KD v EUIPO (Civil service - Appraisal report - Judgment) [2022] EUECJ T-298/20 (26 October 2022)

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(Civil service – Members of the temporary staff – 2019 Appraisal exercise – Appraisal report – Pre-litigation procedure – Admissibility – Obligation to state reasons – Rights of the defence – Duty of care – Liability – Non-material damage)

European Union Intellectual Property Office (EUIPO), represented by K. Tóth, acting as Agent, and by B. Wägenbaur, lawyer,

composed, at the time of the deliberations, of H. Kanninen (Rapporteur), President, N. Półtorak and M. Stancu, Judges,

1 By her action based on Article 270 TFEU and brought on 22 May 2020, the applicant, KD, seeks, first, annulment of her appraisal report for the 2019 appraisal exercise (‘the contested report’) and, secondly, compensation in respect of the non-material damage she claims to have suffered.

2 On 16 July 2015, the applicant was recruited by the European Union Intellectual Property Office (EUIPO) as a member of the temporary staff for a five-year period, under Article 2(f) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’). She was assigned to the ‘Academy’ department of EUIPO.

4 From 2015 onwards, the applicant experienced personal difficulties and health problems. The latter required [confidential]. (1) The applicant also made use of [confidential].

5 In mid-2019, the applicant was notified of a mid-year feedback report. The latter states, inter alia, that she ‘attained her objectives until Q2, with the exception of the implementation of the [talent bank] (pending for [data protection] issues) and IPDentical (pending procurement procedures)’, that she is ‘comfortable in the role of Team Leader’ and that she ‘[was] very active and result-orientated [during the first semester of 2019]’.

6 In July 2019, a dialogue took place between the applicant and the administration.

7 On 3 February 2020, the applicant’s appraisal interview in respect of 2019 took place.

9 The contested report begins with sections entitled ‘General Information’, ‘Employee Information’, ‘Appraisal Dialogue’ and ‘Comments on working conditions including teleworking (if applies)’. The following section, entitled ‘Assessment of Objectives’, ‘contains the assessment of the results achieved including quality of deliverables and engagement of the jobholder in relation to the objectives and [key performance indicators] set for the period covered by the present appraisal’. That section covers team objectives, each of which is accompanied by a description of the applicant’s individual contribution, key performance indicators, the strategic areas concerned and the ‘Objective achieved’ assessment. The key performance indicators of the objective entitled ‘Implementation of the activities and projects defined and approved in [the Strategic Plan 2020] and [the annual work programme]’ include, in particular, the setting up, in the first quarter, of the talent bank. This is followed by the ‘Overall comments on objectives’ in which it is stated that the applicant ‘achieved most goals assigned’, the implementation of the talent bank having nevertheless been delayed due to data protection issues.

10 The next section is entitled ‘Conduct in the service’. That section states that the applicant ‘fully meets expectations’, ‘interacts well with her colleagues in a way that is direct, straightforward and honest’ and is ‘able to understand when compromise is needed’.

11 The following section, entitled ‘Assessment of Competencies’, contains the ‘assessment of competencies of the jobholder in relation to the skills required by his/her function group and grade’. That section covers nine competencies. For each of them, the contested report mentions the level required, which corresponds to the mark which EUIPO expects from the jobholder, and the mark actually obtained. EUIPO’s marking scale has several levels, including ‘developing’ (1), ‘adequate’ (2) and ‘proficient’ (3).

12 The applicant obtained the required mark of 3 for six competencies. In respect of another competency, she obtained a mark of 3, higher than the required mark of 2. On the other hand, in respect of the competencies ‘Prioritisation and Organisation’ and ‘Resilience’, the applicant obtained a mark of 2, whereas the mark required was 3. The ‘Overall comments on Competencies’ explain that she ‘writes quickly, clearly and correctly’ and ‘has a sound level of job knowledge in Academic matters and understands its implications at [EUIPO] level’. Those observations state, however, as regards ‘her prioritisation and organisation, [that] on [a] few occasions she was reminded to keep deadlines and anticipate’.

13 The following sections are entitled ‘Review of Development Plan’ and ‘Overall Appraisal Rating’. In respect of the latter, the assessment awarded to the applicant is ‘CLR’ or ‘corresponds to the level required for the post occupied’, that is to say, the antepenultimate level on the general assessment scale of six levels of EUIPO and a satisfactory level within the meaning of Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). That mark is followed by the ‘Manager’s overall assessment comments’:

‘In addition to what has been provided during the dialogue in July, and during the second semester, [the applicant] has attained her objectives. … [The applicant] is an Administrator and should be seen as a role model for the Academy staff by demonstrating the adequate skills, anticipating tasks and striving to maintain and deliver consistently high levels of work output and looking to improve quality at all times. In that context, and [on a] few occasions, she had to be reminded to keep deadlines and to show the proactiveness that she is capable of.’

14 On 1 April 2020, the authority empowered to conclude contracts of employment (‘the AECE’) notified the applicant of its decision not to renew her contract (‘the non-renewal decision’). In that decision, the AECE stated that it had taken account of the contested report.

– order EUIPO to pay her the sum of EUR 3 000 in respect of compensation for the material harm suffered;

17 EUIPO raises pleas of inadmissibility, first, of the action as a whole and, secondly, of the argument alleging infringement of the rights of the defence which the applicant puts forward in the first limb of the first plea.

18 In the rejoinder, EUIPO questions the admissibility of the present action, without formally raising a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.

19 EUIPO questions whether, before bringing the present action before the General Court, the applicant should have appealed against the contested report to the appeal assessor, in accordance with Article 43 of the Staff Regulations and Article 7 of Commission Decision C(2013) 8985 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 (‘GIP 43’). It argues that, in the absence of any such obligation, two different rules apply, namely, first, an obligation to lodge such an appeal before lodging a complaint within the meaning of Article 90 of the Staff Regulations and, secondly, the absence of such an obligation in the event of a direct application to the General Court.

