TL v Commission (Civil service - Members of the temporary staff - Judgment) [2022] EUECJ T-677/21 (13 July 2022)

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(Civil service – Members of the temporary staff – Appraisal report for 2019 – Obligation to state reasons – Manifest error of assessment – Setting of objectives – Misuse of powers – Liability)

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

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

1 By her action based on Article 270 TFEU, the applicant, TL, seeks, first, annulment of her appraisal report for 2019 (‘the contested appraisal report’) or, in the alternative, its partial annulment and, so far as necessary, of the decision of the European Commission’s authority empowered to conclude contracts of employment (‘the AECE’) of 8 July 2021 dismissing her complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against that report (‘the decision rejecting the complaint’), and, secondly, compensation for the non-material damage which she claims to have suffered due to the unlawfulness of that report.

2 The applicant was a member of the temporary staff, pursuant to Article 2(b) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), at grade AD 7 in the Commission between 16 November 2017 and 15 November 2020. She was assigned to Unit C.3 of the Directorate-General for Economic and Financial Affairs.

3 The 2020 appraisal exercise, covering the reference period from 1 January to 31 December 2019, was launched on 7 January 2020.

4 Following an appraisal dialogue, the applicant’s Head of Unit signed the appraisal report as reporting officer on 12 February 2020. By email of 12 February 2020, the applicant disputed several comments in the appraisal report. On 18 February 2020, the Head of Unit amended the appraisal report by deleting several of the comments disputed by the applicant.

5 In the contested appraisal report, the level of the applicant’s performance in 2019 was considered satisfactory. Furthermore, that report contained, under the headings relating, respectively, to the applicant’s competence and conduct in the service, the following two comments (‘the contested comments’):

– ‘[The applicant] improved her drafting skills, notably by developing a stronger eye for details’;

– ‘The conditions for this cooperation were sometimes challenging, putting her on a steep learning curve in terms of management of personal relationships’.

7 From 24 February 2020, the applicant was on medical leave until the end of her employment contract.

8 On 29 October 2020, the applicant was informed that her employment contract would not be renewed. The applicant brought an action against that decision which is the subject of Case T‑438/21, TL v Commission.

9 On 2 December 2020, in her appeal concerning the contested appraisal report, the applicant submitted her comments to the Appraisal and Promotion Unit.

10 On 16 December 2020, following a dialogue held on the same day with the applicant, the appeal assessor confirmed the contested appraisal report.

11 On 16 March 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations in respect of the contested appraisal report.

13 On 14 July 2021, the applicant submitted a request for assistance under Article 24 of the Staff Regulations.

– in the alternative, annul that report in so far as it contains the contested comments;

– order the payment of compensation for the non-material damage she claims to have suffered;

16 As a preliminary point, it should be borne in mind that, according to settled case-law applicable to legal matters involving the EU civil service, the administrative complaint such as referred to in Article 90(2) of the Staff Regulations and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 27 October 2016, CW v Parliament, T‑309/15 P, not published, EU:T:2016:632, paragraph 27 and the case-law cited).

17 Moreover, in view of the evolving nature of the pre-litigation procedure, an express decision rejecting a complaint which contains only further particulars and thus merely reveals, in a detailed manner, the grounds for confirming the earlier act, does not constitute an act adversely affecting the person concerned. Nevertheless, that same evolving nature of the pre-litigation procedure means that those further particulars must be taken into consideration in assessing the lawfulness of the contested act (see, to that effect, judgment of 14 July 2021, IN v Eismea, T‑119/20, not published, EU:T:2021:427, paragraph 39 and the case-law cited).

18 In the present case, it should be noted that the decision rejecting the complaint merely confirms the contested appraisal report. Consequently, the applicant’s action for annulment must be regarded as being directed solely against the contested appraisal report whose lawfulness must be examined by also taking into account the statement of reasons contained in the decision rejecting the complaint.

