The background

1. The complainant worked as a contract agent at the European Centre for Disease Prevention and Control (the 'ECDC'). In 2012, his superiors invited him to attend a meeting with his line manager to discuss his performance during 2011 (the 'Appraisal Dialogue'). The complainant refused. When, later that year, the ECDC terminated the complainant's employment, his appraisal report (the '2011 Appraisal Report') had not yet been drawn up.

2. The complainant then contacted the European Ombudsman, alleging that the ECDC's failure to draw up his 2011 Appraisal Report was unlawful and claiming that he should receive that report. When opening the inquiry, the Ombudsman encouraged the ECDC to consider preparing and sending to the complainant a draft 2011 Appraisal Report, even if no formal dialogue could take place. The ECDC refused, arguing that the meeting was compulsory and that it had given the complainant ample opportunity to attend it. In addition, the complainant no longer worked in the ECDC. He, therefore, lost any interest he may have had in obtaining his 2011 Appraisal Report. Consequently, in the ECDC's view, it no longer needed to draw up that report[1].

Allegation of unlawful failure to draw up the appraisal report and related claim

The Ombudsman's draft recommendation  

3.  The Ombudsman emphasised that, to her knowledge, there is no provision in the Staff Regulations of Officials of the European Union (the 'SR') that would make an appraisal report necessarily dependent on a prior face-to-face dialogue between the jobholder and his line manager. Article 43 of the SR lays down an obligation for Institutions to issue appraisal reports[2]. This obligation appears to have been confirmed by the Court of Justice of the European Union (the 'CJEU')[3]. The right to receive an appraisal report is thus enjoyed by all staff, both current and past, and in any circumstances. The ECDC's making the issuance of the complainant's 2011 Appraisal Report dependent on a prior formal dialogue between him and his immediate superior amounted, therefore, if not to a violation of Article 43 of the SR, certainly to an overly restrictive interpretation of its rules on the appraisal procedure. Similarly, the ECDC rules, namely Article 1(4) of its Rule 20, according to which staff members who have left or who are in the process of leaving the agency would have their annual report issued only if they asked for it[4], appeared to run counter to Article 43 of the SR. Considering that staff members have a legitimate interest in receiving an appraisal report which can be used and relied upon in their future life and career[5], the Ombudsman addressed, on 27 May 2014, a draft recommendation to the ECDC that it:

"(i) prepare and send to the complainant a draft 2011 Appraisal Report; and

(ii) carefully consider whether Rule 20, or any other of its internal rules, is compatible with Article 43 of the Staff Regulations. The ECDC should amend all incompatible rules."

4. On 18 August 2014, the ECDC replied that it had prepared and sent to the complainant, on 12 August 2014, a draft 2011 Appraisal Report. Acknowledging that it may have been "too restrictive" in its interpretation of Rule 20, it stated that it would change that approach in such a way that, even if no appraisal dialogue can be carried out, the ECDC will still issue the appraisal report to the jobholder.

5. As regards the Ombudsman's recommendation that it should change all internal rules which may be incompatible with Article 43 of the SR, the ECDC stated that its Rule 20 was based on the Commission rules that were applicable at the time of its adoption and approved by that institution, following an extensive inter-service consultation. The Commission was developing, in cooperation with the network of the agencies, new implementing rules on appraisals to be adopted in the agencies. The ECDC was confident that the new implementing rules on appraisals would be reviewed by the Commission to ensure full compliance with the SR. The ECDC will adopt these new implementing rules once they are available and adapt its internal processes accordingly.

6. On 30 September 2014, the complainant informed the Ombudsman that he received the draft appraisal report from the ECDC.

The Ombudsman's assessment after the draft recommendation

7. The ECDC accepted the Ombudsman's draft recommendation. The Ombudsman welcomes the ECDC's willingness to bring its procedures into line with the applicable rules and case-law with respect to annual appraisals of staff. She, therefore, trusts that the ECDC will inform the Commission about the Ombudsman's analysis of the potential problems arising from the application of Rule 20 so that the Commission can take it into consideration when reviewing the implementing rules on appraisals to be applied by the agencies. The Ombudsman will make a further remark in this respect below.

Conclusions

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The ECDC accepted the Ombudsman's draft recommendation.

The complainant and the Director of the ECDC will be informed of this decision.

Further remark

The Ombudsman trusts that the ECDC will inform the Commission about her analysis of the potential problems arising from the application of Rule 20 so that the Commission can take it into consideration when reviewing the implementing rules on appraisals to be applied by the agencies.

The Ombudsman invites the ECDC to inform her about the developments in the above review.

 

Emily O'Reilly

Done in Strasbourg on 3 November 2014