20 EUIPO also argues that the justification for the option reserved to officials and members of staff to bring an action directly before the General Court against an appraisal report is not applicable where there is an internal appeals procedure such as that provided for by GIP 43. The lodging of a complaint is not, it submits, a necessary preliminary to bringing an application before the Court against an appraisal report provided for under Article 43 of the Staff Regulations, which expresses the freely expressed opinion of the reporting officers and not the assessment by the AECE. On the other hand, the internal appeal is, by definition, a procedural step involving the appeal assessor and not the AECE.

21 In response to the measures of organisation of procedure of the Court and at the hearing, the applicant claimed, in essence, that GIP 43 did not render the admissibility of her action subject to the exhaustion of internal remedies. She added that EUIPO could not, in any event, apply GIP 43 without infringing Article 110 of the Staff Regulations.

22 It is settled case-law that, in view of the nature of the appraisal report provided for in Article 43 of the Staff Regulations, which expresses the opinions freely drawn up by reporting officers, and not the appointing authority’s assessment, the lodging of a formal complaint, within the meaning of Article 90 of the Staff Regulations, is not a necessary precondition for bringing an action against such a measure. An action against the appraisal report therefore lies as from the date on which that report can be regarded as final (judgments of 3 July 1980, Grassi v Council, 6/79 and 97/79, EU:C:1980:178, paragraph 15, and of 23 September 2020, VE v ESMA, T‑77/18 and T‑567/18, not published, EU:T:2020:420, paragraph 47).

23 In the present case, it is common ground between the parties that the contested report is final. It is apparent from the file that the applicant did not refuse to accept that report within five working days from the date on which she was invited to consult it, in accordance with the second subparagraph of Article 6(8) of GIP 43.

24 EUIPO nevertheless wonders whether the case-law referred to in paragraph 22 above is applicable in a situation such as that in the present case, in which the applicant decided not to use the internal appeal procedure provided for in GIP 43, which was however open to her.

25 The first paragraph of Article 43 of the Staff Regulations, which applies to temporary staff pursuant to Article 15(2) of the CEOS, provides:

‘The appointing authority of each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before the lodging of a complaint as referred to in Article 90(2).’

26 As has already been held and contrary to what EUIPO essentially contends, by providing that the internal appeal must be exercised prior to the lodging of a complaint, the Council, the author of the Staff Regulations, did not intend to add a new condition of admissibility of complaints to those laid down in Article 90(2) of the Staff Regulations, but only to specify at what stage of the pre-litigation procedure the internal appeal had to be submitted, failing which it would be inadmissible (judgment of 18 May 2009, Meister v OHIM, F‑138/06 and F‑37/08, EU:F:2009:48, paragraph 139).

27 Since the complaint is not a necessary precondition for bringing legal proceedings (see paragraph 22 above), it cannot a fortiori be considered that the Council thus impliedly intended to make the admissibility of such an action subject to the lodging of an internal appeal.

28 Nor can such an obligation be inferred from the wording of GIP 43, which EUIPO applies by analogy in order to implement Article 43 of the Staff Regulations, in accordance with the second subparagraph of Article 110(2) of those regulations. The relevant provisions of GIP 43 do not even refer to the action which the person concerned might bring before the Court. Article 7 of GIP 43 provides as follows:

‘1. The jobholder’s reasoned refusal … shall automatically mean referral of the matter to the appeal assessor. …

3. Within 20 working days of the date of the reasoned refusal to accept the report and following the dialogue provided for in paragraph 2, the appeal assessor shall confirm the report or amend it, giving reasons.

29 Nor do the considerations relating to procedural efficiency and justifications underlying the case-law referred to in paragraph 22 above, on which EUIPO relies in its written pleadings, make it possible to impose such an obligation on the party concerned. First, to interpret GIP 43 as rendering the admissibility of a legal action subject to an obligation of that kind would have the effect of restricting the right under the Staff Regulations referred to in paragraph 22 above to challenge an appraisal report before the Court without first exhausting internal procedures (see, to that effect, judgments of 1 December 1994, Schneider v Commission, T‑54/92, EU:T:1994:283, paragraph 22, and of 18 May 2009, Meister v OHIM, F‑138/06 and F‑37/08, EU:F:2009:48, paragraph 140), thus contravening the principle that the institutions have no power to derogate from a right under the Staff Regulations by means of an implementing provision (see, to that effect, judgment of 4 May 2005, Castets v Commission, T‑398/03, EU:T:2005:159, paragraph 32).

30 Secondly, it amounts to rendering the applicant’s fundamental right to an effective remedy and access to an independent tribunal subject to a condition which is not apparent from the applicable legislation or from foreseeable and accessible case-law and, therefore, infringes Article 47 and Article 52(1) of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 135 (not published)).

31 The interpretation of GIP 43 proposed by EUIPO must therefore be rejected. It follows that the present plea of inadmissibility must be rejected, without there being any need to examine the applicant’s argument that EUIPO’s application of GIP 43 is contrary to Article 110 of the Staff Regulations.

2. Admissibility of the argument alleging infringement of the rights of the defence

32 EUIPO contends that the argument alleging infringement of the rights of the defence relied on by the applicant in the context of the first limb of the first plea is inadmissible. According to EUIPO, that argument does not comply with the requirements laid down in Article 76(d) of the Rules of Procedure. The applicant has failed to provide a minimum of indications as to why she was allegedly prevented from making observations on the criticisms levelled against her in the contested report.

34 Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, each application is required to state the subject matter of the proceedings, the form of order sought and a brief statement of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly, in the application itself (order of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1999:39, paragraph 20, and judgment of 15 June 1999, Ismeri Europa v Court of Auditors, T‑277/97, EU:T:1999:124, paragraph 29).

35 The application must, accordingly, specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements apply where an argument is made in support of a plea in law (judgment of 10 October 2019, ZM and Others v Council, T‑632/18, not published, EU:T:2019:732, paragraph 49).

