What is a homemade civil servant
Advocate General's Opinion
Advocate General's Opinion
1. The focus of the present appeal proceedings is the question of whether an official retains an interest in legal protection in contesting his assessment if he has become permanently and completely incapacitated after bringing an action against this assessment due to invalidity.
2. In its judgment of 7 February 2007, Gordon v Commission (2), the Court of First Instance of the European Communities came to the conclusion, in accordance with the arguments of the Commission of the European Communities, that this official no longer had an interest in legal protection and that his action was for to be declared inadmissible.
3. The court relies on the case law, according to which a civil servant should only have an interest in contesting an assessment if he still has a career ahead of him, d. that is, if he has not yet finally left the service. According to the court, an official who has been declared permanently incapacitated is retired under the applicable provisions and is presumed to have left the service for good, although he may be reinstated if his state of health so permits. In the view of the court, this possibility alone is not sufficient to establish that an official in such a situation has an existing and present legal interest in contesting his assessment.
4. In the judgment under appeal, the court also rejected the plaintiff's application for damages as inadmissible.
5. In the following I will first explain why, in my opinion, the case law is incorrect, according to which a civil servant should no longer have an interest in contesting an assessment if he has finally left the service.
6. I will then show that this case law, even if it were factually correct, cannot be transferred to the case of an official who has been declared permanently incapable of service because of invalidity, since such an official can be reinstated. I will propose that the Tribunal find that this official has an existing and present interest in challenging his assessment.
7. From this I will conclude that the court made an error of law, so that the judgment under appeal is to be set aside, insofar as the action for annulment has been declared largely settled.
8. I will also argue that the judgment under appeal must be confirmed insofar as it dismissed the action for damages as inadmissible.
9. Finally, I will propose to the Court of Justice that it rule on the appellant's application for challenge and I will explain why I believe that application should be declared well founded.
I - Legal framework
10. The relevant legal framework includes provisions on the assessment of officials and the situation of officials who have been declared incapacitated.
A - The provisions on the evaluation of officials
11. The provisions governing the assessment of officials are set out in the judgment under appeal as follows.
12. According to Article 43 of the Staff Regulations of Officials of the European Communities, as applicable to the present case (3), the qualifications, performance and conduct of officials - with the exception of officials in grades A 1 and A 2 - are regularly, at least but every two years, under the conditions set by the individual organs (Art. 110 of the Statute), an assessment is made.
13. On 26 April 2002 the Commission adopted a decision adopting general implementing rules for Article 43 of the Staff Regulations (4). This introduced a new system of assessment.
14. Due to the transitional regulation in Art. 4 (1) of ADB 43, the assessment of professional development according to Art. 6 of ADB 43 (5) in the first assessment period of the new system covers the period from July 1, 2001 to December 31, 2002.
15. The evaluation period and the promotion procedure are linked to the extent that an official under Article 5 (3) of the general implementing provisions for Article 45 of the Staff Regulations issued by the Commission on April 26, 2002 is promoted if the sum of the merit points which corresponds to the numerical BBE assessment, on the one hand, and the priority points allocated within the framework of the promotion procedure, on the other hand, which the official has accumulated in one or more years, which exceeds the "promotion threshold".
16. In this context, Article 6 (1) of the General Rules for Implementing Article 45 of the Staff Regulations stipulates that the Directorates-General which have awarded an average quota of merit points higher than the Commission average by more than one point for a given grade, for as many priority points will be deducted from the next procedure as they have allocated too many, unless the Directorates-General can substantiate this overrun.
17. The Commission's communication, published in Administrative Communication 99-2002 of 3 December 2002 entitled 'Guide to the 2001-2002 staff appraisal period (transition)' (6), calls on DGs to assess their Personnel must comply with the average value of 14 (top mark 20), and it is stated there that Directorates-General that give a grade on average a mark better than 15 will be penalized by reducing the quota of priority points accordingly, unless the Directorate-General concerned provides evidence of relevant reasons for exceeding the limit.
B - The provisions governing the situation of disabled officials
18. Article 53 of the Statute reads:
“If the Invalidity Committee has determined that an official fulfills the conditions of Article 78 [of the Staff Regulations], he shall become permanently and completely incapacitated on the last day of the month in which the appointment of the appointing authority [(7)] determines that the official is permanently disabled is, ex officio retired. "
19. Article 78 of the Statute provides:
“An official who has been permanently disabled and therefore unable to perform an office during his career is entitled to an invalidity pension under the conditions set out in Articles 13 to 16 of Annex VIII [of the Staff Regulations].
20. Articles 13 to 16 of Annex VIII of the Statute provide:
If the Invalidity Committee recognizes that a civil servant who is not yet sixty-five years of age has become permanently and completely incapacitated during the period in which he is acquiring pension rights and is unable to perform an office of his career with the Communities and the civil servant must therefore resign subject to the provisions of Article 1, paragraph 1, he or she is entitled to a disability pension in accordance with Article 78 of the Staff Regulations for the duration of the incapacity for work.
Entitlement to a pension for incapacity for work arises on the first day of the calendar month following the date of retirement in accordance with Article 53 of the Statute.
If a civil servant no longer meets the conditions for the granting of a pension due to incapacity, he must be assigned to the first post to become vacant in his category or special career which corresponds to his career, provided that he is suitably qualified. If he rejects the post offered to him, he is still entitled to be re-employed in a post in his career group or special career that corresponds to his career if such a post becomes vacant again and he is suitably qualified for it; if he refuses for the second time, he can be dismissed ex officio ...
