C-96/23

ORDER OF THE COURT (Eighth Chamber) 6 September 2023 (*) (Appeal – Civil service – Members of the temporary staff – Appraisal report for 2019 – Action for annulment and for damages – Distortion of the evidence – Error of law as to the obligation to state reasons and the legal value of documents internal to the European Commission – Manifest error of assessment in relation to alleged psychological harassment – Article 181 of the Rules of Procedure of the Court of Justice – Appeal manifestly unfounded) In Case C‑96/23 P, APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 February 2023, TL, represented by P. Nowak, adwokat, appellant, the other party to the proceedings being: European Commission, defendant at first instance, THE COURT (Eighth Chamber), composed of M. Safjan (Rapporteur), President of the Chamber, N. Piçarra and N. Jääskinen, Judges, Advocate General: P. Pikamäe, Registrar: A. Calot Escobar, having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice, makes the following Order 1        By her appeal, TL seeks to have set aside the judgment of the General Court of the European Union of 13 July 2022, TL v Commission (T‑677/21, EU:T:2022:456), by which the General Court dismissed her action seeking, first, annulment of her appraisal report for 2019 (‘the appraisal report at issue’) or, in the alternative, its partial annulment and, in so far as necessary, annulment of the decision of the European Commission’s authority empowered to conclude contracts of employment of 8 July 2021 rejecting her complaint brought under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against that report; and, second, compensation for the non-material damage which she claims to have suffered as a result of the unlawfulness of that report.  The appeal 2        Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part. 3        It is appropriate to apply that provision in the present case. 4        On 14 June 2023, and subsequently on 11 July 2023, the Advocate General took the following position: ‘1.      I propose that the Court should dismiss the appeal in the present case as manifestly unfounded and order the appellant to bear her own costs, in accordance with Article 181 of the Rules of Procedure of the Court of Justice, for the following reasons. The first ground of appeal, alleging distortion of the evidence in the file and an error of law by the General Court in finding that the appraisal report at issue was sufficiently reasoned 2.      By her first ground of appeal, which is divided into three parts, the appellant criticises the General Court for having rejected her third plea at first instance, which alleged an infringement of the obligation to state reasons in the appraisal report at issue. 3.      By the first part of the first ground of appeal (paragraphs 8 to 14 of the appeal), directed against paragraphs 24, 33 and 34 of the judgment under appeal, the appellant complains, in essence, that the General Court distorted the evidence in concluding that the appellant’s arguments were based on a misinterpretation of the contested comments. In that regard, it should be noted that, in paragraphs 33 and 34 of the judgment under appeal, the General Court responded to the appellant’s argument that specific examples or facts in the appraisal report at issue would have enabled her to understand the nature of her drafting problems and the occasions on which or colleagues with whom problems had arisen. Contrary to the appellant’s submissions, the General Court did not, in those same paragraphs, examine that argument in the light of the appellant’s earlier appraisal reports, with the result that it could not have distorted the evidence in the file relating to those reports. That is all the more so since, in order to respond to that argument, it was not necessary for the General Court to examine the earlier appraisal reports. 4.      As regards the alleged contradiction between paragraphs 24 and 34 of the judgment under appeal, it should be observed that, in stating, in paragraph 24, that the appellant faced challenges, as the second of the contested comments in the appraisal report at issue shows, the General Court did not state that those challenges related specifically to the appellant’s interpersonal relationships with other colleagues. In paragraph 24, the General Court did not carry out a detailed and specific assessment of that second comment, but merely stated that, in accordance with the case-law referred to in paragraph 23 of the judgment under appeal, the appraisal report at issue clearly set out the salient points of the appellant’s performance under the headings relating to efficiency, abilities and conduct in the service. 5.      