19 In support of her application for annulment, the applicant raises three pleas in law. The first alleges a manifest error of assessment and breach of the duty of care and of the principle of sound administration, since the Commission failed to set objectives for the period from 1 January to 31 December 2019. The second plea alleges infringement of Article 43 of the Staff Regulations, infringement of the Commission’s instructions for reporting officers, manifest errors of assessment, misuse of powers and breach of the duty of care and of the principle of sound administration. The third plea alleges infringement of the obligation to state reasons.

20 The applicant submits that the contested appraisal report is vitiated by an infringement of the obligation to state reasons, as flows from the second paragraph of Article 296 TFEU, the second paragraph of Article 25 of the Staff Regulations and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union. Against the background of a very tense working relationship with her Head of Unit, the contested comments should have been reasoned and, in particular, accompanied by examples or concrete facts which would have enabled her to understand specifically of what her drafting problems consisted and on which occasions and with which colleagues there had been problems.

22 According to settled case-law, staff reports are not decisions within the meaning of Article 25 of the Staff Regulations but are governed by the specific provisions laid down in Article 43 thereof, while Article 43 of the Staff Regulations is applicable to temporary agents under Article 15(2) of the CEOS (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 143 and the case-law cited).

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

24 In that regard, it should be noted that the contested appraisal report gives a sufficiently detailed overview of the applicant’s performance. The reporting officer clearly described, in particular under the ‘Efficiency’, ‘Ability’ and ‘Conduct in the service’ headings, the capacities and positive aspects relating to each of those categories, without failing to emphasise the difficulties faced by the applicant, as the second of the contested comments shows. The assessment in the contested appraisal report is entirely individualised and not impersonal. It may be recalled in that respect that the appraisal report is designed not to build an exhaustive picture of a member of staff’s performance in carrying out the tasks associated with his or her post, but to highlight, on the basis of conclusive evidence, the ability, efficiency and conduct in the service of each member of staff (see judgment of 12 July 2018, PA v Parliament, T‑608/16, not published, EU:T:2018:440, paragraph 31 and the case-law cited).

25 As regards the applicant’s argument that the contested comments should have been substantiated by concrete examples or facts, it should be noted that Article 43 of the Staff Regulations, applicable to members of the temporary staff pursuant to Article 15(2) of the CEOS, gives no indication as to a possible duty to substantiate, by factual elements or by evidence, all the comments included in the appraisal report. In addition, it is apparent from Article 2(3) of Commission Decision C(2013) 8985 final of 16 December 2013 laying down general provisions for implementing Article 43 of the Staff Regulations and implementing the first paragraph of Article 44 of the Staff Regulations (‘the GIP’), that each appraisal report must include a conclusion indicating whether or not the jobholder’s performance was satisfactory and that, if the performance were considered unsatisfactory, that conclusion must be based on factual elements.

26 Furthermore, the appraisal report constitutes a value judgement by the staff member’s line managers on the manner in which the staff member being appraised performed the duties conferred on him or her and on his or her conduct in the service (judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraph 43). A reporting officer is not required to set out a more detailed statement of reasons by providing specific examples to substantiate his or her value judgements (see, to that effect, judgment of 12 September 2007, Combescot v Commission, T‑249/04, EU:T:2007:261, paragraph 86).

27 Consequently, the Head of Unit was not required to substantiate the contested comments with examples, in particular in view of the fact that the applicant’s performance was considered satisfactory.

28 That conclusion is not called into question by the applicant’s argument, raised in the second plea, that the contested comments should have been substantiated by concrete examples and facts in accordance with the instructions for the reporting officers.

29 In that regard, it is sufficient to note that the document to which the applicant refers, entitled ‘Constructive dialogue and fair report: guidance for Reporting Officers’, available according to the Commission on its intranet site under the heading ‘Tips on how to conduct a dialogue and write a fair report’, does not constitute either a decision or an internal directive within the meaning of the case-law. That document does not have binding legal force but merely sets out recommendations and advice for reporting officers. Nor does that document impose a uniform practice on reporting officers to the effect that each assessment contained in an appraisal report should generally be accompanied by an example. In particular, that document cannot be interpreted as meaning that neutral or even favourable comments with regard to the person concerned should be generally illustrated by an example.