As long as the former civil servant who is drawing a pension due to incapacity for work has not reached the age of sixty, the institution can have him examined at certain intervals to ensure that he still fulfills the requirements for drawing this pension.
If a former civil servant who is drawing a pension for incapacity for work is re-used in his or in another institution of the Community, the period during which he was drawing that pension shall be taken into account in the calculation of the post-service pension, without being required to make any additional payments is obliged to make contributions. "
II - Facts
21. The relevant facts are set out in the judgment under appeal as follows.
22. The applicant was, at the time when the action was brought, a grade LA 5 official in the Commission's Directorate-General for Translation.
23. On the evening of March 11, 2003, the plaintiff received the BBE for the period from July 1, 2001 to December 31, 2002. On the morning of March 12, 2003, he asked the countersigning officer for an interview in accordance with Article 7 (5) the ADB 43. He then took leave from the afternoon for two and a half days. On the same day, the countersigning official confirmed the said BBE after he had noted there that "it is not possible [to conduct the interview requested by the plaintiff], since he will be on vacation from 12 [March] 2003 in the afternoon" .
24. On March 25, 2003, the plaintiff spoke to the countersigning officer. On the same day, the Joint Evaluation Committee (8) was referred to the applicant at the request of the plaintiff. On April 11, 2003, the PEA issued its opinion stating that the PEA “determines that the formal interview did not take place, and therefore [recommends] the appellate assessor that the formal interview did not take place to invite the countersigning officials to conduct the aforementioned formal interview ”. The plaintiff spoke again with the countersigning officer on April 14, 2003.
25. On April 25, 2003, an interview took place between the plaintiff and the appeal assessor. On April 28, 2003, the appellant made his decision. He confirmed the BBE in question and stated on the one hand that "... it was noted that [the plaintiff] requested a formal interview on March 12 , [that] this interview was due to the vacation requested by the person concerned ... and in view of the original end date for the completion of the assessment process (March 15, 2003) did not take place ”, and secondly that“ [d] after two interviews with the countersigning officer took place on March 25, 2003 and April 14, 2003 [ to have]". In a memo dated the same day, the appellant communicated his decision to the chairman of the PEA. In that note he stated the reasons why the formal interview requested by the plaintiff could not take place and added that "the opinion of the countersigning official ... was made taking into account these circumstances, the reasons given by the person concerned and after hearing the immediate superior [ has been]". He also noted that "[two] formal meetings ... took place with the countersigning officer on March 25, 2003 ... and April 14, 2003".
26. On July 25, 2003, the applicant submitted a complaint under Article 90 of the Staff Regulations against the decision of April 28, 2003 confirming his BBE. This complaint was rejected by the AB by decision of 11 December 2003, which was communicated to the plaintiff on 2 February 2004 (9).
27. After the Invalidity Committee had determined on February 1, 2005 that the plaintiff “has permanently become completely incapacitated and therefore cannot hold an office in his grade”, the AB ruled on February 15, 2005 that the plaintiff “retires and is receiving a pension for incapacity under Article 78 paragraph  ... of the Staff Regulations ". This ruling became effective on February 28, 2005.
III - The proceedings before the court and the motions of the parties
28. By application received by the Court Registry on 7 May 2004, the applicant brought an action for annulment of the contested decision and for damages.
29. On 1 March 2005 the Commission applied for the main action to be declared annulled on the ground that the applicant had been retired on account of permanent full incapacity. She also denied the admissibility of the action for damages. The plaintiff commented on this application on April 6, 2005.
30. By order of June 10, 2005, the court reserved the decision on the application for settlement and on the costs for the final judgment.
31. The plaintiff, in a written statement received by the Court Registry on October 6, 2005, requested that the written procedure be reopened and that new evidence be admitted. The Commission did not comment on this request. The statements and facts put forward by the applicant in support of his claims were provisionally put on file and the decision on admissibility was reserved.
32. The parties negotiated orally at the hearing on May 31, 2006 and answered the questions put by the General Court. The Commission also produced the documents which it had been asked to produce.
33. Before the hearing was closed, it was decided to stop the plaintiff from submitting statements on the number of pages he translated during the period of the BBE at issue. The plaintiff submitted his statements in due time. The Commission issued an opinion on this on June 14, 2006.
34. The hearing was closed by order of the President of the Third Chamber of the General Court on June 20, 2006.
IV - The judgment under appeal
35. The court ruled on the action for annulment and on the action for damages and finally on the plaintiff's applications for measures of organization of procedure.
A - The action for annulment
36. The court ruled that the main action was settled and gave the following reasons:
"27 On the one hand, it should be pointed out that, although the time at which the action is brought must be taken into account when examining the interest in legal protection on which the admissibility of an action depends [(10)], this cannot, however, prevent the court from filing an action for to declare done if the plaintiff, who originally had an interest in legal protection, has lost all personal interest in the setting aside of the contested decision due to an event that occurred after the action was brought. In order to be able to continue an action to challenge a decision, the plaintiff must have retained a personal interest in this annulment [(11)]. In addition, according to settled case law, a plaintiff must demonstrate an existing and present interest in the repeal of the contested act, so that if the interest he is asserting concerns a future legal situation, he must prove that the impairment of this situation has already been established [(12) ].
28 On the other hand, it should be borne in mind in legal actions against a BBE that the BBE is an internal document that is primarily intended to provide the administration with regular information on how its officials are performing their official duties [(13)], and therefore to the public plays an important role in the development of the civil servant's career, particularly in terms of transfer and promotion. Thus, the BBE basically affects the interests of the appraised only insofar as he still has a leaf path ahead of him, i.e. H. until you finally leave the service. Therefore, after this departure, the civil servant has no legitimate interest in bringing or continuing a lawsuit against his BBE, unless he can prove a special circumstance that justifies a current personal interest in the cancellation of the BBE [(14)].