By contrast, in paragraphs 33 and 34 of the judgment under appeal, the General Court more specifically examined the content of that second comment in order to determine whether an understanding of that comment was made difficult for the appellant or required more detailed explanations accompanied by specific examples or facts. In that context, as the General Court rightly pointed out in those same paragraphs, there was no comment in the appraisal report at issue which indicated that the appellant had interpersonal problems with her colleagues. Taken as a whole, the second comment is, as the General Court pointed out in paragraph 34 of the judgment under appeal, drafted in essentially positive terms in that it states that it is “easy to work” with the appellant and that she is “well integrated in the unit [and] generally maintains good relations with her colleagues”. In addition, the challenging conditions for cooperation referred to in the second comment relate to the appellant’s collaboration not only within the unit, but also within “the Directorate-General” and with “institutions outside the Commission (e.g. the ECB)” and require, again according to that second comment, better learning not of personal or interpersonal relationships, but of the management of personal relationships. 6.      In those circumstances, it appears that the appellant did not generally encounter personal or interpersonal problems with her colleagues in the unit, within which she was well integrated and maintained good relationships, and that it was therefore only occasionally, as the adverb “sometimes” expressly states in the second comment, that the conditions for cooperation both within and outside the unit may have proved difficult, thus requiring the appellant to improve her way of managing personal relationships. Therefore, the General Court was fully entitled to conclude from the second comment that that comment refers generally to the conditions for cooperation, without mentioning the existence of interpersonal problems, since the one-off nature of the difficulties encountered did not require the reporting officer to provide detailed explanations accompanied by specific examples or facts, and did not make it objectively difficult for the appellant to understand that comment. 7.      As regards the second part of the first ground of appeal (paragraphs 15 to 21 of the appeal), the General Court did not disregard, in paragraph 24 of the judgment under appeal, the case-law according to which an appraisal report must highlight, on the basis of conclusive evidence, the ability, efficiency and conduct in the service of each member of staff without however drawing up an exhaustive picture of his or her tasks. In that same paragraph, the General Court carried out an analysis of the appraisal report at issue, noting that the headings on ability, efficiency and conduct in the service clearly describe the abilities and positive aspects relating to each of those categories without omitting to draw attention to the challenges that the appellant faced, all of which made it possible to have a sufficiently detailed overview of the appellant’s performance. In so doing, the General Court necessarily checked and found that the appellant’s reporting officer had taken into account the conclusive evidence which made it possible to highlight each of the three categories referred to above. 8.      As regards the manifest error of assessment alleged to have been committed by the General Court in paragraph 32 of the judgment under appeal in failing to acknowledge that the appellant should have been informed of the identity of the colleague or colleagues with whom cooperation had been difficult, it must be held that, since the General Court was fully entitled to find that the second contested comment in the appraisal report at issue mentioned, “in general”, challenging conditions for cooperation, the appellant was not in a situation which was likely to make it more difficult for her to understand that comment or which justified a more detailed explanation. 9.      As regards the third part of the first ground of appeal (paragraphs 22 to 33 of the appeal), alleging an infringement of the principle of equal treatment and of the protection of legitimate expectations, it should be noted that, in paragraph 29 of the judgment under appeal, the General Court analysed the substance of the act relied on by the appellant in order to establish whether it has binding force. More specifically, the General Court found that the document, entitled “Constructive dialogue and fair report: guidance for Reporting Officers”, available, according to the Commission, on its intranet site under the heading “Tips on how to conduct a dialogue and write a fair report”, set out mere recommendations and advice for reporting officers. Furthermore, it also noted that that document did not impose a uniform practice on reporting officers. 10.      However, it is necessary to bear in mind the Court’s case-law according to which “although [internal measures adopted by the administration of an EU institution] may not be regarded as rules of law which the administration is always bound to observe, [such measures] nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment … In adopting such rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the institution in question imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations. It cannot therefore be precluded that, on certain conditions and depending on their content, such rules of conduct of general application may produce legal effects” (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 209 to 211). It follows from that case-law that, in order to determine whether internal measures adopted and published by the administration constitute rules of conduct indicating the practice to be followed which are, on publication, declared applicable to cases covered by them, account must be taken of the context in which those measures occur, of their objective and of their wording (see, by analogy, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 61 and 62). 