CW v Parliament (Judgment) [2015] EUECJ F-41/14 (26 March 2015)

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(Civil service — Officials — Staff report — Manifest errors of assessment — Misuse of powers — Psychological harassment — Decision to award one merit point)

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

CW, an official of the European Parliament, residing in Brussels (Belgium), represented by C. Bernard-Glanz, lawyer,

European Parliament, represented by M. Dean and J. Steele, acting as Agents,

composed of R. Barents, President, E. Perillo and J. Svenningsen (Rapporteur), Judges,

having regard to the written procedure and further to the hearing on 11 December 2014,

1 By application received at the Registry of the Civil Service Tribunal on 6 May 2014, the applicant brought the present action seeking, in essence, the annulment of her staff report for 2012 as finalised by the decision of the appointing authority of the European Parliament of 24 May 2013 (‘the 2012 staff report’) and the annulment of the decision of the Director-General of the Parliament’s Directorate-General (DG) for Interpretation and Conferences of 24 June 2013 awarding her one merit point for the year 2012.

2 The first paragraph of Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), in the version applicable to the present dispute, provides:

‘The ability, efficiency and conduct in the service of each official shall be the subject of a periodical report made at least once every two years as provided for by each institution …’

‘If an official wishes to spend leave elsewhere than at the place where he is employed he shall obtain prior permission from the appointing authority.’

4 On 6 October 2003, the applicant was recruited as a member of the Parliament’s auxiliary staff and was assigned to the Slovak Interpretation Unit in the Directorate for Interpretation of the DG for Infrastructures and Interpretation, now the DG for Interpretation and Conferences. From 8 October 2004, she was employed as a temporary staff member in that Unit.

5 On 1 October 2008, the applicant was appointed as a probationary official of the Parliament and was assigned to the Czech Interpretation Unit (‘the Unit’). She was established in her post on 1 July 2009.

6 From 2008 to 2010, the applicant and Ms H. were Unit colleagues. When the post of Head of Unit became available, both women submitted applications. At the end of the selection procedure, the applicant’s application was rejected in favour of the application submitted by Ms H. (‘the Head of Unit’), who was appointed Head of Unit on 17 May 2010.

7 At the beginning of 2013, the applicant’s draft staff report for 2012 was drawn up by the Head of Unit in her capacity as first reporting officer. On 14 February 2013, the applicant met with the first reporting officer, who validated the draft version of the 2012 staff report that same day. On 25 February 2013, the Director of the Directorate for Interpretation (‘the Director’) approved that report in his capacity as final reporting officer.

8 On 20 March 2013, the applicant signed the version of her 2012 staff report that had been drawn up by the first reporting officer and countersigned by the final reporting officer, but submitted observations in a separate document. On the same day, the final reporting officer ‘responded’ to the applicant’s observations by writing the following phrase in the version of the 2012 staff report which had recently been signed by the applicant: ‘I have taken notice of your comments.’

9 On 11 April 2013, the applicant approached the body within the Parliament with the power to make decisions on remedies prior to the lodging of a complaint — the Reports Committee — in order to contest the version of the 2012 staff report which had been presented to her, particularly with regard to four specific comments and opinions included in that report (collectively, ‘the contested remarks’).

10 On 15 May 2013, having heard the applicant, the first reporting officer and the final reporting officer, the Reports Committee delivered an opinion, paragraphs 14 and 15 of which are worded as follows:

‘14. Concerning the factual comment [provided, in the “Conduct” section, under the heading] “[C]ompliance with instructions”, the [Reports] Committee notes that it relates to the request, which has not been followed up on, for the [applicant] to make a public apology to her [Head of Unit] as instructed by her Director.

15. The [Reports] Committee is of the view that the [heading] “[C]ompliance with instructions” is meant to cover the performance of professional duties entrusted to an official by his superiors rather than his interpersonal relations with his colleagues. Accordingly, since the request for the applicant to apologise does not concern [her] duties, but her attitude towards her hierarchical superior, it is the opinion of the [Reports] Committee that it would be more appropriate to refer to it in a comment made under a [heading] which concerns her interpersonal relations with her colleagues.’

11 Referring to its findings in paragraphs 14 and 15 of its opinion, the Reports Committee recommended that either the heading ‘Compliance with instructions’ in the ‘Conduct’ section of the staff report which had been brought before it or the factual comment made thereunder be amended. By contrast, it held that ‘there [was] no need to uphold [the applicant’s] other complaints’.

