were inconsistent in that they assessed him negatively on the basis of output judged unsatisfactory during the first half of the appraisal period and then found that that output improved only following a warning on their part instead of making an overall assessment of his output throughout that period.

45 Lastly, the applicant also submits that OHIM introduced a new assessment criterion retrospectively by arguing that he produced a disproportionately high number of decisions at the end of the month, thereby burdening his co-signatories with an excessive workload. Neither he nor any other member of staff was informed before or during the appraisal period that, in addition to the annual objectives, decisions had to be drawn up before a certain date each month.

46 So far as concerns the quantity of decisions drafted and co-signed, the applicant observes that, although he drafted 65 decisions during the appraisal period, which corresponds to 83% of his objectives, the level obtained by him as regards quantity in the contested appraisal report is reserved to drafters whose production is 20% or more below the productivity objectives. Furthermore, the applicant submits that, although, in that period, he co-signed 156 decisions, thereby proofreading more than the required volume of decisions, Ms A ignored this fact in the general assessment. The applicant adds that he complied with the time-limits in respect of decisions for which he was responsible in 95.62% of cases, a percentage which, as regards the 2011 appraisal procedure, is higher than the departmental average of 94%.

47 As regards the requirement for jobholders to proactively pursue their own professional development and to update their knowledge, the applicant observes that his article published in The Journal of Intellectual Property Law & Practice deserved to be mentioned in the contested appraisal report, especially since it was favourably received in the relevant sectors. Instead, the appraisal contained a reprimand, in that he was asked to be more committed to his work.

48 The applicant also submits that he has always demonstrated commitment to his work and to his personal development, that he systematically achieved the objectives assigned to him between March and October 2011 and that, therefore, it is highly surprising that the authors of the contested appraisal report did not declare themselves to be satisfied with his positive reaction to the warning given to him half way through the appraisal period.

49 Concerning the competencies ‘[q]uality and results orientation’ and ‘[s]elf management’, in respect of which he obtained the assessment expressed by the level ‘K’, that is to say, the lowest level, the applicant disputes those assessments, since they contradict the reporting officer’s assessment in respect of the competencies ‘[a]nalysis, problem solving and judgment’, ‘[c]ommunication’, ‘[p]rofessional knowledge and development’ and ‘[w]orking with others and interpersonal relations’ and the fact that he systematically achieved the objectives assigned to him between March and October 2011.

50 The applicant concludes that by achieving 83% of his productivity objectives, by exceeding what was expected of him in terms of co-signing and proofreading, by performing better than average on timeliness and by being at least within the average so far as concerns the quality of decisions drafted by him, he was eligible to receive at least level 5 as a general assessment, according to the objectives and criteria established at the beginning of the appraisal period. In order to justify its lower general assessment, OHIM retrospectively introduced new assessment criteria, such as the requirement that decisions had to be notified within the same month and distributed more or less equally over the appraisal period.

52 As regards the applicant’s argument that there is a discrepancy between the point of view expressed by the reporting officer at the appraisal interview of 20 October 2011 and in the emails which she sent the applicant on 9 June and 2 September 2011, on one hand, and that expressed in the contested appraisal report, on the other, it must be observed that in his action before the JEPC, on 13 February 2012, the applicant acknowledged that, at the appraisal interview of 20 October 2011, the subject of his unsatisfactory productivity during the first half of the appraisal period had been discussed. Consequently, the applicant cannot criticise the contested appraisal report for referring to that unsatisfactory situation. So far as concerns the emails of 9 June and 2 September 2011, it is sufficient to observe that they concern only the improvement in the applicant’s productivity as a result of the mid-term review and the monitoring measures put in place by his line managers.

53 In any event, even if there were a discrepancy between the point of view expressed by the reporting officer and the contested appraisal report, that fact is not such as to affect the lawfulness of the contested appraisal report in so far as the applicant does not deny that he was able to comment on the point of view expressed by the reporting officer in the contested appraisal report and in so far as, at the time of the appraisal interview, the contested appraisal report had not yet been drawn up.

54 The applicant’s argument that, as a result of the JEPC’s opinion, the reporting officer and countersigning officer raised the objection of his conduct in the service must be rejected. It is common ground that, as indicated in the ‘Conduct in the service - [Reporting Officer’s] comments’ section, the issue of the applicant’s unsatisfactory output had already been raised by the applicant’s line managers in March 2011 and that it had been discussed at the appraisal interview.