29 The Commission submits that, after being retired under Article 78 of the Staff Regulations for total permanent incapacity, the Commission left the service for good and, according to the abovementioned case-law, therefore lost interest in pursuing his action. According to the plaintiff, however, this case law cannot be invoked in the present case for two reasons. First, it is not a question of a permanent resignation from the service since, under Article 14 of Annex VIII to the Staff Regulations, he can be reinstated as soon as his state of health allows it. Second, his retirement was compulsory and only took place after the present action was brought. In those circumstances, his right to legal protection must take precedence over other considerations and enable him to obtain a judgment on the legality of the contested BBE. So he still has a personal and current interest in the abolition of this BBE.
30 As regards, first, the question of the definitive nature of leaving the service in the event of retirement due to permanent total incapacity for work, it should be noted that, according to Art.14 of Annex VIII of the Statute there is the possibility of reinstatement of a civil servant who has been retired due to incapacity, but that permanent full incapacity is intended to end the career of the civil servant concerned, according to the will of the legislature. Article 53 of the Staff Regulations provides: “If, after the Invalidity Committee has determined that an official fulfills the requirements of Article 78, he shall become permanently full on the last day of the month in which the [AB] ruling determines that the official is permanently full is incapacitated, ex officio retired. 'In addition, Art. 47 of the Statute counts any retirement, including that based on permanent full incapacity, to the reasons for a permanent withdrawal from the service. The above-mentioned incapacity for work is therefore considered by the legislature with regard to the final character of the associated departure from service as well as other reasons for the departure, the final character of which is beyond doubt, such as dismissal on request, dismissal due to inadequate professional performance or removal from service .
31 Consequently, according to the system of the Staff Regulations, retirement due to permanent full incapacity within the meaning of Articles 53 and 78 is in principle regarded as the end of the civil servant's career. It thus differs from sick leave under Article 59 of the Staff Regulations, which does not affect the continuity of the career of an official who is temporarily unable to perform his duties.
32 According to the abovementioned case-law, the applicant's retirement under Article 78 of the Staff Regulations affects his interest in the annulment of the contested BBE, since his career with the Commission was in principle definitively interrupted.
33 That finding is not invalidated by the applicant's argument based on a possible reinstatement under Article 14 of Annex VIII to the Staff Regulations. Indeed, an applicant must show an existing and present interest in the annulment of the contested act and, if the interest he relies concerns a future situation, he must show that the prejudice to that situation has already been established. However, the applicant's reinstatement in the service of the Commission is merely a possible event, the occurrence of which is uncertain. It is therefore a purely hypothetical interest which is not sufficient to establish that the applicant's legal position would be affected in the absence of the contested BBE being annulled [(15)].
34 Secondly, as regards the fact that the applicant's retirement was compulsory and took place only after the present action was brought, it should first be noted that the court has already ruled that an official who, following his dismissal for inadequate professionalism Services or due to his removal from the service, which has become definitive after a lawsuit, has left the service, has no legitimate interest in the suspension of his assessment [(16)]. Thus, it emerges from the case law that the question of whether leaving the service was voluntary or involuntary is irrelevant for the question of whether there is an interest in legal protection. Next, with regard to the date of departure from the service in relation to the date on which the action was brought, it should be noted that, according to the above paragraph 27 cited case law, the fact that the interest in legal protection ceased to exist only after the action was brought does not preclude the court from declaring the main action to be settled [(17)].
35 Thus, the change in the contested BBE sought by the applicant would in principle have no effect on his career, which ended on 28 February 2005. It is therefore up to the plaintiff to demonstrate the existence of a particular circumstance which shows that there is still a personal and current legal interest in the action for avoidance [(18)].
36 Although the applicant disputes the definitive nature of his resignation from the service, he does not raise any particular circumstance within the meaning of Decision N v Commission above. Rather, he argues that his interest in the annulment of the contested BBE must be recognized in order to ensure that his right to effective judicial protection is respected.
37 Suffice it to say in that regard that the right to effective judicial protection comprises only the right to refer to the Court of First Instance with acts of the Community institutions which affect the interests of the applicant and thus adversely affect him [(19)]. In the present case, however, in view of his retirement, and as long as he is not reinstated, the applicant is not adversely affected by either the contested decision or the contested BBE. Thus, without it being necessary to decide at present on the relevance of the plaintiff's argument in the event that this argument is used in support of a lawsuit in the event that the plaintiff is reinstated, it must be stated that the right to effective judicial protection is the Claimant cannot give the right to the court to rule on the present appeal.
38 It follows from all of the foregoing that the applicant has not provided evidence of an existing and current interest in legal protection, so that a decision no longer has to be made on the application for annulment of the BBE in question.
39 As regards the requests to declare the ADB 43 and the transitional guide or the current provisions in force to be unlawful, it should be noted that, as the plaintiff himself explains, they are objections of unlawfulness raised in the context of the application for challenge. So there is no longer any need to decide. "
B - The action for damages
37. The court dismissed the action for damages as inadmissible on the following grounds:
“42 According to Article 21 of the Statute of the Court of Justice, which is applicable to proceedings before the General Court pursuant to Article 53 (1) of that Statute, and Article 44 (1) (c) of the Rules of Procedure of the Court of First Instance, an application must specify the subject-matter of the dispute and a brief description of the pleas in law. In order to meet those requirements, an application seeking compensation for damage allegedly caused by a Community institution must indicate the circumstances which enable the conduct of which the applicant is alleged to have been carried out against the Community institution to be ascertained and the reasons why According to the plaintiff, there is a causal connection between this behavior and the alleged damage, as well as the type and extent of this damage. On the other hand, an application aimed at any kind of compensation lacks the necessary certainty and is therefore to be regarded as inadmissible [(20)].