30 Similarly, it is necessary to reject the applicant’s argument that an obligation to substantiate the contested comments stems from the situation in the present case, which is characterised by a very tense employment relationship that severely affected her health.

31 It is true that the case-law requires that particular care be taken in certain cases with regard to the statement of reasons. That is the case in particular where the report contains assessments that are less favourable than those in a previous appraisal report (see judgment of 30 September 2004, Ferrer de Moncada v Commission, T‑16/03, EU:T:2004:283, paragraph 53 and the case-law cited). The same applies where the appraisal report is drawn up late and the reporting officer is no longer the line manager who was acting as reporting officer during the period reported on (see, to that effect, judgment of 30 September 2004, Ferrer de Moncada v Commission, T‑16/03, EU:T:2004:283, paragraph 54).

32 Nevertheless, the applicant has not referred to the existence of a situation which could make understanding the contested comments more difficult for her or which would justify a more detailed explanation. Neither her state of health nor the employment relationship with her Head of Unit that she describes as very tense constitutes such a situation. In particular, those aspects have no connection with the contested comments, which refer to the applicant’s ability to draft and to the difficult conditions for cooperation, not with the applicant’s manager, but in general.

33 In any event, in so far as the applicant claims that such specific examples or facts would have enabled her to understand of what her drafting problems consisted and on what occasions or with which colleagues there were problems, it must be held that that argument is based on a misinterpretation of the contested comments. Neither those comments nor any other comment in the contested appraisal report indicate that the applicant had drafting problems or problems with her colleagues.

34 On the contrary, the first of the contested comments, referred to in paragraph 5 above, commends the applicant’s progress in relation to her drafting ability during the period under appraisal. The second of the contested comments refers to challenging conditions for cooperation generally without mentioning the existence of interpersonal problems. Moreover, the contested appraisal report expressly assesses the applicant’s relationship with her colleagues in a positive way. That report states, in that regard, that it is ‘easy to work’ with the applicant and that she is ‘well integrated in the unit [and] generally maintains good relationships with her colleagues’.

The second plea, alleging infringement of Article 43 of the Staff Regulations, breach of the Commission’s instructions for reporting officers, manifest errors of assessment, misuse of powers and breach of the duty of care and of the principle of sound administration

36 The applicant submits that the inclusion of the contested comments in the contested appraisal report constitutes an infringement of Article 43 of the Staff Regulations, an infringement of the Commission’s instructions for reporting officers, manifest errors of assessment, misuse of powers and breach of the duty of care and of the principle of sound administration.

38 As regards the review to be carried out by the Court with regard to the applicant’s challenge to the assessments made by the Commission in the contested appraisal report, it should be noted that appraisal reports contain assessments which can give rise to judicial review only in order to ensure that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers by persons who are required to draw up those documents. In other words, reporting officers have the widest discretion when judging the work of people whom they are responsible for assessing and it is not for the Court to review the merits of that assessment, containing complex value judgements which, by their nature, are not susceptible of objective verification, except in the event of manifest error (see judgment of 23 September 2020, VE v ESMA, T‑77/18 and T‑567/18, not published, EU:T:2020:420, paragraph 90 and the case-law cited).

39 Moreover, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of an appraisal report, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible (see judgment of 23 September 2020, VE v ESMA, T‑77/18 and T‑567/18, not published, EU:T:2020:420, paragraph 91 and the case-law cited). In other words, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent. Accordingly, an error may be classified as manifest only where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended the administration’s exercise of its discretion to be subject (see, to that effect, judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 95).