55 The applicant’s argument that the reporting officer and the countersigning officer did not make an overall assessment of his output with regard to the whole of the appraisal period must be rejected. By also taking account, in the applicant’s general assessment, of the output held to be unsatisfactory in the first half of the appraisal period, the reporting officer acted in accordance with Article 1 of the GIP, according to which the appraisal report concerns the whole year.

56 The same is true of the applicant’s argument that the contested appraisal report is contradictory and that, since he had improved his low output after receiving a warning, it was appropriate to take this into account in his favour, rather than to assess him negatively on the ground that he improved his performance only after having been requested to do so by his line managers. That argument is tantamount to denying the relevance for the applicant’s general assessment of two important facts, namely, first, that during the first half of the appraisal period his productivity did not correspond to the objectives set and was therefore not acceptable and, secondly, that he improved his output only after a warning from his line managers and the putting in place of monitoring measures by those managers half way through the appraisal period. In that regard, it must be observed that the fact that the applicant increased his productivity considerably in the second half of the appraisal period showed that he was perfectly capable of achieving the objectives set. Therefore, the applicant cannot criticise OHIM for not having interpreted the change in his output in his favour.

57 In this connection, it must also be observed that it is obvious from the ‘Reporting officer’s assessment’ section that the general assessment of the applicant is the result of weighing his output deemed unsatisfactory in the first half of the appraisal period against his output deemed markedly better in the second half of that period. According to case-law, the improvement of the conduct in the service of the official under appraisal is indeed an objective which the appraisal report aims to meet (see Commission v De Bry, C-344/05 P, EU:C:2006:710, paragraph 44; Ntouvas v ECDC, F-107/11, EU:F:2012:182, paragraph 68). It follows that OHIM did not commit any manifest error of assessment by concluding from that weighing up that, over the whole appraisal period, the applicant’s efficiency and abilities and the aspects of his conduct appraised were not at an acceptable level and that, therefore, he merited only level 6 as a general assessment.

58 The applicant’s argument that OHIM, by finding that he produced far too many decisions at the end of the month, unlawfully introduced a new appraisal criterion must also be rejected. As the applicant himself conceded, it is apparent from Article 132(2) of Regulation No 207/2009 that each opposition decision must be signed by three members of the Opposition Division. That obligation, of which the applicant - who had considerable experience within OHIM - was aware, implies that, in order not to overburden the other signatories, the drafter as well as the co-signer must produce decisions at regular intervals. It follows that, far from being a new criterion introduced retrospectively, the requirement to produce decisions at regular intervals is essential to teamwork within the Opposition Divisions.

59 The applicant’s argument that the reporting officer ignored his activity as a co-signer cannot be upheld. It is clear from the ‘Conduct in the service’ section that that part of the applicant’s work was much appreciated and that, consequently, the reporting officer took account of that positive aspect in his general assessment and in the weighing up of his conduct in the service over both halves of the appraisal period. So far as concerns the applicant’s observations on the timeliness of his decisions, it is sufficient to note that, in the contested appraisal report, the reporting officer mentioned that the applicant observed the time-limits in 95.62% of cases, which was above the departmental average of 94%. Therefore, in so far as the applicant submits that that circumstance was not taken into account in the general assessment, that claim is not borne out by the facts.

60 In any event, the fact that the applicant exceeded the objective relating to timeliness cannot change the fact that, in the first half of the appraisal period, his productivity did not meet the objectives set. An official or staff member cannot derive an argument from his own actions in order to exempt himself from his professional obligations (see Bogusz v Frontex, F-5/12, EU:F:2013:75, paragraph 57). Consequently, exceeding his objectives as regards timeliness in the second half of the appraisal period did not relieve the applicant from having to observe that objective in the first half of the appraisal period.

61 The applicant’s argument that OHIM was wrong not to have referred in the contested appraisal report to his article published subsequently in The Journal of Intellectual Property Law & Practice, which had already been made available to OHIM, must also be rejected. As OHIM correctly pointed out, the writing of articles and academic papers is not a priority activity in relation to the applicant’s main tasks. Therefore, even if the contested appraisal report had referred to that article, that fact could not have changed the general assessment according to which, over the whole appraisal period, the applicant’s efficiency and abilities and the aspects of his conduct appraised did not correspond to the level which OHIM was entitled to expect of him. The applicant cannot therefore complain on the ground that the contested appraisal report suggested he should be more committed to his work.