12 By decision of 24 May 2013, notified to the applicant on 18 June 2013, the Secretary-General of the Parliament, in his capacity as appointing authority, stated that he considered that both the heading ‘Compliance with instructions’ in the ‘Conduct’ section of the 2012 staff report submitted to him for approval and the comment made thereunder should remain unchanged, in view of the broad discretion enjoyed by the reporting officers. He concluded that there was no need to amend the 2012 staff report which had been submitted to him for approval and, consequently, that the 2012 staff report was to be considered final from then on.

13 By decision of 24 June 2013, notified to the applicant on 28 June 2013, the Director-General of the DG for Interpretation and Conferences awarded the applicant one merit point (‘the decision to award one merit point’).

14 By letter of 6 September 2013, the applicant lodged a complaint against her 2012 staff report and the decision to award one merit point for the year in question. By decision of 10 January 2014, the President of the Parliament rejected the complaint (‘the decision rejecting the complaint’).

15 According to the applicant, the 2012 staff report was adopted against a background of psychological harassment, to which she had been subjected by the Head of Unit and the Director since 2011. The applicant’s allegations of harassment gave rise to an action against the Parliament, brought before the Tribunal on 19 December 2013 and registered as Case F‑124/13. The factual background to the present case was also touched on in the judgment in CQ v Parliament (F‑12/13, EU:F:2014:214), delivered by the Tribunal on 17 September 2014.

Facts relating to a stay abroad during a period of sick leave — first contested remark

16 The applicant was on sick leave from 20 February 2012 to 28 March 2012. During that period, she left Brussels (Belgium) to visit her family in Prague (Czech Republic) from 2 to 5 March 2012. Having received confirmation from the applicant herself, in an e-mail dated 5 June 2012, that she had indeed made that journey, the Director-General of the DG for Interpretation and Conferences (‘the Director-General’) asked the applicant whether she had sought prior permission to leave Brussels. On 6 June 2012, the applicant made the following statement: ‘The answer to your question is no, I had not obtained a prior permission in the sense of [Article] 60 of the Staff Regulations, because I did not believe I had to ask for it.’ By an e-mail of 7 June 2012, the Director-General informed the applicant that she had failed to comply with the Staff Regulations in that regard.

17 The comment included in the ‘Conduct’ section of the 2012 staff report under the heading ‘Compliance with internal rules’ refers to the facts mentioned above in the following terms: ‘Did not respect [Article 60 of the Staff Regulations] (see e-mail of the Director-General [of] 7 June 2012)’ (‘the first contested remark’).

18 In that regard, in paragraph 13 of its opinion, the Reports Committee considered that the comment cited above related to a ‘formal [infringement which had occurred] in a stressful situation of which the management was [itself] aware’ and that the comment seemed ‘disproportionate in relation to an assessment of a whole year’s service’.

Facts relating to a false declaration of sick leave — second contested remark

19 The comment constituting the second remark contested by the applicant also appears in the ‘Conduct’ section [of the 2012 staff report], under the heading ‘Compliance with internal rules’, and concerns the applicant’s failure to comply with ‘[Article 60 of the Staff Regulations] and [with the] Leave Guide (see e-mail of the Director-General [of] 13 July 2012’ (‘the second contested remark’).

20 On 9 July 2012, the applicant was invited to a job interview at the Parliament which was to take place the following day in Luxembourg (Luxembourg). According to the applicant, since, at that time, she had been working for months under a great deal of psychological pressure, ‘she cared very much about this interview which in her eyes represented a hope of a potential change to her sad and frustrating professional situation[; accordingly, there was] no other option, [in those] circumstances, than taking a day off as … uncertified sick leave’.

21 In an e-mail exchange which took place on 11, 12 and 13 July 2012, the Director-General reminded the applicant, referring to Section 3 of Title I of the guide in force at the Parliament relating to staff leave (‘the Leave Guide’), entitled ‘Applying for annual leave’, that the Leave Guide provided a solution which would have enabled her to comply with the Parliament’s internal rules. In addition, the Director-General reminded the applicant that he had recently drawn her attention to her obligation to request prior authorisation to go abroad during a period of sick leave.

22 In that regard, the Reports Committee considered — again in paragraph 13 of its opinion — that the comment constituting the second contested remark also related to a ‘formal [infringement which had occurred] in a stressful situation of which the management was [itself] aware’ and that, like the first contested remark, the comment seemed ‘disproportionate in relation to an assessment of a whole year’s service’.

