In Case T‑33/20

105The applicant raises three complaints in support of this plea.

106First, the applicant submits that ECDC should have taken into account his sick leave and the rejection of his request for assistance, when the Director of ECDC stated that the working relationship between the applicant and his line manager was ‘somehow difficult’. According to the applicant, that fragile situation in which he found himself when he drafted his self-assessment was not taken into consideration in the appraisal of his performance, which constitutes an infringement of ECDC’s duty to have regard for the welfare of officials.

107ECDC disputes the applicant’s arguments.

108According to the settled case-law, the administration's duty to have regard for the welfare of its staff reflects the balance of reciprocal rights and obligations that the Staff Regulations have created in relations between the public authority and public service employees. That duty implies in particular that when the authority takes a decision concerning the situation of an official or other staff member, it must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official or member of the temporary staff concerned (see judgment of 19September 2019, FV v Council, T‑153/17, not published, EU:T:2019:622, paragraph90 and the case-law cited).

109In the present case, it should be noted that, as stated in paragraph80 above, the contested report lists the tasks and objectives set for the applicant during the reference period and specifies whether those tasks and objectives were ‘fully achieved’, ‘partly achieved’ or ‘not started’. It is apparent from the contested report that one task relating to the FWD programme was deemed to be ‘partly achieved’ and another ‘not started’. In the comments, it is stated that the task partially achieved was explained by the fact that ‘sick leave reduced [the] number of days possible to put on [the] project’. As regards the ‘not started’ task, it is stated that it was not started ‘due to sick leave’ and that the ‘project [was] discontinued in 2019 due to new strategic priorities’. In that regard, it must be held that the comments thus made with regard to the tasks which were not fully achieved had no impact on the assessment of the applicant’s efficiency and ability, as evidenced by the positive comments made under those headings.

110It follows from the foregoing that ECDC did indeed take into consideration the applicant’s sick leave and, in fact, the health problems he encountered during the reference year. In that regard, while it is possible that health problems may harm a person’s performance, or even his conduct in the service, the applicant must still establish a sufficient link enabling the Court to find that those difficulties are capable of being justified by those health problems. Yet it must be noted that the applicant has not put forward any evidence relating to his health capable of justifying his problems of conduct in the service.

111Furthermore, it should be noted that the applicant’s difficult relationships had already been mentioned in the appraisal report for the previous year and that an improvement in that regard was one of the objectives for the reference period. In addition, it was noted by the reporting officer that the applicant ‘[had] contributed to preparatory planning, but with signs of not agreeing [with those strategic decisions]’. For his part, the countersigning officer pointed out that, ‘in the feedback of [the applicant]’s line manager, [he observes] an appreciation of [the applicant]’s work in terms of delivering what [is] expected in the work plan, but also the need to be more engaged in the core activities of his team’. As regards the appeal assessor, she stated that ‘while [the applicant had] the possibility to voice [his] opinion and discuss the matter constructively, if [he is] of a different opinion, [she] expect[s] every staff member to accept [strategic decisions taken by the management of ECDC]… and consequently the tasks allocated to [him] in line with these priorities without continuously questioning and criticising them’. Thus, it is apparent from those comments that the interests of the applicant were weighed against those of the service. The various participants highlighted the positive aspects of the work carried out by the applicant, which were, however, counterbalanced by his problems of conduct in the service, in particular regarding the acceptance of strategic decisions. It must be borne in mind that it was on the basis, in particular, of the lack of acceptance of strategic decisions and the lack of willingness in the performance of the tasks and objectives linked to those strategic decisions that the applicant’s conduct in the service was considered unsatisfactory.

112Therefore, it is apparent from the contested report that ECDC took into consideration all the relevant factors in the applicant’s appraisal, taking into account not only the interests of the service but also the interests of the applicant.

113The first complaint must therefore be rejected.

114Second, the applicant submits that greater diligence in setting up the coaching sessions proposed by the Director following the rejection of his request for assistance would have influenced the comments he made in his self-assessment, which in his view is the basis of his appraisal report. When questioned in that regard at the hearing, the applicant added that those coaching sessions could have been a source of change by encouraging the resumption of the dialogue with his superiors.

115ECDC disputes the applicant’s arguments.

116It should be noted that, even if the coaching sessions were held earlier, from the end of 2018, and not from May 2019, they would have occurred at the end of the reference period and would have had no effect on the factual elements which justified the conclusion that the applicant’s conduct in the service for that period was unsatisfactory. The applicant is therefore wrong to consider that the delay in setting up those coaching sessions had an impact on his appraisal.

117Third, the applicant submits in his reply that, in view of the situation in which he found himself at the time of his appraisal, ECDC breached its duty to have regard for the welfare of staff by failing to make use of Article3(3) of the Implementing Rule, under which, in exceptional cases, justified by the desire to act in the interests of the jobholder or in the event of a change in the organisation chart of a service, the Director of ECDC may derogate from the rules governing the designation of various participants in the appraisal procedure.

118ECDC disputes the applicant’s arguments.

119At the hearing, the Court asked the parties to submit their observations on the admissibility of that complaint, submitted by the applicant for the first time at the stage of the reply.

120The applicant is of the view that that complaint was submitted in response to the argument put forward by ECDC, in its defence, that, even where there has been harassment, the reporting officer is not necessarily prevented from performing his duties in the reporting process. The applicant states that, by referring to Article3(3) of the Implementing Rule, he wished to make clear that there was a possibility, specific to ECDC, of taking action and choosing another reporting officer.

121In that regard, the Court observes that this is a new complaint, which appears only in the reply, which is not based on matters of law or of fact which came to light in the course of the procedure, with the result that, under Article84 of the Rules of Procedure, that complaint must be declared inadmissible.

122In any event, even if the complaint alleging failure to apply Article3(3) of the Implementing Rule were admissible, ECDC is right to point out that that provision applies only in exceptional cases, in accordance with the conditions laid down therein.

123In the present case, according to the applicant, such a procedure was justified by the difficult relationship which he had with his line manager.

124Nevertheless, it is settled case-law that, even though the possibility cannot be ruled out that differences between an official or an agent and his immediate superior may cause a degree of irritation on the part of that immediate superior, that possibility does not, as such, imply that the immediate superior is no longer in a position to assess objectively the merits of the person concerned. It has moreover been held that, even the fact that a staff member has lodged a complaint of harassment against the person who is to assess his or her professional performance cannot of itself, without more, call into question the impartiality of the person against whom the complaint has been lodged (see judgment of 8November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph94 and the case-law cited).

125It should be noted that, in the present case, it is true that the applicant had submitted a request for assistance under Article24 of the Staff Regulations because of the relationship problems encountered with his line manager. Moreover, although that request for assistance was rejected, the rejection decision acknowledged that the relationship between the applicant and his line manager was ‘somehow difficult’. However, it must be noted that the applicant merely relies on the request for assistance, without producing any additional evidence capable, in accordance with the case-law referred to in paragraph124 above, of supporting his allegations regarding the lack of impartiality of his line manager. Furthermore, the applicant has not adduced any evidence to establish an ‘exceptional case’ justifying recourse to Article3(3) of the Implementing Rule. Consequently, the complaint alleging infringement of that article must, in any event, be rejected.

126It follows from the foregoing that ECDC did not breach its duty to have regard for the welfare of its staff. Consequently, the third ground of appeal must be rejected.

The fourth plea, alleging breach of the right to be heard

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.