43 In the present case, the applicant confines himself to a claim for compensation for the damage caused to his career, health and well-being, without specifying the amount and without specifying with sufficient precision the circumstances which determine its extent Allow damage. Indeed, his application contains no information other than the statement that '[d] he manifest errors of assessment and the misuse of powers of the countersigning official… seriously damaged the applicant's career prospects' and that' [d] his situation… his morals and has harmed his health, this harm being added to that which has been done to his career prospect '.
44 Although the Court of First Instance has already found that in special circumstances it is not essential to state in the application the exact extent of the damage and the amount of the damages sought [(21)], it should be noted in the present case that the plaintiff said that Has neither demonstrated nor even presented the existence of such circumstances [(22)].
45 With regard to the non-pecuniary damage, it should be noted that, apart from the complete lack of a damage calculation, the plaintiff has not enabled the court to assess the extent and nature of that damage. However, whether the request is made to replace the non-pecuniary damage symbolically or to obtain specific compensation, it is up to the plaintiff to specify precisely the nature of the alleged non-pecuniary damage in relation to the conduct of the Commission complained of and, furthermore, the entire damage, if only that approximately, to be measured in detail [(23)]. "
C - Regarding the applicant's motions for the adoption of measures of organization of procedure
38. For the above reasons, the Court concluded that the applicant's requests that the Commission should have a document containing the minutes of the PEA meetings, the two most favorable and least favorable BBE of the officials in his unit for the period 2001-2002 and one document submit to the official quantitative standards of the translation departments for the period mentioned, are irrelevant to the decision of the legal dispute.
V - The appeal
39. By pleading dated 6 April 2007, which was received by the Court Registry on the same day, the appellant appealed against the judgment under appeal. The Commission submitted its response on 12 June 2007. The appellant has not asked to reply. The parties did not request an oral hearing.
40. The appellant claims that
“I) set aside the [contested judgment] and rule on [the] matter ...;
ii) to confirm that the appellant has an own interest in the assessment of his professional development, which is independent of the interest of the administration in that assessment;
iii) Recognize that disability is by its nature reversible and so viewed and treated by the Medical Service of the Commission ...;
iv) grant the appellant a right to judicial protection in relation to [his BBE];
v) to allow the claim for damages and to award the appellant 1.5 million euros in damages;
vi) order the Commission to pay the costs ”.
41. The Commission claims that the appeal should be dismissed and that the appellant should be ordered to pay all of the costs.
A - On the legal protection interest in contesting the BBE
42. The appellant submits that the judgment under appeal contains errors of law insofar as the Court of First Instance concluded, first, that BBE was of interest to the official appraised only if he still had a career ahead of him, and secondly, the opinion argued that permanent full incapacity for work equated to a permanent resignation from the service and, thirdly, decided that the right to effective judicial protection does not confer the right to bring an action against the contested decision.
43. The Commission states that the appellant's complaints against the judgment under appeal are unfounded. She argues that the court was right to take the view that the case law, according to which a civil servant no longer has a legitimate interest in contesting an assessment after the end of his career, is applicable to a BBE that, as can be seen from Art. 53 and 78 of the Statute, it emerges that permanent full incapacity for work has the effect that the person concerned is ex officio retired, and that ultimately the right to effective judicial protection only allows the contestation of an adversary legal act. On the latter point, the Commission also submits that the General Court did not rule out the possibility that the appellant might later have a legitimate interest in contesting the contested decision if he were to be reinstated, and that the right to effective judicial protection was preserved since the judgment under appeal was given after the appellant had been able to present his point of view in full proceedings.
44. The arguments put forward by the parties in the context of the present appeal thus raise two questions. The first question concerns the validity of the case-law according to which an official no longer has a legitimate interest in contesting an appraisal such as the BBE once he has left the service of the Community body which produced the appraisal. The second question is whether this case law, provided it is factually correct, applies to an official who is permanently and completely incapacitated.
45. As regards the first question, the judgment under appeal is based on the case-law of the General Court, according to which an official no longer has a legitimate interest in contesting an assessment, unless he can demonstrate the existence of one, once he has left the service particular circumstance from which a personal and present interest in the cancellation of this assessment emerges (24). According to this case-law, the mere wish of an official for a realistic assessment on an intangible level, on the one hand, and in the event that he needs such an assessment when looking for a new job, on the other hand, does not constitute evidence of the existence of an interest in legal protection.
46. I disagree with that case-law, and therefore also with the relevant part of the judgment under appeal, since it amounts to assessing the official's rights with regard to the content of his assessment solely on the basis of the usefulness of that assessment for the Community institution which produced it.
47. However, it is common ground that an assessment such as the BBE constitutes an assessment of the ability, performance and conduct of the service of an official, as is apparent from Article 43 of the Staff Regulations. It is therefore a value judgment that is given at regular intervals about how the judged officer has carried out the tasks assigned to him.
48. Whilst such a document is intended to enable the superior service to compare the merits of the candidates for a possible promotion or transfer and to make decisions about the career development of the official being assessed, it does not, in my opinion, infer that the assessment is can only complain to an official if he or she is continuing his career with the body that made the assessment.
