In Case T‑33/20

127The applicant maintains that he was not in a position to express himself on the elements used against him in the contested report before the countersigning officer took his decision, which constitutes a breach of his right to be heard. He asserts that, if he had had the opportunity to hold a dialogue with the countersigning officer, he could have further explained the situation in which he found himself, which could have led the countersigning officer to adopt a different position.

128Furthermore, the applicant states that he was not informed of the arguments put forward to the appeal assessor by the reporting officer and the countersigning officer, with the result that he was not able to take a position on any new arguments.

129ECDC contends that the applicant’s right to be heard was respected since he met with the reporting officer on 17January 2019 and then with the appeal assessor on 4March 2019. ECDC adds that, in addition to those two meetings, the applicant expressed his views in writing on two occasions, in his self-assessment of 14January 2019, and then when challenging the unsatisfactory appraisal on 8February 2019.

130According to settled case-law, the right to be heard, enshrined in Article41(2) of the Charter of Fundamental Rights, guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (see judgments of 4April 2019, OZ v EIB, C‑558/17P, EU:C:2019:289, paragraph53 and the case-law cited, and of 10January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph24 and the case-law cited).

131In the context of the appraisal of EU staff, that principle must enable the person concerned, during the appraisal procedure, to defend himself or herself against alleged facts which may be taken into account in the appraisal report (see, to that effect, judgment of 8May 2019, PT v EIB, T‑571/16, not published, EU:T:2019:301, paragraph165).

132That principle implies that, during the appraisal procedure, the administration must inform the person concerned of all the matters which might be relied on against him or her before the appraisal report is definitively drawn up (see, to that effect, judgment of 8May 2019, PT v EIB, T‑571/16, not published, EU:T:2019:301, paragraph166).

133The mere establishment that the staff member concerned knew of the factual matters on which the appraisal report is based cannot be regarded as sufficient to establish that he or she had the opportunity effectively to defend his or her interests prior to the adoption of that report. It is also necessary for the administration to give the person concerned the opportunity to understand that those facts are such as to justify that report (see judgment of 8May 2019, PT v EIB, T‑571/16, not published, EU:T:2019:301, paragraph167 and the case-law cited).

134In the first place, it should be noted that, under Article7(4) of the Implementing Rule, the appraisal report becomes final after the appeal assessor has taken his or her decision.

135In the second place, it must be noted that, in accordance with Articles6 and 7 of the Implementing Rule, the applicant had the opportunity to comment on two occasions, during the meeting he had with the reporting officer and then during the meeting he had with the appeal assessor, as stated in paragraph129 above. In addition, the applicant had the opportunity to make known his views on his personal situation in writing by means of his self-assessment, and then to share his observations by means of the reasoned opposition to his appraisal.

136In the third place, as regards the communication to the applicant of the evidence relied on against him, it is apparent from the appraisal procedure as provided for by the Implementing Rule that the applicant was put in a position to know that evidence during the interviews in which he participated, but also through the opinions drafted by the various participants in the appraisal procedure.

137In the fourth and last place, the applicant knew that the improvement of his conduct in the service was one of the objectives set in the appraisal of the previous year, since it was stated in the appraisal report relating to that report that ‘this change of behaviour should be visible in 2018, as explained in the objectives set out in [the applicant’s] appraisal report, in order to maintain a satisfactory performance’. He was therefore all the more able to understand what matters had given rise to the negative assessments made in that regard by his reporting officer and to submit his comments before the contested report was adopted by the appeal assessor. Although it is regrettable that the applicant could not have had a meeting with the countersigning officer, during which he could have made his comments and reacted before the latter expressed his position, it is apparent from the various stages of the appraisal procedure that that procedure, taken as a whole, respected the applicant’s right to be heard before a definitive conclusion was reached in the contested report on his manner of serving.

138It follows from the foregoing that the fourth plea must be rejected, as must the action.