11.      As mentioned above, the General Court correctly analysed the Commission document relied on by the appellant, observing that it set out mere recommendations and advice for reporting officers without imposing a uniform practice as regards, inter alia, the obligation to include one or more specific examples in each assessment of the appraisal report. In that regard, attention should be drawn to paragraph 29 of the judgment under appeal, in which the General Court held that that document “[did] not constitute either a decision or an internal directive within the meaning of the case-law”. Having concluded that that document did not have binding legal force, the General Court held that, in the light of the case-law referred to above, the Commission had not laid down “rules” of practice, even merely indicative ones, and that, in any event, and notwithstanding the publication of the document, it was clear from its wording and content that there was no intention for the recommendations and advice concerned to be applied strictly and uniformly to all the appraisals of officials and temporary staff. That assessment is supported by the considerations set out by the General Court in paragraphs 25 to 27 of the judgment under appeal, which are not disputed by the appellant, according to which the reporting officer was not required to provide specific examples given that the appellant’s performance had been considered satisfactory. Consequently, I consider that the arguments put forward by the General Court do not reveal any error of law, since they are based on a correct application of the criteria laid down in the case-law for assessing the legal value of internal measures of the administration. 12.      For the reasons set out in the preceding points, I consider that the first ground of appeal is manifestly unfounded. The second ground of appeal, alleging a distortion of the evidence in the file and an error of law committed by the General Court in its assessment of the Commission’s guidance for the reporting officers 13.      By her second ground of appeal, which is divided into three parts, the appellant challenges the General Court’s rejection of the second plea at first instance, which alleged an infringement of Article 43 of the Staff Regulations, an infringement of the Commission’s guidance for reporting officers, manifest errors of assessment, misuse of powers and breach of the duty of care and of the principle of sound administration. 14.      By the first part of the second ground of appeal, directed against paragraph 43 of the judgment under appeal, the appellant complains, referring to the arguments put forward in support of the first part of the first ground of appeal, that the General Court distorted the evidence. 15.      By the second part of the second ground of appeal, directed against paragraph 47 of the judgment under appeal, the appellant again complains that the General Court erred in law and, therefore, misapplied the principles of equal treatment and the protection of legitimate expectations, in so far as it held that the document entitled “Constructive dialogue and fair report: guidance for Reporting Officers” lacked binding force. In that context, the appellant refers to the arguments put forward in support of the third part of the first ground of appeal. 16.      As the submissions made in support of the first two parts of the second ground of appeal (paragraphs 34 to 37 of the appeal) are based on the same arguments as were raised in support of the first and third parts of the first ground of appeal, they must equally be rejected as manifestly unfounded. 17.      By the third part of the second ground of appeal (paragraphs 38 to 46 of the appeal), directed against paragraphs 48 and 59 of the judgment under appeal, the appellant submits, in the light of the case-law on harassment and of Commission Decision C(2006) 1624/3 of 26 April 2006 on the European Commission policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment, that the General Court committed a manifest error of assessment and distorted the evidence. The appellant criticises the General Court, in essence, for not having held that the appraisal report at issue and, in particular, the contested comments were vitiated by a manifest error of assessment or a misuse of powers on account of alleged psychological harassment. 18.      In that regard, it should be noted that, in paragraph 59 of the judgment under appeal, the General Court did not examine whether there was any alleged psychological harassment of which the appellant was the victim, but examined only the possible impact of that alleged harassment on the content of the appraisal report at issue. In those circumstances, and contrary to the appellant’s submissions, the General Court did not consider that the incidents reported by the appellant did not constitute a case of psychological harassment, but merely found that, in any event, there was no link between the alleged harassment and the appraisal report at issue, thus rendering it unnecessary for the General Court to ascertain whether there was harassment. 