49. Since, on the one hand, the appraisal is a value judgment on how the civil servant has carried out his duties, it also affects the right of every civil servant to a fair and appropriate appraisal, which flows from personal rights.
50. Such a claim should, in my opinion, be recognized since a person, regardless of his or her position as a person in society, is also measured by what he or she is doing. In this respect, work occupies a dominant place in the life of the individual. A civil servant is entitled to a fair and fair appraisal of his work as his performance is expressed and recorded through that appraisal. All of this is all the more true as the assessment of the way in which someone has fulfilled his task is not only to be regarded as a pure description of the work performed in the relevant period, but also includes an assessment of the human qualities that the person concerned has in the Has demonstrated his professional activity.
51. In that regard, an assessment cannot be regarded as a mere document for filing, not only from the point of view of the Community institution, because it is no longer of interest on the day the official leaves the service. In my opinion, a civil servant has a right, which flows from personal rights, to the fact that the way in which he has fulfilled his task is properly reproduced, since this activity represents an important part of his life and is recorded with the assessment.
52. Second, an official may wish to use that assessment when looking for future employment. The fact that this is an internal document should not prevent this use. Since such a document reveals the activity of the person concerned and the way in which he has carried out his task, it can be a very important part of a résumé, which provides information about acquired experience and professional skills. It is also known that regular appraisals are made of Community officials, so an official looking for a new job may be asked by a prospective employer to provide his or her appraisals.
53.For these two reasons, I am of the opinion that the case law, according to which an assessment such as the BBE only affects the interests of the appraised person to the extent that he still has a career ahead of him, i.e. has not yet finally left the service, is flawed . In my opinion, that error of law ought to suffice to justify the setting aside of the judgment under appeal, in so far as it declares the main action to be settled.
54. With regard to the second question, I am of the opinion that the aforementioned case law - even if it were factually correct - could not lead to a decision of the court according to which an official who is permanently disabled for that reason alone has no legal interest in the May have contesting his assessment.
55. Even if an official who finds himself in this position is ex officio retired, as provided for in Articles 53 and 78 of the Staff Regulations, the situation is reversible, as evidenced by the Articles 13 to 16 of Annex VIII of the Statute. Those articles expressly provide that the official's activity in his Community institution is only suspended and that this depends on the continuation of the incapacity, which can be checked regularly.
56. The situation of an official who is permanently disabled is thus different from that of an official who has reached retirement age or who has been dismissed on request or ex officio, since there is a possibility that he may return to his duties with the Community institution at a later date.
57. To transfer to the case of such an official the case-law on the lack of a legitimate interest in contesting an assessment in the event of a permanent resignation from the service of the Community institution seems strange, since it means that the possibility of a return to work and thus recovery the person concerned is to be disregarded. In other words, that official is being told that he has now been struck off the staff list and that the administration believes that he has no chance of recovering.
58. In the judgment under appeal, the applicant's lack of interest in legal protection is derived solely from the determination of his permanent total incapacity for work, without the investigation being continued and examining whether, in view of the specific situation of the person concerned, a resumption of his activity would be conceivable. The judgment under appeal is a further step on the way to a restrictive understanding of the concept of legal protection interest compared to the view in a comparable context, such as in the Ross v Commission decision.
59. In that order, the General Court found, in relation to Mr Ross's submission, which challenged the definitive nature of his resignation due to permanent total incapacity, that Mr Ross had not put forward any argument in favor of reinstatement seem possible. It was also based on the fact that, in the opinion of the Invalidity Committee, no medical follow-up was necessary because of the unchangeable clinical picture of the person concerned (26).
60. If, in the present case, as in the Ross v Commission order, the General Court had examined the applicant's specific situation, the application could have been declared admissible, since the applicant was born on 4 February 1955 and the file shows that the Invalidity Committee with a decision of February 7, 2005 took the view that the situation of the person concerned should be reviewed after two years. The Invalidity Committee also decided in 2007 that the recognition of the disability of the person concerned would only be extended by one year.
61. Furthermore, the hypothetical nature of the resumption of activity as such does not constitute an insurmountable legal obstacle to the recognition of an existing and present legal protection interest.
62. Evidence of this is provided by the case-law on actions against decisions fixing future pension rights of Community officials. According to that case-law, a civil servant is entitled to contest such a decision, although his retirement and thus the exercise of these rights at the time of the action is an uncertain and hypothetical event.
63. The Court took the view that in such a case an official could appeal against an order affecting his future financial situation because he had a legitimate, existing and present interest in judging an uncertain element of his legal position at this point in time to be clarified (28). As the Court continues, if such an action were inadmissible, the plaintiff would be denied knowledge of his entitlements until he retired, and he would be left in the dark about his financial situation until that point, so that he would be left unaware of his financial situation it would not be possible to immediately take appropriate personal precautions to secure his future (29).
64. That case-law can be applied to the present case. It can be recognized that an official who is permanently disabled has an existing and present interest in having the Community judiciary review the assessment which may determine his future career so that he may decide to take an alternative route if necessary.
65. That transfer also appears to me to be justified because otherwise an official who is permanently disabled, such as the appellant, would otherwise be prevented from contesting his assessment under satisfactory conditions.
66. Admittedly, as the Commission stated in its answer to a written question from the Court of First Instance, the reinstatement of the appellant could be regarded as an 'essential new fact' within the meaning of the case-law according to which an official should be removed from the administration if such a fact existed may request the review of a measure that has become definitive (30). According to that case-law, if the appellant were reassigned to a post at the Commission he could ask the administration to review the appraisal at issue and challenge any rejection of that application before the Community judicature.
