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Case-Law - 2008, April 24

Case-Law

The 2008 CDR exercise is well under way. To help answer your questions Union Syndicale and CONF-SFE have already issued a flyer full of useful information about procedures. We are now publishing this second flyer which contains details of relevant case-law concerning CDR.

In any case, if you need help or advice at any stage in the procedure contact either Union Syndicale (53729 or e-mail REP PERS OSP UNION SYNDIC BX) or CONF-SFE (63127 or e-mail REP PERS OSP SFE)

More information on case-law can be found in the CURIA database:

http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en

It is worth looking at these judgements and maybe using them in your CDR dialogues, appeals and complaints.

1. TIME LIMITS

CDR time limits are set down and are strict. If you do not respect the limit is possible that your CDR may be closed without taking your view into account. DGs are often understanding in this regard, but it's worth being careful!

If you cannot meet the time limits, article 7 of the General Implementing Provisions (GIP) foresee that the time limit can be suspended in the case of a justified absence of the official, so as not to deprive him or her of the time to think about what action to take. Practically speaking, if you are ill, no-one can oblige you to take part in a dialogue, even by phone, or even to validate your report. It's up to you if you want to accept such a procedure.

Problems? The judgement in the BAUWENS case of 15 December (T-154/04, Bauwens/Commission, point 41) confirms the principle of suspension of time limits:

«41- The suspension of the time limits foreseen by the footnote relating to article 7 paragraph 4 of the GIP contributes to the realisation of this objective. In fact, it follows from that note that the time limits foreseen, notably in article 7 paragraphs 5 and 6 of the GIP must be adapted to the real possibilities that the person has to meet his obligations under these measures and that these time limits can be suspended for a short period in case of duly justified absence, mission or in case of force majeure. »

2. TARGET AVERAGE

This target average (fixed at 14.65 in 2008) is supposed to avoid inflation in marks. It is calculated by grade by DG not by Unit!

This target average is hotly contested and has been the subject of appeals to the Public Service Tribunal. The Judgement in the FARDOOM/REINARD case of 25 October 2005 (T-43/04, Fardoom-Reinard / Commission, points 51 et 52 ):

«51- […] the fact that reporting officers take account of the target average which is indicated to them does not mean that their freedom of judgement is limited in a way that goes against article 43 of the Staff Regulations. [52] The Tribunal considers, on the contrary, that the system of the target average, as foreseen in the GIP, favours the freedom of reporting officers in the appraisal of officials and promotes reports which show the merits of the officials concerned. »

3. THE APPRAISAL REPORT: COMMENTS AND MARKS

Several points are worth mentioning. 3.1. Absences Absences cannot be used in the appraisal process. Article 8 of the GIP is very clear "«the reporting officer shall not take account of absences of the jobholder that are duly justified». The judgement in the SUNDHOLM case of 20 April 2005 (T-86/04, Sundholm/Commission, point 38) analyses in detail the illegality of taking account of justified absences and their impact on appraisal: "38- because of the multiple references to justified absences in the comments in the CDR which support the marks awarded, simply removing the comments without at the same time modifying the marks awarded cannot rectify the error committed by the reporting officer. Therefore, the appraisal procedure in question is in violation of article 7 paragraph 2 of the GIP."

3.2. New elements

There can be no surprise during the appraisal.

According to well-established case-law reconfirmed in the judgement in the DE BRY case (T- 157/04, De Bry/Commission, points 79-80 and 86)

"79- according to case-law, the respect for the right to defence in any procedure concerning a person which is susceptible to lead to an action which negatively affect that person is a fundamental principle of Community law. This principle, which corresponds to the demands of good administration, requires that the person in question should be able to make known his point of view concerning the reasons why a decision was taken (see Tribunal judgement of 8 March 2005, Vlachaki/Commission, T-277/03, not yet published, point 64, and the case law cited)., 80- It is also a well-established principle that article 26, first and second points, of the Staff Regulations, which states that the personal file of each official must contain a) all papers relating to his administrative situation and all reports concerning his level of competence, performance and behaviour […] the institution being unable to use papers against him if the papers mentioned under a) If he has not had the opportunity of seeing them before filing" – has the objective of ensure the right of defence of the official, avoiding that decisions of the administration affecting his administrative situation and his career be based on facts relating to his behaviour which are not mentioned in his personal file which have been communicated to him (see Court judgement of 12th November 1996 , Ojha/Commission, C-294/95 P, Rec. p. I-5863, point 57, and cited case law)".

This judgement further states that :

"86-[…] the complainant, in order to avoid having his rights to defence guaranteed under article 26 of the Staff regulations violated, should have been informed in writing that there were concerns regarding his timekeeping, in due time, that is to say in a reasonable time from when this fact was noticed . In fact, only such action would have allowed him to understand that this fact could be held against him as a serious reproach which would have justified the contested CDR and allowed him to properly defend his interests either by contesting the reproach or taking account of in order to improve his behaviour in the service, if only in order to obtain a good."

Therefore, every fact – for example timekeeping problems – which could lead to an unfavourable judgement must be made known beforehand to the jobholder.

3.3. Coherence between marks and comments

The SUNDHOLM judgement of 20 April 2005 (T-86/04, Sundholm/Commission, point 36) states "36- […] Therefore comments play a key role in establishing the CDR, the Commission having recognised during the hearing that coherence must exist between comments and marks. Therefore the marks should be considered to be the translation of the comments into figures." This is a constant message of the Tribunal. Therefore as soon as a comment is modified or removed the report and the marks should be reviewed.

3.4. - Reduction in marks

The DE BRY judgement of 12 July 2005 (T-157/04, De Bry/Commission, point 52) referring to the Maurissen judgement says that

"52- according to the Tribunal judgement of 21 October 1992, Maurissen/Court of Auditors (T-23/91, Rec. p. II-2377, point 41), any reduction in the appraisal of an official compared to the previous reporting period should be duly motivated. (…)"

The SEMERARO judgement, 21 February 2008 (F-19/06, Semeraro/Commission, point 47) says

"47- Based on established case-law, the administration must motivate every CDR in such a way as to allow the person concerned to make observations on this motivation (judgements of the Court of First Instance of 12 June 2002, Mellone/Commission, T-187/01, RecFP p. I-A-81 et II-389, point 27 ; of 30 September 2004, Ferrer de Moncada/Commission, T-16/03, RecFP p. I-A-261 et II-1163, point 49,and of 25 October 2005, Micha/Commission, T-50/04, RecFP p. I-A-339 et II-1499, point 36). The fact that a motivation is sufficient or not must be judged not only on its content, but also the factual and legal context (judgement of the Court of First of 15 September 2005, Casini/Commission, T-132/03, RecFP p. I-A-253 et II-1169, point 31)."

Concerning reducing marks following promotion, the Semeraro judgement notes at point 59:

"[59-…] these comments do not allow the complainant to judge clearly whether the reduction in marks was decided on the basis of an effective evaluation of her performance in grade C1 or as a result of an automatic adjustment of her marks following a promotion. On this point, it is important to remember that the job of the complainant remained unchanged and there is no indication that her performance was worse than in."

Later on the retroactive aspect of the decision is mentioned.

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