Avis juridique important

Order of the Court of 20 March 1991. - Mariette Turner v Commission of the European Communities. - Appeal against the judgment of 22 February 1990 - Statement of reasons for the analytical assessments contained in the periodic report of 1983-1985. - Case C-115/90 P. European Court reports 1991 Page I-01423

Summary Parties Grounds Decision on costs Operative part

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Appeal - Pleas in law - Incorrect assessments of the facts - Appraisal of the trend in the marks awarded in an official' s periodic reports - Manifestly inadmissible - Dismissal

(Statute of the Court of Justice of the EEC, Art. 51; Rules of Procedure, Art. 119)

An appeal based on a plea criticizing findings of facts made by the Court of First Instance with regard to the favourable or unfavourable trend in the marks awarded in an official' s periodic reports is manifestly inadmissible and must therefore be dismissed in accordance with Article 119 of the Rules of Procedure. Such findings fall outside the scope of the Court' s review since, in accordance with Article 51 of its Statute, an appeal is limited to points of law.

In Case C-115/90 P,

Mariette Turner, represented by Marc Uyttendaele, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Alex Schmitt, Avocat, 62 Avenue Guillaume,

appellant,

APPEAL against the judgment of the Court of First Instance of 22 February 1990 in Case T-40/89 Turner v Commission (published in summary form in the Reports of Cases, [1990] ECR II-55),

the other party to the proceedings being

Commission of the European Communities, represented by Sean Van Raepenbusch, a member of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, a member of the Legal Service, Wagner Centre, Kirchberg,

THE COURT,

composed of O. Due, President, G.F. Mancini, T.F. O' Higgins, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias and M. Díez de Velasco (Presidents of Chambers), Sir Gordon Slynn, C.N. Kakouris, R. Joliet, F.A. Schockweiler, F. Grévisse, M. Zuleeg and P.J.G. Kapteyn, Judges,

Advocate General: M. Darmon,

Registrar: J.-G. Giraud,

having regard to Article 119 of the Rules of Procedure,

having regard to the report of the Judge-Rapporteur, and after hearing the views of the Advocate General,

makes the following

Order

1 By application lodged at the Court Registry on 24 April 1990, Mrs Turner appealed under Article 49 of the Statute of the Court of Justice of the EEC and the corresponding provisions of the ECSC and EAEC Statutes against the judgment of the Court of First Instance of 22 February 1990 (T-40/89, published in summary form in the Reports of Cases, Turner v Commission [1990] ECR II-55), whereby it dismissed Mrs Turner' s application for the annulment of the decision by the Director General for Personnel and Administration of the Commission, contained in his memorandum of 1 July 1987, leaving unchanged the applicant' s periodic report covering the period from 1 July 1983 to 30 June 1985, together with an order that the Commission should carry out its undertakings in respect of the applicant.

2 By judgment of 27 April 1989, the Court declared inadmissible the second head of claim for an order enjoining the Commission to carry out the said undertakings. By order of the Court of 15 November 1989, the case was assigned to the Court of First Instance in pursuance of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities.

3 By the abovementioned judgment of 22 February 1990, the Court of First Instance dismissed Mrs Turner' s application.

4 As to the facts underlying the dispute between Mrs Turner and the Commission, the Court of First Instance found that:

"Mrs Mariette Turner is employed in Directorate General IX of the Commission as a medical adviser in the payments office of the sickness insurance scheme in Brussels.

On 7 October 1987 she lodged a complaint under the first subparagraph of Article 90(2) of the Staff Regulations of Officials, directed against the decision of 1 July 1987 leaving unchanged her periodic report covering the period from 1 July 1983 to 30 June 1985. Claiming that the report in question included analytical assessments of a lower level than those appearing in the periodic report for the period from 1975-1977, which must serve for reference purposes in the absence of periodic reports for the intermediate periods, and that reasons ought to be given for those changes, she requested its annulment.

The periodic report for the period 1977-1979 was annulled by a judgment of the Court of Justice in Case 263/83 [1985] ECR 93 for infringement of the duty to provide information and to consult, and the report drawn up in respect of the period 1981-1983 was annulled by judgment of the Court of Justice in Case 178/86 [1987] ECR 5367 for infringement of the duty to provide a statement of reasons. In agreement with Mrs Turner, the administration did not draw up any report in respect of the period 1979-1981.