Facts relating to a refusal to comply with an order from the Director — third contested remark

23 On 16 September 2011, the Head of Unit informed the Unit staff of the management’s criteria for selecting candidates for an English course, otherwise known as a ‘summer university’ course, which was to be held in Ireland in the summer of 2012. It can be seen from those criteria that the course in ‘EN-passive’ (English as a passive language) was either for ‘new colleagues’ or for ‘colleagues who [had] newly added [English as a passive language]’ to their language combinations.

24 On 22 September 2011, the applicant informed her Head of Unit that she was interested in the summer course mentioned above. In response, the Head of Unit, referring to the candidate selection criteria communicated previously, reminded the applicant that the course was intended for ‘new colleagues or [for] colleagues who [had recently] added [English as a passive, level C language]’ to their language combinations, whereas the applicant had English as an active, level B language and could no longer be regarded as a new colleague.

25 Subsequently, having learned in December 2011 that two colleagues who, like her, had English as an active language had been included in the list of candidates from the Unit for the English summer course in Ireland, the applicant asked the Head of Unit by e-mail of 14 December 2011 to provide her with further clarification on the subject. On 15 December 2011, the Head of Unit replied that the selection criteria remained unchanged and that the colleagues included in the list of candidates from the Unit fully met the criteria set by the Director-General. Being ‘[v]ery surprised by [that] assertion’, given that two of the three colleagues included in that list had not recently added English as a passive language to their skillset and were not, in her opinion, ‘new’ to the team, the applicant, replying by e-mail that same day, sought ‘[a more detailed] explanation’. By e-mail of 16 December 2011, the Head of Unit once again explained that the applicant did not meet the criteria and that she should apply to the Director ‘[i]f [she was] not satisfied’. The applicant, not wishing to ‘bother’ the Director ‘with a non-issue’, once again asked the Head of Unit, in an e-mail sent that same day, to explain her ‘assertion’ that two colleagues — Ms J. and Ms K. — met the selection criteria even though their situation was ‘identical to [her own]’. The Head of Unit did not answer that question. Subsequently, not being able to understand why the Head of Unit had not wished to respond ‘to what was[, in her view,] but a legitimate question’, the applicant once again asked the Head of Unit, by e-mail of 11 January 2012, to specify ‘which criteria set by the Director-General’ were met by her two colleagues who were included in the list of candidates from the Unit. The Head of Unit made no written reply to that last question either.

26 However, at a Unit meeting held two days later, that is, on 13 January 2012, the Head of Unit broached the subject of the summer course in Ireland. On that occasion, according to the applicant, the Head of Unit stated that ‘a person … [had] expressed [concerns as to whether] the [Head of Unit] [had infringed] the criteria [relating to] the 2012 summer [courses]’. In addition, in response to a question from the applicant, the Head of Unit explained the meaning of the adjective ‘new’ in the context of applying the criterion of being ‘a new colleague’, that is to say, being able to establish that an appointment was recent). She emphasised that, while the applicant had entered the service of the Parliament in 2003, Ms J. and Ms K. had not arrived in the Unit until 2009, which was to be regarded as a ‘recent’ arrival.

27 Following that Unit meeting, the Head of Unit sent an e-mail to the Unit staff on 17 January 2012 in order to bring several items of information to their attention. Concerning the summer course in Ireland, the Head of Unit expressed herself in the following terms: ‘[The applicant] stated that I had breached the criteria laid down by the Director-General because her situation was identical to that of [Ms J. and Ms K.]. This is not the case.’

28 According to the applicant, that assertion was clearly defamatory, since she had never claimed anything of the sort. On 18 January 2012, the applicant therefore decided to send an e-mail to all the Unit staff (‘the e-mail of 18 January 2012’) in order to share her point of view with them. According to the Parliament, that e-mail called into question the powers of the Head of Unit in front of the whole Unit; the Head of Unit did not, however, reply to that e-mail as such, but addressed her reply, on 19 January 2012, only to the applicant and to the Director. By e-mail sent the following day to the Head of Unit and the Director, the applicant wrote the following reply: ‘… I made a mistake and I would like to apologise for it. I really thought that, concerning applications for the [summer course], I was in the same situation as [Ms J. and Ms K.] …’

29 On 1 February 2012, during a meeting with the applicant, the Director gave her a note in which he gave her formal instructions, in particular, to send an e-mail ‘to the staff of the [Unit]’ by 5 February 2012 to ‘apologise’ for having sent the e-mail of 18 January 2012 and ‘for having wrongly asserted that [the Head of Unit] [had not correctly applied] the criteria for the [summer course]’.