19.      The General Court’s approach seems to me not to be open to challenge from a legal point of view, since it consists, in essence, in observing the absence of an harassing stance on the part of the reporting officer, given the overall positive nature of the comments contained in the appraisal report at issue. In so far as the purpose of the action for annulment brought by TL is to establish specifically the legality of those comments, taking into account a possible error of assessment or misuse of powers, I consider that the General Court was under an obligation to rule on that aspect as part of its analysis. It seems to me that the existence of a specific case of psychological harassment could not otherwise have been determined in the circumstances of the present case, in particular because of the probative value that those comments might have had. 20.      As regards the alleged distortion of the file and disregard of the evidence, it should be noted that it is not obvious from the documents in the file expressly identified by the appellant in paragraph 43 of the appeal that, in stating that none of the contested comments in the appraisal report at issue concerned the elements of psychological harassment relied on by the appellant, the General Court distorted or ignored the evidence. Those documents are merely general allegations which entirely fail to substantiate the appellant’s assertions summarised in paragraph 48 of the judgment under appeal and which do not relate specifically to any of the aspects referred to in those comments. 21.      In particular, it remains the case that the appellant has failed to demonstrate how the numerous tensions invoked by her and referred to in paragraph 48 of the judgment under appeal, which she has not established otherwise than by email exchanges that do not make it unambiguously clear that they were the result of abusive and repeated conduct on the part of the Head of Unit, led the reporting officer to lack partiality when drafting the second contested comment, even though, as is apparent from point 5 of this position, that second comment is positive overall and refers only in general terms to difficulties of cooperation having occasionally arisen. 22.      As regards the alleged error of law committed by the General Court with regard to point 2.3 of the Annex to Decision C(2006) 1624/3, according to which one of the consequences of harassment is that the victim becomes isolated and that social relationships tend to deteriorate, it should be noted that, in view of the essentially positive nature of the second comment taken as a whole, the General Court cannot be criticised for not having concluded that there was a link between the alleged psychological harassment and that second comment from which it is not at all apparent that the appellant suffered isolation or deterioration in her social relationships. 23.      In the light of the foregoing, I consider that the second ground of appeal is manifestly unfounded. The third ground of appeal, alleging distortion of the evidence in the file and an error of law by the General Court in finding that the three Commission internal guidance documents did not establish an obligation to set objectives 24.      By her third ground of appeal, which is divided into three parts, the appellant criticises the General Court for having rejected the first plea at first instance, which alleged a manifest error of assessment and an infringement of the duty of care and of the principle of sound administration because the Commission had failed to set objectives for the period from 1 January to 31 December 2019. 25.      By the first part of the third ground of appeal (paragraphs 47 to 52 of the appeal), directed against paragraph 75 of the judgment under appeal, the appellant alleges that the General Court distorted the evidence, misapplied the principles of equal treatment and the protection of legitimate expectations, and erred in law in finding that the three internal Commission documents listed in paragraph 66 of the judgment under appeal did not have any legal effect and, therefore, failed to find that the administration was under an obligation to set objectives for her. 26.      As has been explained in the course of examining the third part of the first ground of appeal, the General Court correctly assessed, having regard to the case-law, the legal value of the three Commission documents referred to in paragraph 66 of the judgment under appeal. In addition, it should be noted that, as regards the document concerning the appraisal for 2020, it is in any event irrelevant since the appraisal report at issue concerns 2019. Lastly, it should be noted that the principles of equal treatment and the protection of legitimate expectations cannot be effectively relied on by the appellant with regard to documents which have no binding legal force and which are incapable of having given rise to any legitimate expectation on the part of the persons concerned. Accordingly, the first part of the third ground of appeal must be rejected as manifestly unfounded. 27.      