An examination of the analytical assessments contained in the definitive version of the periodic report in question shows that in regard to 'ability' , assessed under six headings and subheadings, the applicant obtained for the 1983-1985 reporting period three assessments of 'very good' and three of 'good' , namely:

- under the heading '1. Knowledge necessary for the performance of duties' , the assessment 'very good' ;

- under the heading '2. Aptitude' :

- the assessment 'very good' for each of the two subheadings 'written expression' and 'oral expression' ;

- the assessment 'good' for each of the three subheadings 'comprehension' , 'judgment' and 'sense of organization' .

These assessments were accompanied by comments stating in particular that 'Dr Turner possesses a good training, has very good medical experience ...' and that 'the assessment 'very good' corresponds to a particularly high level' .

In respect of the 1975-1977 reference period, the applicant had obtained under 'ability' the single assessment 'higher than average' , together with the comment, 'very good knowledge of preventive medicine' .

As regards 'efficiency' , assessed under four headings, the applicant obtained, for the 1983-1985 reporting period, three 'very good' assessments and one 'good' , namely:

- the assessment 'very good' under each of the three headings '1. Quality of work' , '3. Regularity' and '4. Adaptation to the requirements of the service' ;

- the assessment 'good' under the heading '2. Rapidity' .

These assessments were accompanied by a comment to the effect that 'Dr Turner ... has adapted very well to the requirements of her duties' and that the three assessments relating to quality of work, regularity and adaptation to the requirements of the service, 'which are also of a very high level attest the very good adaptation of the person concerned to her tasks as medical officer ...' .

For the 1975-1977 reference period the applicant obtained for 'efficiency' the single assessment 'above average' , together with the comment 'very conscientious in performing her duties' .

Giving a decision on the applicant' s abovementioned complaint, the Commission adopted a decision on 23 March 1988, addressed to the applicant on 18 April 1988, in which it stated that it was not in a position to improve the analytical assessments contained in the periodic report for the period 1983-1985, whilst recognizing that it was in fact necessary to provide special justification for certain of those analytical assessments. It added that it would recommend the reporting officers to add certain reasons in support.

By a letter of 5 July 1988, the applicant' s counsel requested the reporting officer to implement the Commission' s recommendation and to amend the periodic report.

This action was brought on 15 July 1988.

By letter dated 20 July 1988, the Director General for Personnel and Administration of the Commission forwarded to the applicant the revised part II of her periodic report drawn up for the period 1983-1985, containing additional remarks concerning particularly 'ability' and 'efficiency' . At the hearing on 25 January 1990, the Commission' s agent, rectifying a clerical error appearing in the document annexed to the letter of 20 July 1988, stated that under the heading 'general assessment' the text should read 'Dr Turner possesses a very good training ...' ."

5 The Court of First Instance summarized the submissions made before it as follows:

"... under the terms of the second paragraph of Article 5 of the Guide to Staff Reports drawn up by the Commission on 27 July 1979, the applicant criticizes the Commission for failing to give reasons for the change in the analytical assessments which she received in the periodic report in question by comparison with the reference report covering the period from 1 July 1975 to 30 June 1977.

The applicant argues that the combination of three 'very good' assessments and three 'good' assessments in respect of ability represents a lower analytical assessment than the assessment 'above average' which she was given by the reference report. In the same way she argues that the combination of three 'very good' assessments and one 'good' assessment in respect of efficiency represents a lower analytical assessment than the 'above average' assessment given to her by the reference report.

The applicant considers that the reporting officer was obliged under the terms of the Guide to Staff Reports to give reasons in the case of each of the analytical assessments marked at a lower level than 'very good' on account of the relationship of symmetry and equivalence existing between the assessment 'average' and the assessment 'good' ."

6 In dismissing Mrs Turner' s application, the Court of First Instance first points out that :

"It is common ground that the report in question and the report covering the period 1975-1977 were drawn up under different systems of evaluation, the new provisions governing periodic reports having been adopted by the Commission on 27 July 1979".

7 The Court of First Instance goes on to hold that:

"By substituting for the method of assessment based on the three general assessments 'above average' , 'average' and 'below average' a method of assessment based on six headings and subheadings for 'ability' , four headings for 'efficiency' and four headings for 'conduct in the service' , the Commission sought to differentiate and further refine the analytical assessments of officials subject to periodic reports. It necessarily follows from that change of method that equivalence between the old and the new method of reporting cannot be established by a fixed correlational mechanism.