67. A review of the content of this assessment, which was carried out with a time lag - possibly only after several years? could be carried out would, however, certainly not include the same guarantees as if the appellant were allowed to challenge the assessment once he had received it. There is indeed a risk that evidence which might be necessary to resolve the case will no longer be available if the Community judicature does not have to rule on it until several years after it has been drawn up.
68. In the light of the foregoing, I take the view that the General Court, in its conclusion that the plaintiff had no legal protection interest in contesting the contested decision simply because of his permanent full incapacity, also committed an error of law which justified the annulment of the contested judgment.
B - The action for damages
69. The appellant complains that the General Court rejected his claim for damages on the ground that the nature and extent of the damage were not specified, although that claim and the outcome of the dispute on the merits were two separate issues.
70. That separation is necessary because the appellant's situation has evolved steadily since his complaint against BBE in July 2003. The promotion committee had not yet met in July 2003 for that year, so that the appellant did not know whether he would be promoted. In addition, he was not yet retired due to incapacity when he filed a lawsuit in July 2004. Finally, at the time the appeal was drafted, he did not know whether and when he could be reinstated.
71. In view of the particular circumstances of the case, the judge should therefore not examine the claim for damages until after it has ruled on the merits, so that the judgment under appeal must be set aside pending such a decision with regard to the rejection of that claim.
72. If the Court of Justice declares the appellant's appeal admissible and, in the proceedings on the substance of the matter, finds that the appellant has suffered a grave injustice both in terms of the content of his assessment and in the course of the proceedings and that his career has been irreparably damaged the appellant is therefore entitled to EUR 1.5 million.
73. The Commission submits that the appellant does not explain why the reasons on which the General Court rejected his application as inadmissible were incorrect. The appeal is therefore inadmissible or manifestly unfounded.
74. I share the Commission's view. The appellant's complaints against the judgment under appeal in relation to the claim for damages cannot be used to show that the court erred in law or misinterpreted the said claim.
75. The Court of First Instance rightly pointed out that an application for compensation for damage allegedly caused by a Community institution must set out the damaging circumstances, the damage caused to the applicant and the causal link between those circumstances and the damage alleged would have to. It rightly stated that the applicant failed to comply with that requirement, simply stating in his application that "[d] he manifest errors of assessment and the misuse of powers of the countersigning official ... seriously harmed the applicant's career prospects. "And that" [t] his situation ... has damaged his morale and health, adding that damage to that which has been done to his career prospect ".
76. The Court of First Instance also stated that the plaintiff had not explained why it was not possible for him to determine the exact extent of his damage and to measure it.
77. As the Commission points out, the appellant's observations on this point constitute new elements in the context of the present appeal which cannot show that the judgment under appeal was erroneous in law. The appeal is therefore obviously unfounded, insofar as it challenges the rejection of the claim for damages in the judgment under appeal.
78. In addition, the request for compensation of EUR 1.5 million in the event that the General Court examines the substance of the dispute constitutes a new request within the meaning of Article 113 of the Rules of Procedure of the Court of Justice is to be declared inadmissible.
C - On the consequences of setting aside the judgment under appeal
79. I propose that the Court of Justice rule on the application for the annulment of the contested decision under Article 61 of the Statute of the Court of Justice, according to which, if the appeal is well founded, the Court of Justice itself can give final judgment when it is ready for decision .
80. The appellant seeks the annulment of the contested decision which rejected his appeal against the decision of 28 April 2003 confirming his BBE for the period from 1 July 2001 to 31 December 2002.
81. In support of his claims in these proceedings, the appellant relies on three pleas, the first of which is based on an infringement of essential procedural requirements and the rights of the defense.
82. In the context of this ground of appeal, the appellant relies on the fact that the internal review procedure for contesting his BBE provided for in GIP 43 resulted in several violations of the law. In particular, the second stage of this procedure, which included a review of the formal and material conditions of the BBE by the PEA, had not been observed.
83. The PEA's examination was limited to the procedural aspect without going into the facts. That committee found that the formal conversation with the official who countersigned the BBE had not taken place and therefore recommended that this conversation be held. The appellant's file was then not returned to the PEA so that the PEA could also decide whether the appraisal had been carried out fairly, objectively and in accordance with customary standards of appraisal.
84. That omission is a serious irregularity which renders the internal review process flawed. On the one hand, because of its composition, the PEA is the only review body in which staff members with the same function as the appellant could have examined its assessment. On the other hand, the opinion of the PEA has a great influence, since the appellant has to justify his decision if he deviates from this opinion.
85. The Commission observes that the appellant cannot argue in his favor that the PEA confined itself to finding that the formal discussion with the countersigning BBE official did not take place because the appellant, in turn, failed to contact the PEA to announce that this conversation took place on March 25, 2003.
86. I consider that the appellant's argument is well founded and that the contested decision is based on an infringement of an essential rule of procedure. In doing so, I am based on the provisions of ADB 43, which are authoritative for the internal review procedure for contesting a BBE.
87. According to those provisions, the BBE of an official such as the appellant is drawn up by his head of unit as assessing official and by his director, who countersigns the assessment. This report is sent to the appraised official, who has five working days to approve the content of the appraisal and to sign or contest it. If the officer does not agree with his BBE, he informs the assessor of this and explains to him that he wishes to have a conversation with the countersigning officer. The latter must conduct this conversation within five working days.