40 As regards more particularly the judicial review of assessments in appraisal reports, it should be added that there is all the more reason to restrict that review to manifest error since the Court is not directly familiar with the situation of the staff members appraised, whereas the appraisal procedure includes administrative safeguards (see judgment of 23 September 2020, VE v ESMA, T‑77/18 and T‑567/18, not published, EU:T:2020:420, paragraph 92 and the case-law cited).

41 It is in light of those principles that it is necessary to examine the various arguments put forward by the applicant in support of her second plea.

42 In the first place, the applicant submits that the contested comments refer to drafting difficulties and to relationship problems between her and her colleagues. However, no one had informed her that there was a problem in her drafting. Similarly, she always maintained excellent relationships with her colleagues, with the only exception being the result of the way in which the Head of Unit managed the allocation of files.

43 That line of argument, which is based on an incorrect interpretation of the contested comments, as has been stated in paragraph 33 above, must be rejected.

44 Moreover, the applicant has not raised any argument capable of rendering implausible the contested comments.

45 In any event, it cannot be required that the value judgements made by line managers in the course of the consultation held under the appraisal procedure in respect of a given period be discussed beforehand between the staff member concerned and his or her management or form the subject of a prior written warning during the reference period, since they are the subject of a genuine exchange of views during the appraisal procedure (see, to that effect, judgment of 19 September 2019, FV v Council, T‑153/17, not published, EU:T:2019:622, paragraph 62 and the case-law cited).

46 In the second place, the applicant states that the contested comments are not accompanied by any contextualisation and any detail, relating in particular to the very tense employment relationship with her Head of Unit. The applicant claims that the Commission infringed its obligation under the duty of care and the instructions for reporting officers by not substantiating the contested comments at the interview for the contested appraisal report or in that report with examples and concrete facts. The applicant considers that, in the present case, which is characterised by a very tense employment relationship that has seriously affected her health, the obligations arising for the administration from the duty of care are substantially enhanced.

47 In that regard, it is sufficient to recall that it has already been found in the examination of the third plea alleging infringement of the obligation to state reasons that the contested appraisal report was sufficiently detailed and that the Head of Unit was not required to substantiate the contested comments with examples, be it on the basis of Article 43 of the Staff Regulations, on the basis of Article 2(3) of the GIP, on the basis of the document entitled ‘Constructive dialogue and fair report: guidance for Reporting Officers’, or on the grounds of the applicant’s state of health.

48 In the third place, the applicant submits that the contested appraisal report, and in particular the contested comments, are vitiated by a manifest error of assessment on account of the harassment of which she was the victim. Between November 2018 and December 2019, the applicant was excluded from emails relevant for her work, unjustifiably criticised and ignored by her Head of Unit, who also reallocated files on which she worked and gave different instructions to her and to a colleague, which caused a considerable amount of tension. The applicant asserts that the contested comments are the direct result of the harassment situation and would not have been included in the contested appraisal report if relations had been normal.

49 Furthermore, the applicant claims that the contested comments are also vitiated by a misuse of powers since they sought to undermine her personality, dignity and mental integrity.

50 It is important to make clear that the case-law recognises the possibility of relying on the existence of psychological harassment not only to support a claim for annulment which is directed against rejection of a request for assistance made by a member of staff on the ground that he or she considers him or herself to be the victim of harassment, but also in support of a claim for annulment directed against other acts adopted by the administration (see, to that effect, judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 147 and the case-law cited).

51 However, an applicant’s claim of psychological harassment at the hands of his or her line managers does not suffice to establish that any act adopted by his or her management is unlawful. The applicant must still prove the effect of the conduct amounting to psychological harassment on the content of the act being challenged, since, in that case, that means that the AECE, through its officials and higher-level members of staff, used its powers in the pursuit of an unlawful goal in the light of Article 12a of the Staff Regulations, which provides that ‘officials shall refrain from any form of psychological or sexual harassment’ (judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 92).