36 In the present case, the applicant did not merely set out the present argument in the abstract. She explained to the requisite legal standard of what it consisted. In point 35 of the application, she stated that the alleged failure to state adequate reasons had affected her ability to defend herself adequately in the appraisal procedure against any criticism of her conduct. In point 29 of the reply, the applicant stated that, in the particular context of the case, the infringement of the rights of the defence was seen as an extension of the breach of the duty to state reasons and, thus, it was inextricably linked to the latter.

37 The present complaint is therefore set out in a sufficiently clear and precise manner to enable EUIPO to prepare its defence and the Court to rule on it. The present plea of inadmissibility must therefore be rejected.

38 The applicant seeks, first, annulment of the contested report and, secondly, compensation in respect of the non-material harm which she claims to have suffered.

39 In her application, the applicant puts forward three pleas in law in support of her claim for annulment. Those pleas allege, in essence, first, breach of the duty to state reasons and infringement of the rights of the defence and an error of fact, secondly, breach of the duty of care and, thirdly, manifest errors of assessment.

40 At the hearing, the applicant pleaded the illegality of a document entitled ‘QSD-0371 – Work Instruction: Appraisals at EUIPO’, which EUIPO annexed to its response to the measures of organisation of procedure ordered by the Court, and relied on two new pleas in law, formal note of which was taken in the minutes. One of those pleas alleges infringement of GIP 43, while the other alleges infringement of the Staff Regulations, of the right to sound administration, of the principle of transparency and of the objective of the appraisal procedure.

(a) The first plea, alleging breach of the duty to state reasons and infringement of the rights of the defence and an error of fact

41 The applicant divides this plea into two limbs, alleging, in essence, first, breach of the duty to state reasons and infringement of the rights of the defence and, secondly, an error of fact.

(1) The first limb of the first plea, alleging breach of the duty to state reasons and infringement of the rights of the defence

42 In the first limb, the applicant claims that the contested report is vitiated by several shortcomings in the statement of reasons, which in turn constitute an infringement of the rights of the defence (see paragraph 36 above). The applicant refers, first, to the assessment that she ‘achieved most goals assigned’ and, secondly, to the marks granted to her under the competencies ‘Prioritisation and Organisation’ and ‘Resilience’.

44 In that regard, it must be borne in mind that the obligation to state reasons referred to in Article 296 TFEU and reiterated in Article 41(2)(c) of the Charter of Fundamental Rights is an essential principle of EU law (see, to that effect, order of 24 April 2017, Dreimane v Commission, T‑618/16, not published, EU:T:2017:293, paragraph 36), the purpose of which is, first, to provide the person concerned with sufficient details to enable him or her to assess whether the act adversely affecting him or her is well founded and whether it would be expedient to bring legal proceedings to contest its legality and, secondly, to enable the EU judicature to review that act (see judgment of 23 September 2004, Hectors v Parliament, C‑150/03 P, EU:C:2004:555, paragraph 39 and the case-law cited).

45 The case-law has also established that the statement of reasons for a decision must be considered with reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question. In particular, the reasons given for a decision are sufficient if that decision was adopted in a context which was known to the person concerned and which enables him or her to understand the scope of the measure concerning him or her (see judgment of 1 April 2004, N v Commission, T‑198/02, EU:T:2004:101, paragraph 70 and the case-law cited).

46 Applied to the appraisal of officials and other members of staff of the European Union, those requirements require the reporting officer to state in a sufficient and detailed manner the reasons on which the appraisal report is based, in order to give the person concerned an opportunity to comment on the grounds relied on (judgment of 31 January 2007, Aldershoff v Commission, T‑236/05, EU:T:2007:27, paragraph 55).

47 To that end, it is sufficient, in principle, for the reporting officer to set out the salient points of the performance of the official concerned in terms of his or her efficiency, ability and conduct in the service. Thus, the reporting officer is not required to specify all the relevant factual and legal elements which he or she has relied on in support of his or her appraisal (judgment of 14 December 2018, UC v Parliament, T‑572/17, not published, EU:T:2018:975, paragraph 58).

48 Nor is the reporting officer, in principle, required to provide an explicit and specific statement of reasons for each of his or her assessments (see, to that effect, judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 75).

49 He or she must, however, give reasons for his or her assessments of the work of the member of staff concerned under the various sections of the analytical assessments of an appraisal report where this is required by the mandatory rules which the institution or agency concerned has imposed on itself (see, to that effect, judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraphs 75 and 76).

50 It is in the light of those considerations that it is necessary to examine whether the applicant is justified in claiming, first, that the statement that she ‘achieved most goals assigned’ and, secondly, the marks awarded to her under the competencies ‘Prioritisation and Organisation’ and ‘Resilience’, are vitiated by a lack of reasoning. If that is the case, it will also be necessary to examine whether the applicant’s rights of defence have been infringed.

51 The applicant criticises EUIPO for concluding in abstracto that most of the objectives she had been assigned were achieved without specifying which had not been attained, without providing any explanation as to those which had only been partially achieved, and without examining the results obtained in the light of the specific objectives and key performance indicators. She argues that the delay in implementing the talent bank mentioned in the contested report cannot be regarded as an objective which the applicant did not achieve. It was attributable to data protection problems and not to the applicant. The talent bank was, in any event, finalised in the fourth quarter of 2019 and the goal at issue thus achieved.

52 In the reply, the applicant adds that her previous appraisal reports included a reference to the specific objectives which had not been achieved or had been achieved, successfully achieved or partially achieved, or even surpassed. She also disputes that the dialogue with the reporting officer – no trace of which was retained – can compensate for the inadequate statement of reasons in the contested report.

54 In that regard, in the first place, it should be noted that, in the section of the contested report entitled ‘Assessment of Objectives’, EUIPO identified the various objectives the applicant was set for the reference period and accompanied the description of each of them with the entry ‘1. Objective achieved’. In the ‘Overall comments on Objectives’, which conclude that section, EUIPO added that the applicant had ‘achieved most goals assigned’ and that the implementation of the talent bank had been delayed due to data protection issues.

