Jean-Marc Colombani v European External Action Service (T-158/23)

Contents

Judgment of the General Court (Fourth Chamber)4 December 2024^note(Civil service — Officials — Reports procedure — Appraisal report — 2021 appraisal procedure — Regularity of the procedure — Principle of impartiality)In Case T‑158/23,Jean-Marc Colombani, residing in Auderghem (Belgium), represented by N. de Montigny, lawyer,vEuropean External Action Service (EEAS), represented by R. Coesme, R. Spáč and S. Falek, acting as Agents,THE GENERAL COURT (Fourth Chamber),composed of R. da Silva Passos, President, I. Reine (Rapporteur) and T. Pynnä, Judges,Registrar: H. Eriksson, Administrator,having regard to the written part of the procedure,further to the hearing on 2 May 2024,gives the following

Judgment

1By his action under Article 270 TFEU, the applicant, Mr Jean-Marc Colombani, asks the Court to annul the appraisal report drawn up in respect of him for 2021 (‘the contested appraisal report’).

Background to the dispute

2The applicant is an official in grade AD 14 in the European External Action Service (EEAS). He entered the service of the European Commission on 1 May 1990.

3The applicant has held various posts within the EEAS since 1 January 2011. Between 22 June 2011 and 31 May 2016, he worked as an assistant to the Executive Secretary-General of the EEAS, then, from 1 June 2016 until 31 December 2016, he worked as an adviser in the General Secretariat. Following the appointment of a new Secretary-General of the EEAS, from 1 January 2017, he was assigned as an adviser to one of the three Deputy Secretaries-General of the EEAS. On 1 May 2020, the applicant’s immediate superior was replaced.

4On 18 February 2021, the applicant submitted a request for assistance under Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) on account of alleged psychological harassment against him, which he attributed to four persons and, in particular, to his immediate superior. By decision of 15 June 2021, that request was rejected in so far as it concerned the conduct of two persons concerned. By contrast, the EEAS decided to open an administrative investigation in respect of the applicant’s immediate superior and another person.

5The appraisal procedure for 2021 was initiated on 2 February 2022. In his self-appraisal, the applicant referred to the request for assistance in respect of psychological harassment concerning his immediate superior.

6In an email sent to the office of his immediate superior, the applicant expressed his doubts concerning the existence of a conflict of interests for the purposes of Article 11a of the Staff Regulations, should that immediate superior conduct the appraisal procedure.

7The discussion relating to the applicant’s appraisal procedure for 2021 took place by telephone on 6 May 2022 with the applicant’s immediate superior.

8On 2 June 2022, the applicant’s immediate superior, acting as reporting officer, signed the applicant’s appraisal report. In that report, the applicant’s performance was considered satisfactory. However, the following appraisal was included under the heading relating to efficiency:‘Jean-Marc Colombani accepted new terms of reference in April 2021, covering in particular the following priorities: 1/ Civil-military cooperation 2/ Indo-Pacific 3/ Strategic intelligence with an emphasis on the Strategic Compass … Jean-Marc failed to act on the third priority, to my regret. Strategic intelligence work on the Compass would have usefully informed the negotiations conducted separately with the Member States, given its permeability with the public debate and production of research centres …’

9On the same day, the applicant lodged an appeal against his appraisal, requesting that the appraisal procedure concerning him be suspended pending the outcome of the administrative investigations into alleged harassment initiated against, among others, his immediate superior. The applicant questioned his immediate superior’s impartiality in his capacity as reporting officer, on the ground that he was the subject of such an investigation.

10Following an interview with the applicant on 28 June 2022, the Secretary-General of the EEAS, as appeal assessor, confirmed the appraisal drawn up by the applicant’s immediate superior, dated 13 July 2022.

11On 19 August 2022, the applicant lodged a complaint under Article 90(2) of the Staff Regulations in respect of the contested appraisal report.

12On 25 October 2022, the EEAS authority empowered to conclude contracts of employment decided to close without further action the administrative investigation into alleged psychological harassment as regards the applicant’s immediate superior.

13On 20 December 2022, the decision rejecting the applicant’s complaint was adopted.