52 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 appraisal report, if it appears that there is a link between the alleged harassment and the assessments contained in such a report (see, to that effect, judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 148 and the case-law cited).

53 Such a link may arise in particular from the fact that the contested act was adopted in order to undermine the personality, dignity or physical or psychological integrity of the staff member and is, consequently, vitiated by a misuse of powers (see, to that effect, judgment of 12 January 2022, MW v Parliament, T‑630/20, not published, EU:T:2022:3, paragraphs 93 and 127).

54 In that regard, it should be recalled that the concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. An act is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been adopted with the purpose of achieving ends other than those stated. In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged. Thus, the overall assessment of evidence of misuse of powers cannot be based on mere assertions or on evidence that is insufficiently clear or is neither objective nor relevant (judgment of 7 June 2018, OW v EASA, T‑597/16, not published, EU:T:2018:338, paragraph 98).

55 The concept of ‘psychological harassment’ is defined, in Article 12a(3) of the Staff Regulations, as ‘improper conduct’, in the form of physical behaviour, spoken or written language, gestures or other acts, which takes place ‘over a period’ and is ‘repetitive or systematic’, suggesting that psychological harassment must be understood as a process that occurs over time and presupposes the existence of repetitive or continual behaviour which is ‘intentional’, as opposed to ‘accidental’. Moreover, in order to fall under that definition, such physical behaviour, spoken or written language, gestures or other acts must have the effect of undermining the personality, dignity or physical or psychological integrity of a person (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 76 and the case-law cited).

56 Accordingly, it is not necessary to establish that the physical behaviour, spoken or written language, gestures or other acts in question were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment without it being established that there has been any intention on the part of the harasser, by his or her conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such conduct, provided that it was intentional, led objectively to such consequences (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 77 and the case-law cited).

57 Moreover, under Article 12a(3) of the Staff Regulations, the conduct in question must be improper. It follows that the classification of such conduct as ‘harassment’ is subject to the condition of its being sufficient, when viewed objectively. An impartial and reasonable observer, of normal sensitivity and in the same situation, should consider the behaviour or act in question to be excessive and open to criticism (see, to that effect, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 78 and the case-law cited).

58 It must be stated that the contested comments contain positive assessments of the applicant’s performance, relating in particular to her drafting skills and acknowledge the difficult conditions for cooperation putting the applicant on a steep learning curve in terms of management of personal relationships. In any event, those comments contain no defamatory or degrading element and do not undermine the personality, dignity and psychological integrity of the applicant. The applicant does not put forward any objective and precise evidence capable of calling that finding into question.

59 Moreover, it must be held that the applicant has also failed to demonstrate the existence of a link between the alleged conduct of her Head of Unit, which she describes as psychological harassment, and the contested appraisal report. The applicant merely asserted that the contested comments resulted directly from the harassment situation, and that they would not have been included in the appraisal report if relations had been normal. However, none of the contested comments concerned the elements of psychological harassment on which she relies, but, on the one hand, the improvement in her drafting skills and, on the other hand, the difficult conditions for cooperation in general, in the context of which she was put on a steep learning curve in terms of management of personal relationships. Furthermore, the applicant has not put forward any other specific element in the contested appraisal report which is linked to the alleged psychological harassment.

60 Consequently, the applicant has not demonstrated that the contested appraisal report, and more particularly the contested comments, were vitiated by a manifest error of assessment or a misuse of powers on account of alleged psychological harassment.

61 In the fourth place, the applicant claims that the Commission breached its duty of care and the principle of sound administration in that it failed to take account of the very tense working relationship, constituting harassment, between her and her reporting officer.

62 In that regard, it is sufficient to note that the applicant has not developed any reasoning in support of those arguments, which are independent of that relating to the alleged psychological harassment. Consequently, those arguments must be rejected for the same reasons.