55 It follows that the reporting officer considered that the applicant had met all of those objectives, with the exception of the implementation of the talent bank in respect of which the delay was not, however, attributable to her. That reading is supported by the ‘Manager’s overall assessment comments’ at the end of the contested report. In those comments, the reporting officer stated the following: ‘In addition to what has been provided during the dialogue in July, and during the second semester[,] [the applicant] has attained her objectives’. Although, as the applicant observes, no trace of the dialogue of July 2019 has been retained, the mid-year feedback report on which that dialogue was based states the following: ‘Has attained her objectives until Q2, with the exception of the implementation of the … [talent bank] (pending for [data protection] issues) …’

56 In the second place, as regards the argument alleging EUIPO’s failure to provide explanations of the objectives that were achieved only in part, it is sufficient to note that the applicant has not identified the objectives which, in her view, should have been classified in that way.

57 In the third place, it should be noted that, contrary to the applicant’s claim, EUIPO did not fail to examine the results achieved in relation to the specific objectives and key performance indicators. As EUIPO correctly points out, that assessment appears, in essence, in the section of the contested report entitled ‘Assessment of Objectives’, in which ‘the results achieved including quality of the deliverables and engagement of the jobholder in relation to the objectives and [key performance indicators] set for the period covered by the … appraisal’ are evaluated.

58 In those circumstances, the contested report must be regarded as having provided detailed information which was sufficient, first, for the applicant to assess and comment on the validity of the assessment that she had ‘achieved most goals assigned’ and, secondly, for the Court to exercise its power of review. The allegations of infringement of the rights of the defence on which the applicant relies are based on the premiss that that assessment is vitiated by a defect in the statement of reasons and must therefore be rejected.

(ii) Assessment of the competencies ‘Prioritisation and Organisation’ and ‘Resilience’

60 The applicant complains that EUIPO merely indicated the mark obtained for the competencies ‘Prioritisation and Organisation’ and ‘Resilience’, without specifying the reason why the required mark was not obtained. The contested report thus contains only one explanatory sentence with regard to the first of those competencies and none concerning the second. An explanation, which was not brought to the applicant’s attention by other means, was all the more necessary since it was only in respect of the two competencies in question that she had failed to obtain the required mark.

61 At the reply stage, the applicant states that her previous appraisal reports contained a separate assessment from the reporting officer in respect of each of the competencies assessed, together with specific comments and examples.

62 The applicant adds that the alleged inadequacy is all the more apparent given that comments in the contested report show a clear-cut difference from those in an earlier appraisal report.

63 EUIPO replies that the contested report contains sufficient and adequate reasons for the marking of the competencies ‘Prioritisation and Organisation’ and ‘Resilience’. Those competencies are examined twice in that report, namely in the section ‘Overall comments on competencies’ and in that entitled ‘Manager’s overall assessment comments’.

64 EUIPO also submits that the applicant is not justified in relying on an enhanced obligation to state reasons on the ground that the contested report contains comments that are less favourable than those in earlier appraisal reports.

65 In the present case, the section entitled ‘Assessment of Competencies’ in the contested report includes the following instruction to the reporting officers:

‘In case competencies are assessed below the required rating affecting performance, please provide explanations in the section “Overall comments on competencies”.’

66 Point 3.5.5 of Annex A to the Reporting Officer’s Practical Dossier reproduces that instruction in the following terms:

‘If all the competencies are at required level[,] no comment is needed under this section. An overall comment is to be inserted in the section “Manager’s overall assessment comment” …

However, in case one or more competencies are assessed below the required rating affecting performance, the explanations need to be provided in the section “Overall comments on competencies”.’

67 Although the Reporting Officer’s Practical Dossier states that it has no legal value, it is clear from the wording of the instruction in question that it is indeed a mandatory rule and not mere advice for assessors or an option the exercise of which is left entirely to their discretion.

68 In the contested report, the applicant was awarded the marks of 2 under the competencies ‘Prioritisation and Organisation’ and ‘Resilience’. As stated in paragraph 12 above, those marks are lower than the required mark of 3.

69 In accordance with the instruction described in paragraphs 65 and 66 above, the reporting officer was therefore required to give explanations in the section ‘Overall comments on competencies’ of the contested report for the mark of 2 awarded to the applicant in respect of both competencies at issue.

70 However, with regard to the competency ‘Prioritisation and Organisation’ of the contested report, the reporting officer stated as follows in the ‘Overall comments on competencies’: ‘On [a] few occasions [the applicant] was reminded to keep deadlines and anticipate.’ Likewise, the ‘Manager’s overall assessment comments’ contain the following observation: ‘[On a] few occasions, she had to be reminded to keep deadlines and to show the proactiveness that she is capable of.’

71 It follows that the contested report complied with the instruction described in paragraphs 65 and 66 above as regards the competency ‘Prioritisation and Organisation’. That report is therefore not vitiated by any failure to state reasons in that regard.

72 On the other hand, as regards the competency ‘Resilience’, it should be noted that the contested report is devoid of any observation. Neither the ‘Overall comments on competencies’ nor the ‘Manager’s overall assessment comments’ contain the slightest express reference to that competency.

73 Contrary to EUIPO’s submissions, nor do those two sections contain particulars which could be interpreted as impliedly attaching to that competence. It is true that, as EUIPO points out, those sections contain two observations according to which the applicant had to be reminded on a number of occasions to comply with deadlines (see paragraph 70 above). However, first, it is expressly stated in the contested report that the first of those two observations concerns the competency ‘Prioritisation and Organisation’. The second observation is identical in content. It must therefore be held that it also concerns that competency rather than the ‘Resilience’ competency.