62 The applicant challenges the fact that OHIM awarded him level ‘K’, that is to say, the lowest level, in respect of the competencies ‘[q]uality and results orientation’ and ‘[s]elf management’. That argument must be rejected.

63 It is not disputed that one of the key elements of level ‘K’ is that the jobholder ‘might require help to perform’, whereas the condition for obtaining level ‘P’ is that ‘the jobholder can usually perform the competency independently’ and for level ‘M’ that ‘the jobholder can perform the actions associated with this skill without assistance’. It is common ground that the applicant, having obtained only 87.6 points in respect of his production of decisions, was 17% below the objective fixed, which is why his line managers had to intervene part way through the appraisal period and to monitor him for six months to ensure that he significantly improve his productivity. It follows that, in the applicant’s case, the conditions for obtaining levels ‘P’ (‘…independently’) or ‘M’ (‘…without assistance’) were not satisfied and therefore, in attributing to him the level ‘K’ in respect of the competencies ‘[q]uality and results orientation’ and ‘[s]elf management’, OHIM did not commit any manifest error of assessment.

64 The applicant’s argument that he always demonstrated commitment to his work and personal development and that he systematically achieved the objectives that had been assigned to him between March and October 2011 must be rejected. In fact, in the first half of the appraisal period, the applicant did not achieve the objectives assigned to him and, therefore he did not demonstrate adequate commitment to his work in that period. As was observed in paragraph 56 above, the applicant’s reasoning is tantamount to denying the relevance, for the purposes of his general assessment, of the facts that, in the first half of the appraisal period, his productivity in no way met the objectives fixed and that he increased his output only after the warning from his line managers and while he was being monitored.

65 Concerning the alleged contradiction between the levels awarded in respect of the various competencies, as it was observed at paragraph 63 above, the award of the level ‘K’ implies that the jobholder might require help to perform his tasks. It is not disputed that, in the appraisal period, the applicant required the help of his line managers, who had to intervene and put in place monitoring measures to ensure he performed his duties properly.

66 The applicant also claims that, in awarding level 6 as a general assessment, OHIM infringed its own internal rules since, as a rule, that level may be awarded only to persons who have achieved less than 80% of the objective set, whereas he had achieved 83% of his objective.

67 That argument cannot be upheld either. By relying on that argument, the applicant fails to have regard to the fact that his low output in the first half of the appraisal period was only one of the factors which led the reporting officer to award him level 6, as Ms A explained in the note of 22 May 2012 which she and the countersigning officer sent to the applicant after the JEPC delivered its opinion.

68 As regards the applicant’s argument that, taking account of his output, timeliness and the quality of his work, he was entitled to be awarded level 5 as a general assessment, it must be observed that the award of level 6 expresses the judgment of the reporting officer that ‘the efficiency, the abilities and the aspects of conduct appraised …[of the jobholder] do not correspond to the level required’ and that ‘[i]mprovements are needed’. By contrast, level 5 implies that ‘[t]he efficiency, the abilities and the aspects of conduct appraised are acceptable despite some weak points’.

69 The applicant does not contest OHIM’s finding that, in the first half of the appraisal period, his efficiency and abilities and the aspects of his conduct appraised were not acceptable in so far as he had clearly not achieved the objectives set, with the result that, over the whole appraisal period, he did not meet the quantitative objective of 105.4 points. The applicant does not dispute either that it was not until he had received a warning from his line managers and monitoring measures had been put in place that he improved his output. Therefore, the applicant may not claim that his failure to perform adequately in the first half of the appraisal period can be described as ‘acceptable despite some weak points’. In those circumstances, having regard, on one hand, to OHIM’s broad discretion in appraising its staff and, on the other hand, to the applicant’s high grade and his proven professional experience, OHIM did not commit any manifest error of assessment in awarding him level 6 as a general assessment.

70 The applicant submits that the appraisal procedure is vitiated by six infringements of essential procedural requirements.

72 First, the applicant submits that his right to be heard was infringed since the general assessment in the contested appraisal report bears no relation to what was said at the appraisal interview.