Forms of order sought

14The applicant claims that the Court should:– annul the contested appraisal report;– annul, if necessary, the decision rejecting the claim;– order the EEAS to pay the costs.

15The EEAS contends that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

Subject matter of the action

16By the second head of claim, the applicant seeks annulment, in so far as necessary, of the decision rejecting the complaint.

17According to settled case-law, where a decision rejecting a complaint lacks any independent content, claims formally directed against that decision have the effect of bringing before the Court the act against which the complaint was submitted (see judgment of 14 December 2017, RL v Court of Justice of the European Union, T‑21/17, EU:T:2017:907, paragraph 26 and the case-law cited).

18In the present case, the decision rejecting the complaint lacks any independent content, since it merely confirms the contested appraisal report and clarifies the EEAS’s reasoning by responding to the applicant’s criticisms of it. That decision confirms, first, as the appeal assessor did, the absence of bias and the absence of a conflict of interests on the part of the applicant’s reporting officer and the validity of the appeal proceedings and, secondly, the appraisal of the applicant’s level of performance for 2021.

19Accordingly, the action must be regarded as being directed against the contested appraisal report, the lawfulness of which must be examined by also taking into account the statement of reasons in the decision rejecting the complaint (see, to that effect, judgment of 9 November 2022, QM v Europol, T‑164/21, EU:T:2022:695, paragraph 40 and the case-law cited).

Substance

20In support of his action, the applicant relies on two pleas in law, alleging, first, infringement of the rules applicable to the appraisal procedure, of Articles 11a, 12a and 24 of the Staff Regulations and a lack of objectivity and impartiality on the part of the reporting officer and, secondly, a manifest error of assessment and misuse of powers.

21As regards the first plea, as a preliminary point, it should be noted that Article 24 of the Staff Regulations refers to the administration’s duty to provide assistance to its officials and other members of staff who are the subject, inter alia, of psychological harassment. The subject matter of the present action is limited to an application for annulment of the contested appraisal report. It follows that the present action does not concern an application for annulment of an act in connection with the request for assistance submitted by the applicant. Consequently, the reliance on that provision must be rejected as ineffective.

22That having been clarified, the present plea is divided into two parts, alleging, first, a lack of objectivity and impartiality on the part of the applicant’s reporting officer and, secondly, infringement of the rules applicable to the appraisal procedure.

23In the context of the first part of the first plea, the applicant submits that, at the time the contested appraisal report was drawn up, not only had he submitted a request for assistance in respect of acts of harassment allegedly committed by his immediate superior, but the administration had decided to open an administrative investigation in respect of the latter, which was not closed at the time when that report was adopted. In that context, it was unlikely that his immediate superior, who was the subject of that investigation, would remain neutral and impartial with regard to the applicant.

24The applicant claims that, during the appraisal interview with his immediate superior, the latter criticised him for having brought proceedings against him. Thus, the EEAS should have considered that his immediate superior was neither objectively nor subjectively impartial with regard to him and appointed another reporting officer for the appraisal procedure for 2021, as permitted by Decision ADMIN(2022) 3 of the Secretary-General of the European External Action Service of 24 January 2022 adopting general provisions implementing Article 43 and the first paragraph of Article 44 of the Staff Regulations on Appraisal Reports for Officials and Temporary Agents.

25The applicant submits that the EEAS should not have followed the appraisal procedure in the usual manner and could have appointed another reporting officer or suspended the appraisal procedure.

26The applicant concludes that his immediate superior had a conflict of interests for the purposes of Article 11a of the Staff Regulations.

27The EEAS contends that, in accordance with the case-law, the fact that the processing of the applicant’s request for assistance and the related administrative investigation took place during the appraisal procedure does not mean that the applicant’s immediate superior was biased or had a conflict of interests. Thus, to relieve the applicant’s immediate superior of his duties as reporting officer or to suspend the appraisal procedure would have undermined his presumption of impartiality and innocence and prejudged the results of the investigation opened following the applicant’s request for assistance. Moreover, the suspension of the appraisal procedure is neither provided for nor appropriate in the light of the case-law and the applicable rules of the Staff Regulations and Decision ADMIN(2022) 3.