74 Next, both in the contested report and in the applicant’s previous appraisal reports, the qualities of anticipation and proactivity are primarily associated with organisation and compliance with deadlines and not with resilience. In the contested report, the key performance indicators relating to the objective consisting in ‘ensur[ing] compliance with management procedures while seeking continuous improvement in department operations’ include ‘95% deadlines respected. Proactively raise issues to management and ensure/remind on-time about pending actions’. Similarly, in the appraisal report for 2018, the fact of ‘proactively [being] organised, anticipat[ing] and respect[ing] deadlines’ is one of the applicant’s individual contributions towards achieving the objective of ‘Enhanc[ing] operational efficiency and quality of services’.

75 Finally, the ‘Resilience’ competency is defined, in the contested report, as the ability to ‘remain effective under work pressure, be flexible and adapt to a changing work environment’. It has not been established that the qualities of anticipation and proactivity fall within the scope of that definition. Those qualities were not, moreover, among those which the reporting officer took into account under the ‘Resilience’ competency in the applicant’s previous appraisal reports. Under that competency, those reports emphasised the applicant’s ability to work and to be productive under pressure, and her ability to take on new tasks and her adaptability.

76 It follows that EUIPO failed to give sufficient reasons for the mark awarded to the applicant under the ‘Resilience’ competency.

77 It must therefore be concluded that the contested report is vitiated by a breach of EUIPO’s duty to state reasons, without it being necessary to determine whether EUIPO was, as the applicant claims, under an enhanced obligation to state reasons due to the regression as compared with her previous appraisal. The present complaint must therefore be upheld.

78 On the other hand, it cannot be held that the contested report is vitiated by an infringement of the rights of the defence on account of the defective statement of reasons found in paragraph 77 above. The applicant has failed to demonstrate that that defect deprived her of the opportunity to defend her interests effectively prior to the adoption of the contested report or to appeal against that report to the appeal assessor. The argument alleging infringement of the rights of the defence must therefore be rejected.

79 It follows from the foregoing that the present limb must be upheld only in so far as it is alleged that EUIPO gave insufficient reasons for the mark of 2 awarded to the applicant under the ‘Resilience’ competency, which was one of the two competencies in respect of which she obtained a mark lower than that required and which, in the light of the seven competencies in which she obtained at least the required mark and the other sections in the contested report, could have influenced the reporting officer’s decision not to award her an overall mark greater than ‘CLR’.

80 That ground is sufficient for the contested report to be annulled. Since the applicant is relying in support of her claim for compensation on the alleged unlawful conduct on which the second limb of the present plea, the second plea and the third plea are based, the Tribunal nevertheless considers that it is in the interests of the proper administration of justice to examine that limb and those pleas.

81 The applicant submits that the observation that she was reminded to comply with deadlines is vitiated by factual error. She claims that during the reference period, she was not given any such reminder and manifestly attained her normal level of performance, including in the field of ‘Prioritisation and Organisation’. Moreover, it was acknowledged in the mid-year feedback report and at the appraisal interview that she had been very active.

82 EUIPO contends in reply that characterising the reporting officer’s finding as ‘materially incorrect’ does not prove an error, let alone a manifest error. It is merely a self-assessment, which is moreover entirely unsubstantiated, by which the applicant seeks to substitute herself for the reporting officer.

83 At the rejoinder stage, EUIPO has produced, in Annexes D.1 to D.5, email exchanges from which it is allegedly apparent that the applicant’s line manager drew her attention to compliance with deadlines.

84 As regards the references concerning the applicant’s usual performance, EUIPO claims that she still seeks to substitute her assessment for that of the reporting officer and makes unfounded extrapolations. Those references are, moreover, ineffective, since the overall level of the appraisal reports in respect of 2018 and 2017 was lower than that of the contested report, whereas that in respect of 2016 was identical. Only the overall level of the appraisal report in respect of 2015 was higher than that of the contested report.

85 It is appropriate to examine, first, the admissibility of Annexes D.1 to D.5 and, secondly, the merits of the present limb.

86 The applicant claims that the evidence in Annexes D.1 to D.5 was submitted out of time. She states, however, that she does not formally plead its inadmissibility.

87 EUIPO responds that the evidence in Annexes D.1 to D.5 is intended to respond to an argument raised in the reply. Moreover, that evidence was known to the applicant.

88 In that regard, it should be borne in mind that, under Article 85(1) of the Rules of Procedure, evidence is to be submitted in the first exchange of pleadings. However, according to Article 85(2) of those rules, in reply or rejoinder a party may produce or offer further evidence in support of his or her arguments, provided that the delay in the submission of such evidence is justified.

89 It also follows from the case-law that evidence in rebuttal and the amplification of previous evidence, submitted in response to evidence in rebuttal put forward by the opposing party in his or her statement in defence, are not covered by the time-bar rule in Article 85(1) of the Rules of Procedure. That provision concerns fresh evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 126 (not published)).

90 In the present case, it was not until the stage of the rejoinder that EUIPO produced, in Annexes D.1 to D.5, the email exchanges intended to refute the applicant’s argument directed against the observation that her line manager had had to remind her to observe deadlines. All those exchanges predate the adoption of the contested report and, a fortiori, the lodging of the defence.

91 EUIPO contends, admittedly, that those exchanges were intended to show that, contrary to what the applicant put forward in the reply, it was not incorrect to consider that she had been reminded to observe deadlines.

92 It should be noted, however, that the applicant had already claimed in the application that she had not been given any reminder of that nature. She had reiterated that argument in support of her third plea in point 48 of the application.

93 The email exchanges in Annexes D.1 to D.5 could therefore have been produced at the stage of the defence. In so far as they were not produced at that stage, they must be rejected as inadmissible.

94 It is not for the Court to substitute its assessment for that of the persons responsible for appraising the work of the person under appraisal. Reporting officers enjoy a wide discretion when appraising the work of persons upon whom they must report. Consequently, review by the Courts of the European Union of the content of appraisal 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 (see, to that effect, judgments of 1 June 1983, Seton v Commission, 36/81, 37/81 and 218/81, EU:C:1983:152, paragraph 23, and of 25 October 2005, Cwik v Commission, T‑96/04, EU:T:2005:376, paragraph 41).