73 In the present case, contrary to the applicant’s claims, the appraisal interview also concerned his unsatisfactory performance in the first half of the appraisal period. Although, admittedly, at that interview, the reporting officer informed him of her intention at that stage to award level 5 as a general assessment, the fact remains that, under Article 12(5) of the GIP, the appraisal interview ends with the communication by the reporting officer to the person under appraisal of a mere proposal in respect of the general assessment. Since the general assessment is not definitive at that time, the applicant therefore may not complain that the reporting officer changed her assessment in relation to her proposal made at the assessment interview. Consequently, the first alleged breach of procedure must be rejected.

74 Secondly, the applicant submits that the retrospective introduction of a new criterion concerning the monthly distribution of the production of decisions is unlawful.

75 So far as this second alleged breach of procedure is concerned, it is sufficient to refer to the grounds set out in paragraph 58 above in order to reject it.

76 Thirdly, the applicant submits that the reporting officer and the countersigning officer did not provide the JEPC with the comparative information on productivity requested or with any evidence proving the poor quality of the applicant’s work.

77 That third breach of procedure relied on by the applicant is ineffective. It is not disputed that the JEPC recommended that the reporting officer award the applicant level 5, which corresponds to the claims of the applicant referred to in paragraph 50 above. Therefore, even had the reporting officer failed to answer the JEPC’s requests for further information - which OHIM denies - that fact does not affect the contested appraisal report, since the reporting officer decided not to follow the JEPC’s recommendation.

78 Fourthly, the applicant submits that the reporting officer included comments in the contested appraisal report based on feedback from the applicant’s co-signers, even though only one of those co-signers was consulted.

79 So far as concerns that fourth alleged breach of procedure, it is sufficient to observe that it is not disputed by the applicant that 29 out of the 65 decisions which he drafted were forwarded to his co-signers in the last days of the months concerned.

80 Fifthly, the applicant submits that the reporting officer and countersigning officer substantially ignored the recommendations of the JEPC without providing any appropriate justification in this regard.

81 In respect of this fifth alleged breach of procedure, under Article 15(8) of the GIP, a reporting officer who decides not to follow the recommendations of the JEPC is required to justify his decision in writing. The reporting officer satisfied this obligation by sending the applicant a note on 22 May 2012, co-signed by the countersigning officer, setting out the reasons why she had not followed the JEPC’s recommendations, with the exception of that concerning the quality of the applicant’s work.

82 Sixthly, the applicant submits that the reporting officer and the countersigning officer decided to answer the JEPC jointly, in breach of Article 15 of the GIP. According to the applicant, it is possible that the countersigning officer opted for such an approach in order to ensure that it did not occur to the reporting officer to state that the applicant’s performance merited a higher level, as she had previously indicated to him.

83 That sixth alleged procedural flaw must be rejected. It is obvious from Article 15(8) of the GIP that the decision not to follow the JEPC’s recommendations must be taken by the reporting officer. The note of 22 May 2012 addressed to the applicant was signed by the reporting officer and co-signed by the countersigning officer. It is sufficient to note that the applicant has not adduced any evidence in support of his claim that the countersigning officer imposed his view on the reporting officer.

84 It follows from all the foregoing that the first three pleas must be rejected.

The fourth plea, alleging infringement of the general principles in the Reporting Officer’s Practical Dossier

85 According to the applicant, the contested appraisal report infringes the general principles in the Reporting Officer’s Practical Dossier. According to that dossier, the mid-term review is a mechanism intended to give useful feedback to the persons concerned. The applicant claims that he took proper account of the feedback given in the mid-term review and significantly increased his volume of decisions.

87 It must be stated that the applicant does not state in the application which general principles in the Reporting Officer’s Practical Dossier, annexed to the application, were infringed by the reporting officer.

88 For a plea in law to be admissible, the basic legal and factual particulars on which it is based must be indicated coherently and intelligibly in the application itself, even if only in summary form. In this respect, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential submissions in law which must appear in the application. It is not for the Tribunal to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see, to that effect, Honeywell v Commission, T-209/01, EU:T:2005:455, paragraphs 56 and 57, and Angelidis v Parliament, T-424/04, EU:T:2006:376, paragraphs 39 to 41).