30 On 4 February 2012, the applicant sent a very detailed response to the Director, asking him to reconsider ‘the whole matter’. In a note of 10 February 2012, the Director refused to retract his instructions, and set the applicant a new deadline for carrying them out.

31 On 17 February 2012, in response to the applicant’s request that he assist her with the wording of the proposed apology, a request which, in her own words, was ‘purely rhetorical’, the Director sent the applicant an e-mail containing the instruction referred to in the third remark contested by the applicant, namely, the instruction to send an e-mail with the following wording to all members of the Unit, the Head of Unit and the Director:

‘I am sorry that I misunderstood the criteria for the [English summer course for 2012] and that I drew wrong conclusions regarding the way that the [Head of Unit] … proceeded.

32 On 29 February 2012, although she was on sick leave at the time, the applicant received an e-mail from the Director in which he complained that she had not yet complied with his instructions to apologise and informed her that, if she did not carry them out that same day, he would begin a disciplinary procedure.

33 That episode concerning participation in the summer course in Ireland earned the applicant the following comment in the ‘Conduct’ section of her 2012 staff report under the heading ‘Compliance with instructions’: ‘[d]id not respect an instruction of the Director (e-mail of the Director [of] 17 February 2012)’ (‘the third contested remark’).

Facts relating to an alleged lack of receptiveness to rules and instructions — fourth contested remark

34 The fourth remark contested by the applicant, as set out in the application, brings together three separate observations made in the ‘General assessment’ section of the 2012 staff report (‘the fourth contested remark’). First, under the heading ‘Extent to which the targets set at the previous assessment have been achieved’, it is stated, after a note mentioning that ‘[the applicant’s c]ontribution to the working atmosphere was more positive than in 2011’, that ‘[the applicant still needs to improve her] receptiveness to instructions’ (‘the first observation’).

35 Secondly, the subsection headed ‘Targets to be achieved by the time of the next assessment’ includes the following observation: ‘[The applicant must] improve [her] receptiveness to instructions and compliance with rules’ (‘the second observation’).

36 Lastly, under the heading ‘Assessment of first [reporting officer]’, it is stated that ‘[the applicant] is expected to improve [her] compliance with rules and instructions’ (‘the third observation’).

– annul her 2012 staff report, the decision to award one merit point and, so far as is necessary, the decision rejecting the complaint;

39 In the preparatory report for the hearing which the Parliament received on 21 November 2014, the Tribunal, by way of measures of organisation of procedure, put a question to the Parliament and asked that institution to provide a document. The Parliament duly responded to that question and that request. By letter of 8 December 2014, the applicant submitted her observations on the preparatory report for the hearing, which she had also received on 21 November 2014.

40 It should be borne in mind that, according to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Tribunal the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgments in Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).

41 In the present case, the decision rejecting the complaint confirms both the 2012 staff report and the decision to award one merit point for 2012 by revealing the reasons justifying the position adopted by the administration in those two decisions. The review of the legality of the initial acts complained of must therefore take account of the statement of reasons for the decision rejecting the complaint, since that statement of reasons is deemed to cover those acts also (see, to that effect, judgment in Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited). Consequently, given that the claim seeking annulment of the decision rejecting the complaint lacks any independent content, the action must be regarded as being formally directed against the initial decisions, as clarified in the decision rejecting the complaint (see, to that effect, judgment in Eveillard v Commission, T‑258/01, EU:T:2004:177, paragraph 32).

42 In support of her action, the applicant raises — in essence — two pleas in law, alleging manifest errors of assessment and a misuse of powers.

43 By her first plea in law, the applicant argues that, in including the contested remarks in her 2012 staff report, the appointing authority made a manifest error of assessment.

44 In that regard, the Tribunal observes, as a preliminary point, that reporting officers enjoy a wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the EU judicature of the content of staff reports is limited to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers. In particular, it is not for the Tribunal to review the merits of the administration’s assessment of the professional abilities of an official where it involves complex value judgments which by their very nature are not amenable to objective verification (judgment in CW v Parliament, F‑48/13, EU:F:2014:186, paragraph 70 and the case-law cited).

45 Since the first plea in law alleges manifest errors of assessment, it is necessary to recall the circumstances in which the Tribunal may find that a decision is vitiated by a defect of that kind, particularly in the field of assessing officials’ merits.

46 In that regard, an error may be regarded as manifest only where it can be easily detected in the light of the criteria to which the legislature intended the exercise of decision-making powers to be subject (see, to that effect, judgments in Canga Fano v Council, F‑104/09, EU:F:2011:29, paragraph 35, and CW v Parliament, EU:F:2014:186, paragraph 72).