95 In that regard, it should be recalled that the reporting officer is not required to include in the contested report all the relevant matters of fact and law in support of his or her observations (see paragraph 47 above), nor to substantiate them with specific examples, particularly as the applicant had the opportunity to question him or her in that regard during the formal dialogue (see, to that effect, judgment of 12 September 2007, Combescot v Commission, T‑249/04, EU:T:2007:261, paragraph 86).

96 Nevertheless, the facts and other concrete examples relied on by the reporting officer in support of his or her observations must be established.

97 In the present case, the applicant formally relies on a manifest error of assessment, which presupposes that she adduce evidence which is sufficient to render implausible the assessments made by the administration (see, to that effect, judgment of 12 March 2020, QB v ECB, T‑215/18, not published, EU:T:2020:92, paragraph 102).

98 It should, however, be recalled that the Court is not bound by the parties’ characterisation of their pleas and arguments (judgment of 15 December 1999, Freistaat Sachsen and Others v Commission, T‑132/96 and T‑143/96, EU:T:1999:326, paragraph 96).

99 It must be noted that the applicant is, in reality, alleging that the comment that she was reminded to comply with deadlines during the reference period is substantively inaccurate, that is, an error of fact and not a manifest error of assessment. She disputes the actual existence of those reminders.

100 In the defence, EUIPO merely criticised the applicant for failing to prove the existence of a manifest error and for intending to substitute her assessment for that of the reporting officer. It was only at the stage of the rejoinder that it added that the applicant’s denials did ‘not depict the reality’. It has, however, failed to adduce any admissible evidence to establish the truth of the reminders in question.

101 Moreover, the material in the file casts doubt on the truth of those reminders. Thus, as the applicant points out, the mid-year feedback report described her as having been ‘very active and result-orientated [during the first semester of 2019]’.

102 The applicant is therefore right to rely on the substantive inaccuracy of the comment in question, which is the only one in the contested report to be negative and in respect of which, consequently, it cannot be ruled out that it had a negative influence on the applicant’s overall mark.

104 The applicant complains that EUIPO failed to fulfil its enhanced duty of care by failing to take into consideration the relevant individual circumstances, namely the impact on her of the contested report during the health crisis, the serious health problems from which she suffered and the effort she made to overcome them while managing her work. The contested report focuses on a minor failure to comply with deadlines and fails to recognise her efforts and merits and to take account of the positive aspects of her service and the projects she completed successfully despite her health problems.

105 At the stage of the reply, the applicant adds that her medical problems, which were taken into account in her previous assessment reports, were still current during the reference period. She states that it was not until December 2019 that she began to recover [confidential]. In support of her arguments, she submits a medical report of 26 May 2020 as Annex C.1.

106 EUIPO’s failure to comply with its duty of care with regard to the applicant is also illustrated by several incidents of which the reporting officer was aware, but which he did not take into account. First, the applicant raises the attitude of the medical service towards her, which she claims failed to show any understanding whatsoever, or care for her state of health and merely emphasised the importance of submitting medical certificates on time.

107 Secondly, the applicant submits that EUIPO prevented her from going on mission.

108 Indeed, she argues, EUIPO’s unsupportive conduct is apparent from the Results of Feedback Exercise of EUIPO for 2020.

109 The applicant adds that the breach of the duty of care is all the more severe since the contested report could have a detrimental impact on her personally and on her career, while she has just recovered from her health problems and in the context of a health crisis which has considerable economic consequences.

110 EUIPO contests the applicant’s arguments. In the first place, it submits that the applicant’s point of view is implausible, since the overall mark awarded in the contested report was higher than that awarded in her two previous appraisal reports.

111 In the second place, EUIPO submits, in essence, that the duty of care does not go so far as to oblige the reporting officer to take into account problems encountered during periods prior to the appraisal period. The personal and health problems to which the applicant refers date from 2015 to 2018. The mere fact that the applicant [confidential] does not necessarily mean that she continued to suffer from the same symptoms as in previous years. The applicant’s statement that she had recovered fully at the end of 2019 confirms this, as does the fact that [confidential]. As regards the medical report of 26 May 2020 which the applicant submitted as Annex C.1 to the application, EUIPO argues it is inadmissible on account of its unexplained production in the stage of the reply.

112 EUIPO adds that, if the duty of care had be interpreted as extensively as the applicant proposes, the reporting officer would be required to speculate as to whether past health problems had a bearing on the ability of the person concerned to perform his or her duties during the reference period.

113 In the third place, the various illustrations of EUIPO’s breach of its duty of care on which the applicant relies do not relate either to the contested report or to the reporting officer.

114 As regards the health crisis, which did not exist during the reference period, the applicant’s comment is speculative.

115 It must be recalled that the duty of care reflects the balance of the reciprocal rights and obligations established by the Staff Regulations, and by analogy the CEOS, in the relationship between a public authority and its civil servants. Like the right to sound administration, that balance implies in particular that when the authority takes a decision concerning the position of a member of staff, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the staff member concerned (judgments of 16 March 2004, Afari v ECB, T‑11/03, EU:T:2004:77, paragraph 42, and of 7 May 2019, WP v EUIPO, T‑407/18, not published, EU:T:2019:290, paragraph 58).

116 In the present case, it must be held that, contrary to what the applicant claims, the reporting officer did not focus solely on the question of timeliness, but took into consideration several of the aspects which she criticises him for having ignored. Thus, first, it is apparent from paragraphs 54 to 59 above that the reporting officer acknowledged that the applicant had achieved the objectives assigned to her during the period in question. He also took into consideration the quality of her work, since he awarded her a mark of 3 under the competency ‘Quality and Results’ and devoted a substantial part of the section ‘Manager’s overall assessment comments’ to the description of projects which she had successfully completed. Secondly, the reporting officer took into account the applicant’s conduct in the service, which he considered fully to meet expectations. He also awarded the applicant a mark of 3 under the ‘Communication’ and ‘Working with Others’ competencies. Thirdly, the reporting officer took into account the applicant’s personal development, noting that she had ‘invested the required time and efforts in developing her competencies and skills according to the agreed individual training plan’. He also awarded the applicant a mark of 3 under the competence ‘Learning and Development’. Fourthly, the reporting officer took into account the applicant’s analytical and management abilities, since he awarded her a mark of 3 in respect of competencies ‘Analysis and Problem Solving’ and ‘Leadership’. Fifthly, the reporting officer took into account the applicant’s knowledge and professional experience, noting that she had ‘a sound level of knowledge in Academic matters and understands its implications at [EUIPO] level’.