28The EEAS submits that, in any event, the administrative investigation into the applicant’s immediate superior did not conclude that the allegations of psychological harassment he had made were genuine.

29The EEAS concludes that the appraisal of the applicant, by his immediate superior, in the context of the appraisal exercise at issue, did not constitute a breach of the requirement of impartiality and did not put the immediate superior in a situation of conflict of interests, which is also clear from his assessments in the contested appraisal report. Apart from the fact that a request for assistance was being processed and there was an administrative investigation concerning the applicant’s immediate superior, the applicant does not rely on any other evidence capable of establishing a breach of the requirement of impartiality and of the obligations laid down by Article 11a of the Staff Regulations. The applicant relies on either evidence rejected during the administrative investigation or alleged conduct of his immediate superior which he has not substantiated.

30In the present case, it should be recalled at the outset that the conflict of interests is merely a variant of the defect of bias, since the requirement of impartiality covers all circumstances which an official or agent who is called upon to decide on an issue must reasonably consider as being such a nature as to be viewed by third parties as a possible source of impairment of his or her independence (see judgment of 10 February 2021, Spadafora v Commission, T‑130/19, not published, EU:T:2021:74, paragraph 99 and the case-law cited).

31In that regard, it should be noted that the duty of impartiality incumbent on officials is enshrined in the first paragraph of Article 11 of the Staff Regulations, under which an official is to carry out the duties assigned to him or her objectively and impartially.

32It must also be noted that the institutions, bodies, offices and agencies of the European Union are required to respect the fundamental rights guaranteed by EU law, which include the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (see judgment of 3 December 2019, Pethke v EUIPO, T‑808/17, EU:T:2019:832, paragraph 43 and the case-law cited).

33Article 41(1) of the Charter of Fundamental Rights states, inter alia, that every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union.

34It is apparent from settled case-law that it is incumbent upon the institutions, bodies, offices and agencies of the European Union to comply with the requirement of impartiality in its two components, which are, on the one hand, subjective impartiality, whereby no member of the institution concerned may show personal bias or prejudice, and, on the other hand, objective impartiality, according to which that institution must offer sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of the institution concerned (see judgment of 25 February 2021, Dalli v Commission, C‑615/19 P, EU:C:2021:133, paragraph 112 and the case-law cited). The Court of Justice has clarified in that respect that, in order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled (judgments of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 37, and of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 54).

35It is in the light of those considerations that the first part of the first plea in law must be examined.

36In the present case, the applicant challenges the subjective and objective impartiality of his immediate superior acting as reporting officer.

37As regards, in particular, the objective impartiality of his immediate superior, the applicant refers to the administrative investigation still pending against that immediate superior at the time of the appraisal procedure.

38In that regard, as the EEAS submits, in accordance with settled case-law, where a request for assistance within the meaning of Article 24 of the Staff Regulations is made to the authority vested with the appointing powers of an institution pursuant to Article 90(1) of the Staff Regulations, it must in particular conduct an administrative inquiry, with the cooperation of the complainant, if the official who is seeking the protection of his institution provides prima facie evidence of the attacks of which he claims to have been the victim, to determine the facts which gave rise to the complaint (judgments of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 46, and of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 97).

39Accordingly, on 15 June 2021, in deciding to open the administrative investigation in respect of the applicant’s immediate superior, the EEAS considered that the applicant had provided prima facie evidence against him.

40Such a situation is capable of giving rise, in the eyes of third parties, to a legitimate doubt concerning possible bias on the part of the applicant’s immediate superior in the performance of his duties as the applicant’s reporting officer.

41In circumstances such as those in the present case, the EEAS cannot rely on a presumption of impartiality in favour of the applicant’s immediate superior. Nor can it rely on the case-law according to which the fact that a staff member has lodged a complaint of harassment against the official 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 judgments of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 94 and the case-law cited, and of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 207). As is apparent from the case-law cited in paragraph 34 above, as regards a breach of the obligation of objective impartiality, it is not necessary to establish a lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled. Accordingly, arguments seeking to establish the lack of subjective impartiality on the part of the applicant’s immediate superior cannot succeed. In addition, in the present case, apart from the lodging of the complaint by the applicant, the EEAS also opened an administrative investigation.