47 As a result, in order to establish that the administration made a manifest error in its assessment of the facts which is such as to justify the annulment of the contested decision — here, the 2012 staff report — the evidence adduced by the applicant must be sufficient to render implausible the assessment of the facts made in that decision (see, to that effect, judgments in AIUFFASS and AKT v Commission, T‑380/94, EU:T:1996:195, paragraph 59, and BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 221). In other words, the complaint alleging a manifest error of assessment must be rejected if, in spite of the evidence put forward by the applicant, the contested assessment still appears to be plausible (judgment in CW v Parliament, EU:F:2014:186, paragraph 73).

48 That is particularly the case where a decision of the administration may be vitiated by errors of assessment or inaccuracies which, taken together, are of only minor significance and hence are unlikely to have influenced the administration (see, to that effect, judgments in Adia Interim v Commission, T‑19/95, EU:T:1996:59, paragraph 49; Belfass v Council, T‑495/04, EU:T:2008:160, paragraph 63; and AJ v Commission, F‑80/10, EU:F:2011:172, paragraph 36).

49 It is in the light of those considerations that the contested remarks, constituting four heads of challenge relied on by the applicant in support of her first plea in law alleging manifest errors of assessment, must now be examined.

50 The applicant submits that, during her period of sick leave (20 February 2012 to 28 March 2012), she was examined by two doctors who encouraged her to spend time with her family in order to gain moral, emotional and psychological support and to distance herself from the working environment which had caused her health problems. In that context, the applicant maintains that, in going to spend a weekend with her family in Prague, she was not spending her sick leave elsewhere than at the place where she was employed within the meaning of the second paragraph of Article 60 of the Staff Regulations. Therefore, in including the first contested remark in her 2012 staff report, the Parliament misinterpreted those regulations and made a manifest error of assessment.

52 According to the second paragraph of Article 60 of the Staff Regulations, if an official wishes to spend leave elsewhere than at the place where he is employed he is to obtain prior permission from the appointing authority.

53 In the present case, although the wording of that provision is clear, explicit and does not provide for any derogation connected with the nature of an illness — such as a psychological or psychiatric complaint — from the obligation to obtain prior permission, it is common ground that, from 2 to 5 March 2012, the applicant, then on certified sick leave, stayed in Prague without having sought prior permission from the appointing authority in order to leave the place where she was employed in compliance with the Staff Regulations.

54 Therefore, irrespective of the fact, relied on by the applicant, that her stay outside the place of her employment was extremely brief and was in response to a medical recommendation which she had not explicitly disclosed to the Parliament at the time in order to obtain the latter’s approval before taking that step, it must be held that the appointing authority was entitled to find that the applicant had not complied with the provision of the Staff Regulations relating to stays outside the place of employment during a period of sick leave and that the absence was, accordingly, unauthorised (see, to that effect, judgment in Österholm v Commission, T‑190/02, EU:T:2004:191, paragraph 39).

55 Thus, although a staff report is supposed to be an assessment of the official’s performance throughout the year, there is nothing to prevent the appointing authority from reporting a one-off incident, particularly where, as in the present case, that incident represents an infringement of a clear and specific rule directly derived from the Staff Regulations and where the official concerned, in response to a question from his Director-General as regards compliance with the rules laid down by those regulations, argues, as reported in paragraph 16 above, that he did not think he was required to submit a request for prior permission. In those circumstances, the inclusion of a remark, such as the first contested remark, in a staff report is not only not contrary to any of the provisions of the Staff Regulations, such as Article 43, but may even be regarded as having the legitimate objective of providing a means of warning the person concerned and helping to avoid a repeat of the infringement in question.

56 Regarding the applicant’s argument that the allegedly particularly difficult professional situation underlying her long-term sick leave was the reason why she had been advised by her doctors to spend that sick leave with her family in Prague, it must be found that those circumstances cannot absolve her from her obligation, which applies to all staff members, to comply with the second paragraph of Article 60 of the Staff Regulations. Furthermore, the Tribunal points out that it would have been easy for the applicant to contact the Parliament’s medical department, either by phone or a simple e-mail, in order to inform that department of those circumstances and to obtain information regarding her obligations under the Staff Regulations during a period of sick leave.

57 In those circumstances, it must be found that, in any event, the first contested remark is not vitiated by any manifest error of assessment.