88. According to Article 7 (5) of ADB 43, the countersigning officer amends or confirms the assessment after this interview and transmits it again to the person concerned. If the appointee disagrees with the countersigning officer's decision, he or she can ask the officer to refer the matter to the PEA.
89. The PEA consists of a Chairperson with the rank of Director and four other members, including two staff representatives appointed by the Central Staff Committee. Art. 8 para. 5 of ADB 43 defines the task of the PEA as follows:
“The task of the committee is not, like the assessing officer, to evaluate the job holder's work; rather, it checks whether the assessment was carried out fairly, objectively and in accordance with the usual assessment criteria. He also checks whether the procedures (interview, deadlines, etc.) have been properly adhered to. ... "
90. The PEA gives its opinion on this within ten working days after the assessment has been sent to it. The effect of this statement is described in Art. 8 Para. 7 of ADB 43 as follows:
“The opinion of the evaluation committee will be communicated to the post holder and the evaluating and countersigning officer; it is sent to the appellant. The latter confirms or changes the assessment within three working days ... and sends it to the post holder. If the appellant deviates from the recommendations in the opinion of the [PEA], he must justify his decision. ... "
91. Two conclusions can therefore be drawn from those provisions which are relevant to the resolution of the present dispute. On the one hand, the opinion of the PEA must not only cover compliance with the procedural rules, but also the objective and fair character of the assessment. On the other hand, this opinion is of great importance, since the appellant must justify his opinion if it deviates from the stated opinion.
92.In the present case, however, it is common ground that the PEA did not comment on the content of the contested assessment. In his opinion, which was forwarded to the appellant on April 11, 2003, he stated that the formal interview with the countersigning officer, as provided for in Art. 7 of GIP 43, should the appraised not agree with the content of his BBE , did not take place.
93. It seems logical to me that after making that finding, the PEA did not examine the content of the assessment, since it could rightly assume, on the one hand, that the interview would actually take place and that the procedure would thus be regulated, and on the other hand, the countersigning official followed up this conversation had the opportunity to change the BBE at issue. In other words, in the absence of a formal discussion with the countersigning officer, the content of the BBE for the PEA was not final.
94. Thus, in his decision of April 28, 2003, the appellant could not comment on the internal review requested by the appellant until the PEA had commented on the content of the BBE at issue.
95. The appellant did not take this into account in the abovementioned decision, stating that the formal interview with the countersigning official took place on March 25, 2003 and then on April 14, 2003, i.e. “before and after the PEA meeting on 7 March 2003” April 2003 ”. However, this finding was not sufficient for the appellant to take a position. Either he established that the formal discussion - contrary to the statement of the PEA in its statement - took place on March 25, 2003, and he had to ask the PEA to comment on the matter. Or the appellant was of the opinion that the formal interview, following the recommendation of the PEA, had taken place on April 14, 2003, and he also had to seek the opinion of that committee on the content of the assessment confirmed by the countersigning officer after that interview.
96. By doing so in his decision of April 28, 2003, the appellant treated the appellant's right of review before the PEA as a purely formal stage. However, as the appellant points out, this right of review is important because, on the one hand, the PEA is the only body of the appraisal procedure made up of staff representatives and, on the other hand, the appellants' opinions must be taken into account by the appellant.
97. This shows that the procedural error mentioned could in fact affect the appellant's rights.
98. The Commission replies that the appellant cannot invoke that irregularity since he himself caused it by failing to inform the PEA that a formal meeting with the countersigning official took place on 25 March 2003 have.
99. That cannot be accepted for the following reasons. Firstly, the assessment in question is retransmitted to the person concerned in accordance with Art. 7 (5) of ADB 43 after the formal discussion and after its confirmation or change. The conduct of this formal conversation should therefore emerge from the retransmission of the contested assessment. In addition, the PEA is referred to in accordance with Art. 7 Paragraph 6 of ADB 43 after the appraised has asked the countersigning officer to do so.
100. It is therefore hardly conceivable that the PEA's finding that the formal conversation with the appellant did not take place can only be traced back to the statements made by the latter in his request for referral to the PEA.
101. Second, the fact that a formal meeting took place on 14 April 2003, that is to say after the PEA's opinion recommending that the meeting be held, contradicts the position taken by the Commission.
102. In the light of the foregoing, I consider that the contested decision has breached a procedural rule which is prejudicial to the appellant's interests and must therefore be set aside.
D - cost
103. If, as I suggested, the appellant wins as to the admissibility and the merits of his request for annulment of the contested decision, since these two points constitute the essential parts of the present proceedings, I propose that the Court of Justice give the Commission pursuant to Article 122 order the Rules of Procedure to pay all of the costs.
VI - result
104. After all that I propose to the Tribunal,
- Set aside the judgment of the Court of First Instance of the European Communities of 7 February 2007, Gordon v Commission (T ‑ 175/04), insofar as it ruled that the main action has been settled;
- dismiss the appeal against this judgment as obviously unfounded, insofar as this judgment dismisses the action for damages as inadmissible;
- annul the Commission's decision of 11 December 2003 rejecting the complaint against the decision of 28 April 2003 confirming the appellant's assessment of the appellant's professional development for the period from 1 July 2001 to 31 December 2002;
- order the Commission of the European Communities to pay all of the costs.
(2) - T ‑ 175/04 (ÖD 2007 ECR, I ‑ A ‑ 0000 and II ‑ 0000, hereinafter: judgment under appeal).
(3) - Hereafter: the Statute.
(4) - Hereinafter: ADB 43.
(5) - 'BBE'.