It is true that as between the assessment 'average' and the assessment 'good' there exists a relationship of symmetry and equivalence. It should however be emphasized that in the present case under the headings 'ability' and 'efficiency' the assessments 'good' were given in conjunction with a number of 'very good' assessments respectively equal to and higher than the number of 'good' assessments and that all these assessments are accompanied, as regards the overall assessment, by comments which highlight the fact that Dr Turner possesses a very good training, very good medical experience, and adapted well to the requirements of her duties.

In the same way it should be noted that the general assessment 'higher than average' for the headings 'ability' and 'efficiency' could also result, under the previous method of reporting, from a combination of differing analytical assessments, the final assessment given by the reporting officer not necessarily indicating that in respect of each of the assessment factors the person concerned had demonstrated the clearly higher qualities required for the assessment 'very good' under the new method.

8 On the basis of those arguments the Court of First Instance concluded that:

"It follows from those considerations that the analytical assessments made by the reporting officers in regard to ability and efficiency for the reporting period 1983-1985 cannot be regarded as a change which was unfavourable to the applicant by comparison with the assessments that she received for the 1975-1977 period, and which required proper justification. Consequently, the complaint concerning an infringement of the terms of the second paragraph of Article 5 of the Guide to Staff Reports is ill-founded."

9 In support of her appeal the appellant puts forward a single ground of appeal based on an infringement of the second paragraph of Article 5 of the Guide to Staff Reports, which requires the Commission to provide a statement of reasons for changes in analytical assessments in relation to those appearing in previous periodic reports. The appellant considers that the Court of First Instance was wrong to hold that the analytical assessments contained in the staff report for the period 1983-1985 were not worse than those contained in the reference report for the period 1975-1977 and that, consequently, the Commission was not obliged to give reasons for the analytical assessments in the staff report for the period 1983-1985; the appellant claims that the assessments were lower than the assessments contained in the reference report and should therefore have been accompanied by a statement of reasons provided by the Commission.

10 In her single submission the appellant claims that the reasoning on which the judgment appealed against is based shows that the Court of First Instance is confusing the assessment categories by, in each case, balancing the assessments "good" and "very good". In doing so the Court of First Instance is said to negate the objective interest in having differentiated columns, thus giving rise to arbitrariness. Moreover, the reference made by the Court of First Instance to the reporting officer' s general comments in order to clarify the analytical assessments disregards the procedure provided for by the Guide to Staff Reports, according to which the analytical assessments should determine the general comments.

11 The Commission, for its part, contends that the assessment "good" refers to qualities of a high level which it is entitled to expect of an official and, accordingly, corresponds to an "average" assessment. It follows that the allocation across the six columns coming under the heading "ability" of three "very good" assessments and three "good" assessments corresponds to the former overall assessment of "higher than average". The appellant' s argument that the old assessment should be reflected by six assessments spread over the "very good" and "excellent" columns alone ignores the objective of the new evaluation system which, the Commission says, is to refine, to a greater extent than in the past, the analytical assessments made in respect of officials. As to the heads of assessments "efficiency", the three "very good" assessments together with a "good" correspond to the former overall assessment "higher than average". As regards the head of assessment "conduct in the service", the appellant achieved a significant improvement in relation to the mark contained in the reference report.

12 It should first be pointed out that the Court of First Instance rightly considered that only an unfavourable change in the assessments in question by comparison with those contained in the reference report requires appropriate justification within the meaning of the second paragraph of Article 5 of the Guide to Staff Reports drawn up by the Commission on 27 July 1979.

Costs

15 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Article 70 of those Rules provides that institutions are to bear their own costs in proceedings brought by servants of the Communities. However, in accordance with Article 122 of the Rules, Article 70 does not apply to appeals brought by an official or other servant of an institution against such institution. Since Mrs Turner has failed in her appeal she must be ordered to pay the costs of these proceedings.

On those grounds,

THE COURT

hereby:

(1) Dismisses the appeal;

(2) Orders Mrs Turner to pay the costs of the proceedings.

Done in Luxembourg, 20 March 1991.