58 The applicant states that, upon her return from her sick leave on 29 March 2012, she received a note from the Director informing her that he had relieved her of some of her professional tasks and activities, with the exception of her interpreting duties in Brussels and Strasbourg (France) and learning an additional language. Given that the performance of those various tasks, which were withdrawn from her from that date, had not only brought her a great deal of professional satisfaction but had also contributed to her professional development within the Unit, the applicant felt demoralised and unhappy after receiving that note from the Director.

59 It is in the light of those factors, inter alia, that the applicant submits that the Parliament, in stating that she had infringed both the second paragraph of Article 60 of the Staff Regulations and the Leave Guide, made a manifest error of assessment.

61 According to the Leave Guide, ‘[e]xcept in urgent cases, leave applications must be submitted, through [the Streamline application], at least five working days before the beginning of the period of absence’.

62 Having been invited on 9 July 2012 by another department of the Parliament to a job interview which was to take place in Luxembourg the following day, the applicant’s situation was indeed an urgent case for the purposes of the provisions of the Leave Guide mentioned above. In those circumstances, rather than decide to take ‘a day off as uncertified sick leave’ under improper conditions, the applicant, despite the urgency which she now claims, should have contacted one of her superiors in order to obtain prior permission for special or annual leave (orally or otherwise), regardless of the time required to process her request via the Streamline application. It has not been disputed by the Parliament that, in urgent cases, hierarchical superiors are competent to authorise an absence, even orally, as that absence can subsequently be formalised using the computer application mentioned above.

63 In addition, it can be seen from the Parliament’s response to the measures of organisation of procedure not only that the applicant could have taken a day of annual leave — even at very short notice — but also that she could have requested a mission order from the department that had invited her to attend the interview, or even from her own department.

64 Consequently, the applicant could easily have attended her interview on 10 July 2012 while still complying with both the Leave Guide and the internal practices of the Parliament. In that regard, the Tribunal considers that, irrespective of the subjective reasons given by the applicant in an attempt to justify her behaviour, it is not acceptable for a staff member to feign illness and thereby falsely claim an additional day of annual leave. Furthermore, it is perfectly legitimate for the administration to ensure, including through the use of comments in a staff report in connection with an irregularity of that kind, that staff members use their annual leave under the proper conditions (see, to that effect, judgment in CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 118).

65 It follows that the second contested remark is not vitiated by a manifest error of assessment.

66 According to the applicant, since the instructions which the Director provided in his e-mail of 17 February 2012 were based on groundless allegations, she was entitled to refuse to carry them out. In that regard, she argues that at no time did she accuse her Head of Unit of not having correctly applied the criteria for selecting candidates for the summer course in Ireland. In her view, the problem would have been resolved immediately if the Head of Unit had given a direct answer to the specific question put to her by the applicant on 14 December 2011.

67 Moreover, as the Reports Committee noted in paragraph 15 of its opinion, the only remarks which should have been included under the heading ‘Compliance with instructions’ in the ‘Conduct’ section of the 2012 staff report should have been those concerning the performance of professional duties, with the result that the third contested remark, which does not concern the performance of such duties but merely an interpersonal conflict, did not fall under that heading and should not have been included thereunder.

68 The Director’s instructions of 17 February 2012 thus reveal a manifest error of assessment which, as a result, vitiates the third contested remark in so far as it criticises the applicant for not having carried out those instructions.

70 It can be seen from the scheme of Article 21a of the Staff Regulations that an official who receives orders which he considers to be irregular or likely to give rise to serious difficulties must first of all inform his immediate superior, then, if necessary, where the immediate superior confirms the orders, the hierarchical authority above his immediate superior. The official is thus obliged, under that provision, to carry out the orders repeated or confirmed by his superiors ‘unless [those orders] are manifestly illegal or constitute a breach of the relevant safety standards’.

71 In that regard, the applicant claims that she was legitimately entitled to refuse to carry out the instructions she received from her Director on 17 February 2012 essentially on the ground that they constituted an abuse of authority and a misuse of powers. The Tribunal, however, holds that, in the particular circumstances of the present case, and leaving aside the applicant’s obligation under Article 21a of the Staff Regulations to inform her hierarchical superior: (i) there was nothing irregular about the instructions provided by the Director; (ii) carrying out those instructions did not give rise to any serious difficulties; and (iii) in any event, as was emphasised by the Parliament, they were not ‘manifestly illegal or [in] breach of the relevant safety standards’ within the meaning of that provision.