42As is apparent from paragraph 4 above, the applicant submitted his request for assistance based on Article 24 of the Staff Regulations on 18 February 2021. As stated in paragraph 5 above, the procedure for assessing the applicant’s level of performance relating to 2021 was initiated on 2 February 2022, that is to say, almost a year after the lodging of that request. In addition, the administrative inquiry was opened on 15 June 2021 in respect of alleged psychological harassment concerning the applicant’s immediate superior. Accordingly, the EEAS had a sufficient period to take appropriate measures to avoid any risk of objective impartiality with regard to the applicant’s immediate superior in his capacity as reporting officer for the latter.

43In addition, at the time when the interview between the applicant and his immediate superior as reporting officer took place, namely 6 May 2022, which preceded the appraisal report, and at the time when that report was signed by the reporting officer, namely 2 June 2022, the outcome of the administrative investigation referred to in paragraph 42 above was not yet known, since that investigation was closed only on 25 October 2022 (see paragraph 12 above). It is true that that administrative investigation was closed without further action, but that outcome of the investigation was not known at the time of the appraisal procedure.

44In such circumstances, the applicant is justified in claiming that the EEAS did not organise the appraisal procedure relating to the 2021 financial year in such a way as to offer him sufficient guarantees as to the reporting officer’s objective impartiality.

45However, according to settled case-law, a procedural irregularity can justify the annulment of an act only if, without such an irregularity, the outcome of the procedure might have been different (see judgment of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 44 and the case-law cited).

46In the context of that examination, it is necessary to take account of all the circumstances of the case and, in particular, of the nature of the allegations and the scale of the procedural irregularities committed in relation to the guarantees which the staff member may have been given (see judgment of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 45 and the case-law cited).

47In the present case, the irregularity found, namely the lack of objective impartiality on the part of the applicant’s immediate superior acting as reporting officer, within the meaning of the case-law cited in paragraph 45 above, entails that the applicant’s immediate superior does not satisfy the criterion of impartiality necessary to assume the role of reporting officer in relation to the applicant. As is apparent from paragraph 40 above, the appraisal of the applicant’s performance by his immediate superior before the closure of the procedure relating to the psychological harassment alleged against the latter was capable of giving rise to a legitimate doubt in the eyes of third parties concerning possible bias.

48In that regard, it should be noted that, according to the case-law, reporting officers have the widest discretion when judging the work of people whom they are responsible for assessing and it is not for the Court to review the merits of that assessment, containing complex value judgments which, by their nature, are not susceptible of objective verification, except in the event of manifest error (see judgments of 23 September 2020, VE v ESMA, T‑77/18 and T‑567/18, not published, EU:T:2020:420, paragraph 90 and the case-law cited, and of 13 July 2022, TL v Commission, T‑677/21, not published, EU:T:2022:456, paragraph 38).

49In those circumstances, in view of the widest discretion enjoyed by reporting officers, it cannot be ruled out that the appraisal procedure in question could have led to a different result in the absence of the irregularity found, namely the lack of objective impartiality on the part of the applicant’s immediate superior acting as reporting officer, in particular if the duties of that person’s reporting officer had been assumed by another person.

50In view of the foregoing, the first part of the first plea in law must be upheld.

51Consequently, the contested appraisal report must be annulled, without it being necessary to examine the second part of the first plea in law and the second plea in law, relied on by the applicant, or the admissibility of the evidence produced by the EEAS in its response to the measures of organisation of procedure adopted by the Court.

Costs

52Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

53Since the EEAS has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

Operative part

On those grounds,THE GENERAL COURT (Fourth Chamber)hereby:

1.Annuls the appraisal report of Mr Jean-Marc Colombani for 2021;

2.Orders the European External Action Service (EEAS) to pay the costs.

Delivered in open court in Luxembourg on 4 December 2024.