The first plea, alleging a manifest error of assessment, breach of the duty of care and of the principle of sound administration owing to the failure to set objectives for 2019

64 The applicant claims that the contested appraisal report is vitiated by a manifest error of assessment and a breach of the duty of care and of the principle of sound administration, given that the Commission did not set any objective for her for 2019 and consequently could not have carried out a proper and fair assessment of her performance in 2019.

65 In the first place, the applicant claims that it is apparent from the case-law that setting objectives at the start of the annual appraisal exercise is an essential factor. That case-law concerns staff members for whom the rules applicable to appraisal reports did not expressly lay down an obligation to set objectives, as is also the case here. Accordingly, the fact that there is no legal obligation to set objectives does not obviate the obligation for the administration to conduct an appraisal exercise in the light of predefined objectives.

66 In the second place, the applicant submits that two Commission documents, namely the Job Description Guidelines and a document entitled ‘Exercise 2020 – The appraisal process is an important opportunity to look back at the past year and reflect on the future. It is the moment to think about your achievements and your future aspirations and to discuss them with your manager’, stress the significance of setting objectives. At the hearing, the applicant referred to a third document in support of that argument, namely that entitled ‘Constructive dialogue and fair report: guidance for Reporting Officers’.

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

69 However, in the present case, neither Article 43 of the Staff Regulations nor the GIP require the administration to set each year formal objectives for the purpose of drawing up the annual report on the performance of the staff member or to appraise that performance on the basis of predetermined objectives. Therefore, in the absence of such rules, the fact that objectives were not set does not constitute an irregularity of a substantial nature justifying a declaration that the contested appraisal report is unlawful.

70 Contrary to what the applicant appears to suggest, such an obligation does not follow from the case-law either. The judgments relied on by the applicant do not stipulate an obligation to set objectives with a view to the annual appraisal of the performance of an official or staff member, or that the annual appraisal must be carried out in the light of predefined objectives in situations where the applicable legal framework does not lay down such obligations.

71 First, in the case that gave rise to the judgment of 8 September 2021, QB v ECB (T‑555/20, not published, EU:T:2021:552), the appraisal guide applicable to that case provided that, at the end of each appraisal exercise, the reporting officer and the staff member under appraisal had to determine the objectives by reference to which the staff member under appraisal would be assessed during the following appraisal exercise (see, to that effect, judgment of 8 September 2021, QB v ECB, T‑555/20, not published, EU:T:2021:552, paragraph 59).

72 Secondly, the general implementing provisions applicable in the case which gave rise to the judgment of 12 May 2011, AQ v Commission (F‑66/10, EU:F:2011:56), required the setting of objectives and the appraisal of the performance of the jobholder on the basis of set objectives (see, to that effect, judgment of 12 May 2011, AQ v Commission, F‑66/10, EU:F:2011:56, paragraphs 8 and 10).

73 Thirdly, the general implementing provisions applicable in the cases which gave rise to the judgments of 10 November 2009, N v Parliament (F‑71/08, EU:F:2009:150), and of 9 March 2010, N v Parliament (F‑26/09, EU:F:2010:17), provided for objectives to be set for the coming year, without in fact covering expressly situations in which an official was first assigned or an official was transferred during the course of the year from another institution. In those circumstances, the Court interpreted, in particular in the light of the principle of equality, the applicable general implementing provisions and the setting of objectives provided for therein as also covering those situations (judgment of 10 November 2009, N v Parliament, F‑71/08, EU:F:2009:150, paragraphs 54 and 55).

74 Fourthly, in the case which gave rise to the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), the Court emphasised the importance of, with a view to an official’s career development, the line manager setting objectives at the start of the annual exercise in order to establish that they were different from the objectives expected of a probationary official in the course of the probationary period, with a view to becoming an established official, and in order to establish that the appraisal reports and probation reports have separate purposes and functions (judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraphs 131 and 137). The Court did not express a view on the existence of an obligation on the part of the administration to fix the formal objectives each year for the purpose of drawing up the annual report on the performance of the official or staff member, or to assess that performance on the basis of predetermined objectives.