72 Indeed, although it is true that, if read in isolation, the instruction to apologise could give an impression of a clumsy attempt to resolve a purely personal conflict between the applicant and her Head of Unit, the Tribunal none the less considers that, when read in its proper context — that is, against the background of the applicant’s frequent insubordinate conduct — such an instruction, even if the technique employed does not necessarily correspond to the best practices in the field of managing interpersonal relations in the workplace, represents part of a legitimate step taken by the administration to ensure that all staff members comply with the rules laid down by the Staff Regulations — including those, like Article 21a of those regulations, designed to ensure the correct administrative procedure is followed by each department — in an atmosphere of mutual trust and, accordingly, remains within the bounds of the administration’s discretion with regard to that step.

73 Without herself claiming to meet any of the selection criteria for participating in the 2012 summer course, the applicant urged the Head of Unit to check that Ms J. and Ms K. were capable of meeting those criteria and, ultimately, cast doubt on that idea, on the ground that — in the applicant’s (mistaken) opinion — their ‘situation [was] identical to [her own]’. However, since she had been recruited by the Parliament in 2003 and had a high level of English, the applicant could not reasonably claim to be in the same situation as Ms J. and Ms K., who had been recruited in 2009 and had both only recently added English as an active language to their language combinations.

74 Having been informed of the selection criteria in September 2011, the applicant should have understood at that stage that Ms J. and Ms K. were ‘new colleagues’ as referred to in the first of the two alternative selection criteria for summer courses and that, accordingly, the Head of Unit was entitled to include them in the list of candidates from the Unit for the summer course in question. Indeed, since the two criteria were alternatives, the fact that those ‘new colleagues’ did not meet the second criterion — that of having English as a passive language — did not justify the applicant bringing up that issue repeatedly and even making it the subject of discussions during and following the Unit meeting of 13 January 2012. By the same token, nothing in the explanations which the Head of Unit gave the applicant on several occasions regarding the summer course in Ireland justifies the sending of the e-mail of 18 January 2012 in which the applicant, making reference to questions which, in her view, remained unanswered, implied that the Head of Unit did not know how to apply the criteria correctly.

75 In those circumstances, even if another modus operandi could have been used to restore a good working atmosphere within the Unit, the Tribunal considers that the Director did not make a manifest error of assessment in deciding, in his e-mail of 17 February 2012, that the applicant should acknowledge publicly — that is, before the other interpreters in the Unit — that the Head of Unit had acted correctly.

76 Emphasising that the fourth contested remark — that she ‘[needed to] improve [her] receptiveness to instructions and compliance with rules’ — appears under three headings in the ‘General assessment’ section of the 2012 staff report, the applicant argues that that remark is a repetition of the first, second and third contested remarks. On that basis, she submits that, for reasons previously put forward regarding those first three contested remarks, the fourth contested remark is also vitiated by a manifest error of assessment.

77 The Parliament observes first of all that, in her complaint, the applicant contested only the second observation. According to the Parliament, that observation is not a negative remark, but sets a perfectly reasonable objective.

78 Concerning the first and third observations, the Parliament chiefly contends that the arguments put forward regarding those observations are inadmissible since those observations were not contested in the complaint. In the alternative, it maintains that those two observations are justified.

79 Without it being necessary to determine whether the arguments put forward by the applicant regarding the first and third observations — which, indeed, she did not touch on in her complaint — are admissible, it is sufficient to state that none of the three contested observations is a mere repetition of one or other of the first three contested remarks.

80 Indeed, first, taking into consideration the findings of the Tribunal in the context of its examination of the first, second and third contested remarks, there is no basis whatsoever for holding that the second observation, which concerns the objectives to be achieved by the applicant in the area of compliance with the rules, is vitiated by a manifest error of assessment. In fact, the improvement of the conduct in the service of the official under appraisal is precisely the objective which the staff report aims to meet (see judgment in Morgan v OHIM, F‑26/13, EU:F:2014:180, paragraph 57 and the case-law cited, currently on appeal before the General Court of the European Union in Case T‑683/14 P).

81 Secondly, the first observation that ‘[the applicant still needs to improve her] receptiveness to instructions’ should be read in conjunction with the phrase immediately preceding it, which mentions that the applicant’s contribution to the working atmosphere was more positive in 2012 than in 2011. Thus, when read together with that phrase, the first observation is one of a more positive nature and, in any event, is not vitiated by any manifest error of assessment (see, regarding a similar remark in the applicant’s staff report for 2011, judgment in CW v Parliament, EU:F:2014:186, paragraphs 121 to 125).