(6) - Hereafter: Transitional Guide.
(7) - Hereafter: AB.
(8) - 'PEA'.
(9) - Hereafter: the contested decision.
(10) - Judgment of the Court of Justice of 16 December 1963, Forges de Clabecq v High Authority (14/63, ECR 1963, 769, 799) and order of the General Court of 30 November 1998, N v Commission (T ‑ 97 / 94, ÖD 1998 ECR, I ‑ A ‑ 621 and II ‑ 1879, paragraph 23).
(11) - Judgments of the General Court of 24 April 2001, Torre and Others v Commission (T ‑ 159/98, ÖD 2001 ECR, I ‑ A ‑ 83 and II ‑ 395, paragraph 30) of 31 May 2005, Dionyssopoulou v Council (T ‑ 105/03, ÖD 2005 ECR, I ‑ A ‑ 137 and II ‑ 621, paragraph 18), and of 8 December 2005, Rounis v Commission (T ‑ 274/04, ÖD ECR 2005, I ‑ A ‑ 407 and II ‑ 1849, paragraphs 21 and 22).
(12) - Judgments of the General Court of 17 September 1992, NBV and NVB v Commission (T ‑ 138/89, 1992 ECR II ‑ 2181, paragraph 33), of 14 April 2005, Sniace v Commission (T‑ 141/03, 2005 ECR, II-1197, paragraph 26), and order of the General Court of 17 October 2005, First Data and Others v Commission (T-28/02, 2005 ECR, II-4119, paragraph 42 and 43).
(13) - See, to that effect, judgments of the Court of Justice of 3 July 1980, Grassi v Rat (6/79 and 97/79, ECR 1980, 2141, paragraph 20), and of the General Court of 28 May 1997, Burban v Parlament (T ‑ 59/96, ECR 1997, I ‑ A ‑ 109 and II ‑ 331, paragraph 73).
(14) - See, to that effect, Order N v Commission, paragraph 26, and Dionyssopoulou v Council, paragraph 20.
(15) - See, to that effect, the judgment of the Court of Justice of 21 January 1987, Stroghili v Court of Auditors (204/85, 1987 ECR, 389, paragraph 11).
(16) - Order N v Commission (paragraph 27) and judgment of the General Court of 21 February 2006, V v Commission (T ‑ 200/03 and T ‑ 313/03, ÖD 2007 ECR, II ‑ A ‑ 2‑ 57, paragraph 184).
(17) - Judgment of the General Court of 13 December 1990, Moritz v Commission (T ‑ 20/89, 1990 ECR II ‑ 769, paragraph 16), and judgments in Dionyssopoulou v Council (paragraph 18) and Rounis v Commission (Paragraph 21).
(18) - Decision N v Commission, paragraphs 26 and 27.
(19) - See, to that effect, orders of the Court of Justice of 1 October 2004, Pérez Escolar v Commission (C ‑ 379/03 P, 2004 ECR, I-6181, paragraphs 41 and 42), and of the General Court of 2 June 2003, Forum 187 v Commission (T ‑ 276/02, ECR 2003, II ‑ 2075, paragraph 50).
(20) - Judgment of the Court of Justice of 2 December 1971, Zuckerfabrik Schöppenstedt v Council (5/71, 1971 ECR 975, paragraph 9) and orders of the General Court of 1 July 1994, Osório v Commission (T ‑ 505 / 93, ÖD 1994 ECR, I ‑ A ‑ 179 and II ‑ 581, paragraph 33), and of 15 February 1995, Moat v Commission (T ‑ 112/94, ÖD 1995 ECR, I ‑ A ‑ 37 and II-135, paragraph 32).
(21) - Judgments of the General Court of 10 July 1990, Automec v Commission (T ‑ 64/89, 1990 ECR II-367, paragraphs 75 to 77) and of 20 September 1990, Hanning v Parliament (T ‑37/89, ECR 1990, II ‑ 463, paragraph 82).
(22) - See, to that effect, Osório v Commission (paragraph 35) and Moat v Commission (paragraph 37).
(23) - Order in Moat v Commission, paragraph 38, and judgment of the General Court of 29 January 1998, Affatato v Commission (T ‑ 157/96, ECR 1998 ECR, I ‑ A ‑ 41 and II ‑ 97, paragraphs 23). 38).
(24) - Orders of the General Court N v Commission (paragraph 26) and of 28 June 2005, Ross v Commission (T ‑ 147/04, ECR 2005 ECR, I ‑ A ‑ 171 and II ‑ 771, paragraph 27) ).
(25) - Decisions N v Commission (paragraph 30) and Ross v Commission (paragraphs 29 and 30).
(26) - Order Ross v Commission, paragraphs 31 and 32.
(27) - Judgments of 1 February 1979, Deshormes v Commission (17/78, ECR 1979, 189, paragraphs 10 to 12) and of 31 May 1988, Rousseau v Court of Auditors (167/86, ECR 1988 , 2705, paragraph 7).
(28) - Ibid.
(29) - Deshormes v Commission, paragraph 11.
(30) - Judgment of 15 May 1985, Esly v Commission (127/84, 1985 ECR 1437, paragraphs 10 and 12) and order of the General Court of 25 March 1998, Koopman v Commission (T ‑ 202 / 97, ECR 1998 ECR, I ‑ A ‑ 163 and II ‑ 511, paragraph 23).
(31) - In the present case, for example, the General Court asked the Commission to produce official documents relating to the number of officials in grade LA 5 in unit EN.3 during the assessment period and the results of the groupings of officials in the applicant's unit.
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