The fifth plea, alleging infringement of the duty to have regard for the welfare of officials

90 By his fifth plea, the applicant submits that OHIM infringed the duty to have regard for the welfare of officials in so far as not all of the applicant’s co-signing colleagues were heard and in so far as the countersigning officer was not replaced during the appraisal period.

92 Since the fifth plea was merely stated and was not developed in any way in the application, it must be declared inadmissible pursuant to Article 35(1)(e) of the Rules of Procedure.

The sixth plea, alleging infringement of the principle of protection of legitimate expectations

93 The applicant claims that he was entitled to expect the reporting officer to recognise the corrective measures which he had taken in consequence of the warning of the reporting officer and countersigning officer in the mid-term review and to draw up a report fairly reflecting his work throughout the appraisal period. The general assessment that ‘[t]he efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied’ is not only incorrect but also perverse, since he had made the necessary improvements and had demonstrated this over six months.

95 It is settled case-law that the principle of the protection of legitimate expectations is one of the fundamental principles of the European Union (Dürbeck, 112/80, EU:C:1981:94, paragraph 48). Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances, from authorised and reliable sources, must have been provided to the person concerned by the administration (judgment in Mellett v Court of Justice, T-66/96 and T-221/97, EU:T:1998:187, paragraph 104). Secondly, those assurances must be such as to lead to legitimate expectations on the part of the person to whom they are addressed (Latham v Commission, T-3/92, EU:T:1994:15, paragraph 58; Galtieri v Parliament, T-235/94, EU:T:1996:22, paragraph 63; and Maccaferri v Commission, T-56/96, EU:T:1998:33, paragraphs 54 and 55). Thirdly, the assurances given must comply with the applicable rules (see, to that effect, Vlachou v Court of Auditors, 162/84, EU:C:1986:56, paragraph 6).

96 The applicant has not identified the alleged precise assurances provided by OHIM which led to a legitimate expectation on his part that he would obtain level 5 as a general assessment. On the contrary, as observed at paragraph 73 above, the reporting officer’s intention, expressed at the appraisal interview of 20 October 2011, to award him level 5 as a general assessment was only a projected assessment communicated by way of an indication. Therefore, the applicant cannot legitimately claim that the reporting officer’s intention to award him level 5 as a general assessment constituted a precise, unconditional and consistent notification that he would be assessed at this level.

98 The applicant submits that he has been discriminated against on the ground that he received a general assessment normally reserved to officials whose productivity is 20% lower than the objectives set, even though his productivity was not more than 17% lower than those objectives. In that connection, the applicant points out that the reporting officer did not provide the JEPC with the details concerning his productivity which the JEPC asked her for. The fact that the new criterion concerning the monthly distribution of decisions drafted was introduced retrospectively is also discriminatory, according to the applicant.

100 So far as concerns the applicant’s argument that he received a general assessment normally reserved to officials whose productivity is 20% lower than the objectives set, even though his productivity was not more than 17% lower than the objectives set, it can be rejected by reference to the grounds set out in paragraph 67 above. As regards the argument concerning the retrospective introduction of the criterion that decisions should be produced at regular intervals, it can be rejected by reference to the grounds set out at paragraph 58 above. Accordingly, the seventh plea must be rejected.

101 The applicant claims: first, that the reporting officer and the countersigning officer did not satisfy their obligation to state special reasons in order to justify their refusal to follow the recommendations of the JEPC; secondly, that the two passages, one entirely favourable, the other merely recounting a fact, in the ‘Conduct in the service’ section of the contested appraisal report, relied on by the reporting officer and countersigning officer in order to justify his poor score, do not constitute a sufficient statement of reasons and, thirdly, that the general assessment of his performance is inconsistent with the detailed comments put forward to justify the poor score awarded to him.

103 As regards the alleged failure to state reasons in the reporting officer’s decision, communicated by note of 22 May 2012, not to follow all the JEPC’s recommendations, it must be observed that the reasons why the reporting officer wished to confirm the contested appraisal report and to depart from the JEPC’s recommendations, with the exception of that concerning the quality of the applicant’s work, are clearly shown in that note.