117 As regards the health crisis, it is sufficient to observe that it was not for the reporting officer to take it into account for the purposes of assessing the applicant’s ability, efficiency and conduct in the service during the appraisal period. That crisis occurred after that period.

118 As regards the lack of understanding of EUIPO’s medical service and the decision not to allow the applicant to work on mission, the applicant does not explain how they are connected with the contested report or with her performance during the appraisal period.

119 Lastly, as regards EUIPO’s Feedback Exercise for 2020, it is sufficient to note that it does not specifically concern the applicant’s situation, nor a fortiori her performance during the appraisal period.

120 It therefore remains to be determined whether the applicant is justified in complaining that EUIPO failed to take account of her health problems in the contested report.

121 In that regard, it should be borne in mind that the administration is bound by substantially enhanced obligations under the duty of care where the situation of an official whose physical or mental health is shown to be affected is involved. In such a case, the administration must take due account of those health problems for the purposes of adopting the act in question (see, to that effect, judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraphs 106 and 107).

122 It is common ground between the parties that between 2015 and 2018 the applicant experienced health problems which required [confidential]. The disagreement between the applicant and EUIPO relates to whether those problems continued during the reference period, EUIPO maintaining, in the context of the present plea, that they ceased in 2018.

123 In that regard, first, it must be noted that the applicant did not at any time indicate that she had overcome her health problems in 2018. Secondly, EUIPO does not dispute that the applicant experienced health problems in 2019. It thus stated the following in the defence: ‘Between 2015 and 2019, [the applicant] had a number of health issues and [confidential].’ It is also apparent from the medical certificates which the applicant submitted to EUIPO’s medical service in 2019 that she [confidential], of which the reporting officer, as the applicant’s line manager, could not fail to be aware.

124 EUIPO has, moreover, failed to put forward any argument to show that the applicant’s health problems ceased in 2018 or that the reporting officer was unaware that they persisted during the reference period. First, contrary to what EUIPO contends, the appellant’s assertion before the Court she was fully recovered in December 2019 does not show that those problems ceased in 2018. Secondly, as regards [confidential], it does not in any way demonstrate that she had already recovered at the end of 2018. The applicant [confidential], without EUIPO casting doubt on her having suffered health problems during those three years.

125 It must therefore be held that the applicant’s health problems persisted during the period in question and that EUIPO was aware of them. The latter was therefore subject to substantially enhanced obligations under the duty of care and therefore had to take due account of the applicant’s health problems with a view to the adoption of the contested report.

126 However, the contested report does not contain the slightest reference to those problems, which EUIPO, moreover, did not in any way dispute before the Court. Nor has EUIPO demonstrated that it took account of those problems in any way in the appraisal procedure.

127 In the statement in defence, EUIPO defended itself by invoking the optional nature of the increase in appraisals given to an official for performance in such a way as to take into account the conditions in which he or she performed his or her duties in spite of having had less actual working time owing to absences on the ground of sickness. At the hearing, it even argued that the taking into account of such absences in an appraisal report had been ‘repeatedly invalidated by the European Court of Justice’.

128 It must, however, be observed that the applicant does not take issue with EUIPO for failing to take into account her absences owing to sickness or the fact that she had less actual working time as a result. She alleges that it failed to take account of her state of health in general.

129 The applicant is therefore justified in claiming that EUIPO did not give the required consideration to her health problems in the contested report and, consequently, breached the duty of care. The present plea must, as a result, be upheld inasmuch as it concerns those problems, without there being any need to take into account Annex C.1. It must be dismissed as to the remainder.

130 The applicant claims that the contested report is vitiated by a manifest inconsistency between the mark she was awarded and the comments which are supposed to justify the assessment of her. Although all the objectives were achieved and the assessment of conduct in the service, competency and development programme were overall really positive, the overall rating is mediocre.

131 The applicant puts forward two complaints in support of that argument, relating, first, to the assessment of the objectives assigned to her and, secondly, to the assessment of the competencies ‘Prioritisation and Organisation’ and ‘Resilience’.

132 The applicant criticises EUIPO for finding in the section ‘Overall comments on Objectives’ that she had achieved most of her objectives, while stating, in other sections, that she had achieved them all. Thus, in the absence of any identification of the objectives that were not achieved and inasmuch as the applicant was not responsible for the delay in implementing the talent bank, that comment is not substantiated and is rather vague. The reference to that delay creates false impressions and leaves room for insinuation.

134 In that regard, it is sufficient to refer to the examination of the first limb of the first plea in law (see paragraphs 54 to 59 above), from which it is apparent that EUIPO neither vitiated the contested report by inconsistency nor failed to identify the objective that was not achieved. As regards the talent bank specifically, it is expressly stated in the contested report that the delay in implementing it was due to data protection problems. The reference to that delay is therefore not such as to give rise to false impressions or to leave room for insinuation.

(2) Assessment of the competencies ‘Prioritisation and Organisation’ and ‘Resilience’

136 The applicant complains, in essence, that the assessment of the competencies ‘Prioritisation and Organisation’ and ‘Resilience’ as well as the allegation that she had had to be reminded to observe deadlines are unjustified. First, the applicant claims she was not given any such reminders and did not fail to comply with any deadline. Secondly, as regards the ‘Resilience’ competency, the applicant submits that the fact she succeeded in carrying out all her tasks within the deadlines and that she achieved all of her objectives, while facing a significant workload, is sufficient to demonstrate her effectiveness under pressure and her flexibility.