By the second part of the third ground of appeal (paragraphs 53 to 60 of the appeal), which refers to paragraph 76 of the judgment under appeal, the appellant criticises the General Court for having criticised her failure to approach her line manager for the purposes of setting objectives. The appellant also complains that, again in paragraph 76 of the judgment under appeal, the General Court distorted the evidence in finding that it was not clear from the file that she had made a request to her manager to that end. 28.      In so far as it is proposed that the first part of the third ground of appeal concerning paragraph 75 of the judgment under appeal be rejected and given that the appellant does not call into question the analysis carried out by the General Court in paragraphs 69 to 74 of that judgment, paragraph 76 of that judgment must be read in the context of the General Court’s correct finding that there was no obligation for the administration to set formal objectives for the purpose of drawing up the annual assessment report. Consequently, in the absence of that obligation, the General Court was entitled to consider in that same paragraph, without infringing the principle of equal treatment, that it is for the person under appraisal to ask the reporting officer to set objectives for the following appraisal period if that person considers that the setting of such objectives may be useful for him or her. 29.      As regards the distortion of the evidence alleged by the appellant, it should be recalled that, in accordance with the Court of Justice’s case-law, a distortion exists in particular where the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence (see, to that effect, judgments of 10 February 2011, Activision Blizzard Germany v Commission, C‑260/09 P, EU:C:2011:62, paragraph 57, and of 25 July 2018, Orange Polska v Commission, C‑123/16 P, EU:C:2018:590, paragraph 75). In the present case, it is not apparent from the evidence to which the appellant refers that she made a request to her manager for the purpose of setting objectives. That evidence shows that the appellant had raised, in isolation, the existence of certain problems or incidents. 30.      Furthermore, it should be noted, for the purposes of examining that ground, that it is not possible to comprehend the appellant’s argument that she had raised serious concerns about the allocation of files. The appellant fails to explain with the necessary clarity how that matter and the setting of objectives in the annual appraisal report are connected. The appellant fails to develop her brief assertion that the allocation of files is one of the main purposes of setting annual objectives or why concerns about the allocation of files should have led the line manager to understand that the appellant was concerned about the failure to set objectives. 31.      By the third part of the third ground of appeal (paragraphs 61 to 65 of the appeal), directed against paragraph 77 of the judgment under appeal, the appellant alleges that the General Court distorted, or even ignored, the evidence, explaining that she had not claimed that the contested comments were based on the absence of objectives for 2019. In that regard, she refers to the third part of the second ground of appeal and to the second part of the third ground of appeal. 32.      There is nothing in the General Court’s reasoning that makes it possible to conclude that the General Court distorted or ignored the evidence to which the appellant refers. On the contrary, the General Court held, without erring in law, that the appellant’s general performance had been considered satisfactory. In addition, the General Court correctly held that the appellant had not claimed that the comments in the appraisal report at issue, including the comments in question, were based on the failure to take into account the fact that no objective had been set for 2019. The appellant does not make any submissions that are capable of calling into question the General Court’s findings in paragraph 77 of the judgment under appeal. Lastly, as was observed as part of the analysis, the appellant’s arguments are not conclusive, since they do not make it possible to understand the relationship between the line manager’s allocation of cases, which gave rise to concerns, and the failure to set objectives. 33.      In the light of the foregoing, I consider that the third ground of appeal should be rejected as manifestly unfounded. 34.      Therefore, in accordance with Article 181 of the Rules of Procedure of the Court of Justice, I propose that the Court dismiss the appeal in its entirety as manifestly unfounded and order the appellant to bear her own costs.’ 5        For the same reasons as those given by the Advocate General, the appeal must be dismissed in its entirety as manifestly unfounded.  Costs 6        Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before the latter could have incurred costs, it is appropriate to decide that TL is to bear her own costs. On those grounds, the Court (Eighth Chamber) hereby orders: 1.      The appeal is dismissed as manifestly unfounded. 2.      TL shall bear her own costs. Luxembourg, 6 September 2023. A. Calot Escobar   M. Safjan Registrar   President of the Chamber *      Language of the case: English.