104 The applicant’s argument that, in the note of 22 May 2012, the reporting officer described the fact that he reacted positively to the warning given by his line managers in the mid-term review as ‘a serious failure in the conduct in the service’ is based on a clear misreading of that note. It is clear from the criticised passage of the note at issue that, by writing that ‘this was considered a serious failure in the conduct in the service’, the reporting officer was referring to the fact that the applicant increased his productivity only after receiving a serious warning from his line managers and after monitoring measures had been put in place.

106 In his ninth plea, the applicant claims that, by the contested appraisal report, OHIM wished to punish him for his audacity in publishing an article criticising several aspects of the recruitment policy at the time when the countersigning officer directed the Human Resources department and the approach adopted in opposition cases under the countersigning officer. In this connection, he submits, first, that there is no event between the 20 October 2011 and 9 January 2012 that might explain the discrepancy between the appraisal interview and the contested appraisal report. Secondly, the applicant submits that the countersigning officer was displeased by his article, which is apparent from the email which the reporting officer sent the applicant on 15 November 2011 and the interview which he had with the countersigning officer, as a result of that email, on 17 November 2011. Thirdly, the reporting officer and the countersigning officer did not dispute those facts in the action before the JEPC.

108 It is settled case-law that there is no misuse of powers, of which abuse of process is merely one form, unless there is objective, relevant and consistent evidence which makes it possible to establish that the contested act pursued an aim other than that ascribed to it by the applicable provisions of the Staff Regulations (see Skareby v Commission, F-46/06, EU:F:2008:26, paragraph 156).

109 In that respect, it is not sufficient for the applicant to refer to certain facts in support of his claims; he must also adduce evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability, failing which the material accuracy of OHIM’s claims cannot be called into question (Skareby v Commission, EU:F:2008:26, paragraph 157).

110 So far as concerns the alleged discrepancy between the appraisal meeting and the contested appraisal report, it is sufficient to refer to paragraphs 52 and 53 above.

111 The claim that the countersigning officer was displeased by the applicant’s article, even if it were proved, is not, given the complete absence of other evidence which is sufficiently specific, objective and consistent, such as to warrant the claim that the countersigning officer punished the applicant by means of the contested appraisal report for publishing that article. Lastly, the fact that the reporting officer and the countersigning officer did not adopt a position on the applicant’s claims in the action before the JEPC in no way proves that those claims are well founded.

112 It is therefore appropriate to hold that the plea alleging misuse of powers must be rejected as unfounded.

113 Consequently, in the light of all the foregoing, the claims for annulment must be rejected.

114 The applicant requests that OHIM be ordered to pay him damages of an appropriate amount left to the Tribunal’s discretion, which should be at least EUR 500, in compensation for the non-material harm allegedly suffered by him.

116 In accordance with settled case-law concerning civil service proceedings, where an application for damages is closely linked with an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for damages (Martínez Valls v Parliament, T-214/02, EU:T:2003:254, paragraph 43; Fries Guggenheim v Cedefop, F-47/09, EU:F:2010:36, paragraph 119; and Časta v Commission, F-40/09, EU:F:2010:74, paragraph 94).

119 It follows from all the foregoing that the action must be dismissed in its entirety.

120 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, 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 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.

121 It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its claims OHIM has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant must bear his own costs and is ordered to pay the costs incurred by OHIM.

2. Declares that Mr Morgan is to bear his own costs and orders him to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs).

Symbol of the level	Level	Description
K	Basic [level]	The jobholder demonstrates a common knowledge or an understanding of basic techniques, concepts and principles linked to this competency. S/he might require help to perform.
P	Proficient [level]	The jobholder is able to successfully complete tasks related to this competency [criterion] as requested. Help from an expert may be required from time to time, but the jobholder can usually perform the competency independently.
M	Master level	The jobholder can perform the actions associated with this skill without assistance. S/he is recognised within the immediate organization as “a person to ask” when difficult questions arise regarding this competency.
E	Expert level	The jobholder is known as an expert in this area. S/he can provide guidance, trouble-shoot and answer questions related to this area of expertise and the field where the competency is used. S/he is also able to review concepts and design changes.
0	None	The jobholder is currently in a learning phase for acquiring this competency. …

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	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) >> Morgan v OHIM (Judgment) [2014] EUECJ F-26/13 (08 July 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/F2613.html Cite as: ECLI:EU:F:2014:180, EU:F:2014:180, [2014] EUECJ F-26/13

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