75 Contrary to what the applicant suggests, such an obligation does not follow either from the three Commission documents cited in paragraph 66 above. It is true that the Job Description Guidelines emphasise the importance of the existence of objectives for the management of work and the assessment of performance, without, however, establishing any obligation to set such objectives or to impose a uniform practice to that effect. The other document relied on by the applicant, which however concerns the appraisal for the year 2020, explains, under the heading ‘Objectives: look to the future’, the nature of the objectives, the procedure for their establishment and their function, including as an essential management tool and as a standard feature of good administration, without establishing an obligation to set objectives or to carry out the assessment on the basis of predetermined objectives. In any event, that document is one which merely provides staff with information and not a legal act establishing legally binding rules. Finally, as regards the document entitled ‘Constructive dialogue and fair report: guidance for Reporting Officers’, it was already found in paragraph 29 above that it did not have binding legal force but that it set out basic recommendations and advice for reporting officers. In any event, that document refers to objectives without indicating that such objectives must or should generally be set.

76 In the second place, even if the applicant considered that it was necessary to set objectives in 2018 for 2019, in order better to understand the tasks entrusted to her, she could have suggested to her line manager that such objectives should be set. It is not apparent from the file that the applicant made a request to that effect or that such a request was ignored by her management.

77 In the third place, the Court points out that the applicant’s general performance was considered satisfactory. The applicant does not claim that one or more comments in the contested appraisal report, including the contested comments, are based on the failure to take into account the fact that no objective was set for 2019. Moreover, the annulment of the contested appraisal report would not allow objectives to be set retroactively for 2019, whereas the Commission would remain obliged, under Article 43 of the Staff Regulations, to draw up an annual report for 2019, even in the absence of set objectives. Accordingly, the only difference in a new appraisal report drawn up after annulment of the contested appraisal report would be a reference to the fact that no objective had been set for 2019. The applicant has in no way substantiated how such a finding would be beneficial to her.

78 In the fourth place, it is necessary to reject the applicant’s argument that the failure to set objectives constitutes a particularly substantial irregularity because her job description provides for general tasks in respect of which clear objectives should have been set in order for them to be achieved. The question whether the administration is obliged to set objectives on the basis of which a staff member’s performance may be assessed or not does not depend on the content of his or her job description, but only on the legal framework applicable. It has already been held that the legal framework applicable in the present case did not establish such an obligation.

79 Consequently, the first plea in law and, therefore, the claim for annulment must be rejected as unfounded.

80 The applicant considers that the infringements affecting the contested appraisal report and the decision rejecting the complaint constitute wrongful acts.

81 The applicant seeks compensation for the non-material damage she claims to have suffered as a result of those infringements, which caused her significant stress and strong feelings of injustice. Those illegal acts also constitute a lack of respect, are defamatory and have damaged her health, dignity and professional reputation in an irrecoverable manner. The psychological harassment was the cause of serious depression from 2019 resulting in medical leave for several months in 2020. She is undergoing therapy and is still unemployed. The applicant estimates the non-material damage ex aequo et bono at the date on which the present action was brought in the amount of EUR 45 000.

83 In accordance with settled case-law, a claim for compensation for damage must be rejected where it is closely associated with a claim for annulment, which has itself been dismissed either as inadmissible or as unfounded (see judgment of 1 April 2009, Valero Jordana v Commission, T‑385/04, EU:T:2009:97, paragraph 90 and the case-law cited).

84 Since the application for annulment of the appraisal report must be rejected, it is necessary to reject the claim for damages and, consequently, the action must be dismissed in its entirety.

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

86 Since the applicant has been unsuccessful in the present case, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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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) >> TL v Commission (Civil service - Members of the temporary staff - Judgment) [2022] EUECJ T-677/21 (13 July 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T67721.html Cite as: EU:T:2022:456, [2022] EUECJ T-677/21, ECLI:EU:T:2022:456

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