82 Thirdly, there is nothing in the case-file permitting a finding that the third observation that ‘[the applicant] is expected to improve [her] compliance with rules and instructions’ is vitiated by a manifest error of assessment.

83 Accordingly, in the light of the foregoing, the first plea in law must be rejected in its entirety.

84 First, the applicant submits, in the arguments put forward in support of her assertion that the first and second contested remarks are vitiated by manifest errors of assessment, that the appointing authority made those comments, which relate to an infringement of the second paragraph of Article 60 of the Staff Regulations and of the Leave Guide, respectively, with the covert objective of harassing her, which comes within the definition of a misuse of powers. Secondly, in the arguments put forward in support of her assertion that the third contested remark, concerning an instruction she refused to follow, is vitiated by a manifest error of assessment, the applicant considers that, in the circumstances, the demand for her to comply with the Director’s instructions of 17 February 2012 even though they were based on imaginary or supposed facts constitutes a misuse of powers. Thirdly, the applicant considers that the fourth contested remark, being a repetition of the first, second and third contested remarks, also represents a misuse of powers.

86 It should be borne in mind that, according to settled case-law, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (judgment in CT v EACEA, F‑36/13, EU:F:2013:190, paragraph 72).

87 In the present case, regarding the four contested remarks, the evidence provided by the applicant does not in itself permit a conclusion that the appointing authority’s decision to include those four remarks in the 2012 staff report and to uphold those remarks was a misuse of powers.

88 Indeed, in so far as the applicant bases her assertion that there has been a misuse of powers on the harassment of which she claims to have been a victim during 2012, it must be observed that, as has been explained in paragraph 15 above, the issue of her alleged harassment is not the main subject of the present action, but of Case F‑124/13.

89 It is also important to bear in mind that just because it has been proved that a staff member has suffered psychological harassment, that does not mean that any decision adversely affecting the staff member and occurring in that context of harassment is automatically rendered unlawful. Indeed, by reason of its very nature, the fact that there is psychological harassment cannot be relied on, in principle, except to support a claim seeking the annulment of the appointing authority’s decision to refuse to grant a request for assistance made pursuant to Article 24 of the Staff Regulations, such as the one at issue in Case F‑124/13. 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 — which is not the situation in the present case — that there is a link between the alleged harassment and the negative assessments contained in such a report (see, regarding psychological harassment invoked against a dismissal decision, judgments in Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 69, and CF v AESA, F‑40/12, EU:F:2013:85, paragraph 79).

90 For the sake of completeness, the Tribunal finds that, in any event, the content of the contested remarks, whether taken in isolation or as a whole, does not, in the light of the Tribunal’s findings in the context of its examination of the first plea in law, in any way cross the line into offensive or hurtful criticism of the applicant personally (see, to that effect, judgments in N v Parliament, F‑26/09, EU:F:2010:17, paragraph 86, and CW v Parliament, EU:F:2014:186, paragraph 129). Accordingly, the contested remarks cannot, as such, be regarded as evidence that the 2012 staff report was drawn up for the purpose of psychological harassment (see, to that effect, judgment in Magone v Commission, T‑73/05, EU:T:2006:127, paragraph 80).

91 In the light of the foregoing, the second plea in law alleging a misuse of powers must be rejected and, as a result, the claim for annulment of the 2012 staff report must be dismissed as unfounded.

92 Regarding the claim for annulment of the decision to award one merit point, it is important to note that Article 15(2) of the general implementing provisions on staff reports adopted by the Parliament provides that the awarding of merit points must reflect the content of the staff report.

93 In the present case, it must be held that, in view of the negative comments included in the 2012 staff report, the appointing authority did not make any manifest error of assessment in awarding the applicant only one merit point (see, to that effect, judgment in Barbin v Parliament, F‑44/07, EU:F:2008:124, paragraph 53).

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

95 Under Article 101 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 bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those rules, the Tribunal may decide, if equity so requires, that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any.

96 It is apparent from the grounds set out in the present judgment that the applicant’s action has been unsuccessful. In addition, in its pleadings, the Parliament has expressly asked the Tribunal to order the applicant to pay the costs. As the circumstances of the present case do not justify the application of Article 102(1) of the Rules of Procedure, the applicant must bear her own costs and be ordered to pay the costs incurred by the Parliament.

2. Declares that CW is to bear her own costs and orders her to pay the costs incurred by the European Parliament.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CW v Parliament (Judgment) [2015] EUECJ F-41/14 (26 March 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/F4114.html Cite as: [2015] EUECJ F-41/14, ECLI:EU:F:2015:24, EU:F:2015:24

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