138 It should be observed at the outset that the applicant’s arguments concerning the assessment of the competency ‘Prioritisation and Organisation’ is based not on manifest errors of assessment, but on an error of fact, by which, as the Court has already held in paragraphs 94 to 103 above, to which reference is made, the contested report is vitiated.

139 As regards the ‘Resilience’ competency, suffice it to state that, in the absence of an adequate statement of reasons in the contested report (see paragraphs 72 to 77 above), it is impossible for the Court to exercise its power to review the alleged manifest errors.

140 In the light of all the foregoing, the contested report must be annulled on grounds of failure to state reasons, error of fact and breach of the duty of care, without there being any need to examine the two new pleas in law and the plea of illegality raised at the hearing (see paragraph 40 above), in respect of which the applicant has not claimed they caused her any damage.

141 The applicant claims that the contested report caused her non-material damage, which she assesses at EUR 3 000.

142 In support of her line of argument, in the first place, the applicant claims that she suffered from a feeling of distress, anxiety and injustice as a result of the fact that the contested report contains false statements, does not show her strong points and assets, does not take into consideration her personal situation, is inconsistent and insufficiently reasoned and is vitiated by a manifest error of assessment.

143 The applicant adds that the renewal of her contract was under consideration at the time when the contested report was adopted. Although the latter was of crucial importance in that context, the applicant was deprived of the possibility of raising it during the dialogue on her renewal and in her comments regarding the renewal. At the reply stage, the applicant states that she continues to rely on the non-renewal decision in order to emphasise that it accentuated the feelings of distress, anxiety and injustice caused by the contested report.

144 In the second place, in the light of the non-renewal decision, the contested report, which would remain in the applicant’s personal file, causes her a feeling of fear and uncertainty regarding her future employment, in particular in view of the serious economic consequences of the health crisis.

145 At the same time, the applicant claims that her professional reputation was damaged, since she was wrongly described as incapable of adapting to different environments, of delivering under pressure, of prioritising and of complying with deadlines.

146 The applicant adds that, since the non-material damage allegedly suffered is distinct from the unlawfulness of the contested report, the annulment of that report does not constitute sufficient compensation.

148 As a preliminary point, it should be noted that the applicant seeks, in essence, compensation in respect of three heads of damage. The first relates to the feeling of distress, anxiety and injustice she experienced due to the errors and omissions in the contested report. The second and third correspond to the damage which the contested report caused to her prospects and professional reputation, respectively.

149 It should be recalled that, in order for the European Union to incur liability, a number of conditions must be satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42, and of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 52). As those conditions must be satisfied cumulatively, it is sufficient that one of them not be satisfied for an action for compensation to be dismissed (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 14).

150 In the present case, it must be stated at the outset that the claims of illegality to which the applicant imputes the third head of damage are based on a misreading of the contested report. Contrary to what the applicant claims, that report does not describe her as being incapable of adapting to different environments, of delivering under pressure, prioritising or complying with deadlines. It merely states that she had to be reminded, ‘on [a] few occasions’, to comply with deadlines, to show the proactiveness of which she was capable and to anticipate. As regards the question of how the applicant delivers under pressure, the contested report contains no comment as to her abilities or their absence, merely awarding her the mark of 2 on the basis of the ‘Resilience’ competency (see paragraphs 72 to 77 above).

151 The first condition for the European Union to incur liability is therefore not satisfied as regards the third head of damage. The claim for compensation must therefore be rejected in so far as it seeks compensation in respect of that head of damage.

152 As regards the first and second heads of damage, even if it were established that they are actual and certain and that they were caused by the illegalities established in paragraphs 77, 102 and 129 above, it must be recalled that the annulment of an unlawful act may in itself constitute adequate and, in principle, sufficient compensation for any non-material damage which that act may have caused. That is not, however, the case where the applicant shows that he or she has suffered non-material damage that cannot be entirely repaired by that annulment (see, to that effect, order of 3 September 2019, FV v Council, C‑188/19 P, not published, EU:C:2019:690, paragraph 26, and judgment of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 86).

153 In the present case, the applicant merely claims that the alleged damage is distinct from the unlawfulness of the contested report and that her interests were not taken into account. She does not explain how that damage cannot be entirely repaired by the annulment of the contested report. Her own line of argument even demonstrates the contrary with regard to the second head of damage. The occurrence of that damage presupposes that the contested report remains in the applicant’s personal file. However, the annulment of that report will have the effect of retroactively eliminating it from the legal order (see, to that effect, judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84) and, consequently, from the applicant’s personal file.

154 Finally, as regards the unlawfulness on which the applicant relied in the context of the two new pleas in law and the plea of illegality raised at the hearing (see paragraph 40 above), it is sufficient to recall that it has not been alleged that it caused her any damage whatsoever (see paragraph 140 above).

155 It must therefore be held that the annulment of the contested report constitutes in itself adequate and sufficient compensation for the first and second heads of the damage which the applicant claims to have suffered. The claim for compensation must therefore be dismissed in its entirety.

156 Pursuant to Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his or her own costs, pay a proportion of the costs of the other party.

157 In the present case, since the application for annulment has been upheld and the application for compensation dismissed, EUIPO must be ordered, in addition to bearing its own costs, to pay three quarters of the costs incurred by the applicant and the applicant must bear one quarter of her own costs.

1. Annuls KD’s appraisal report in respect of the 2019 appraisal exercise;

3. Orders the European Union Intellectual Property Office (EUIPO), in addition to bearing its own costs, to pay three quarters of the costs incurred by KD;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> KD v EUIPO (Civil service - Appraisal report - Judgment) [2022] EUECJ T-298/20 (26 October 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T29820.html Cite as: [2022] EUECJ T-298/20, EU:T:2022:671, ECLI:EU:T:2022:671

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