Strasbourg, 4 March 2005

Dear X.,

On 27 August 2003, you lodged a complaint with the European Ombudsman against the European Commission, concerning your staff report for the period 1999-2001.

On 21 October 2003, I forwarded your complaint to the President of the Commission. The Commission sent its opinion on 9 February 2004, which I forwarded to you with an invitation to make observations. On 13 April 2004, I received your observations on the Commission's opinion. On 1 February 2005, you forwarded additional information to me.

At your request, your complaint has been dealt with confidentially.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

The facts of the case according to the complainant are, in summary, as follows:

On 5 November 2001, the complainant received his staff report for the period 1999-2001. As compared with his previous report, the marks awarded for his performance had been reduced from 34 to 31 points. His marks had been reduced from very high to good as regards his adaptation skills, and from outstanding to very good in the human relations section. The complainant was not given any explanation either of the reasons for this reduction of his marks, or about the criteria upon which such evaluation had been based. He requested that his score be modified but, on 4 December 2001, the final assessor confirmed the first assessor's evaluation. The complainant then requested that his report be referred to the Reports Committee for an opinion.

Having reviewed the content of the complainant's staff report, the Reports Committee concluded that the assessors had failed to provide sufficient reasoning in support of their assessment. Accordingly, the Committee requested that the final assessor provide the complainant with a detailed explanation.

Following two interviews with the complainant, the final assessor sent his a written note dated 1 August 2002 in which he explained that the reduction of the complainant's marks resulted from the use of new, stricter criteria which were to be applied to all staff performing similar functions in the relevant Directorate. Even though the complainant asked for a more detailed explanation of the nature of these criteria, no further information was given to his.

Since the complainant considered that the Commission had not replied to his request regarding the criteria used by the assessors and the reasons for the reduction of his marks, he lodged an appeal with the appointing authority on 15 November 2002, pursuant to Article 90 (2) of the Staff Regulations. In reply to his appeal, the appointing authority concluded on 16 April 2003 that his staff report had been properly completed and that no further explanations were needed to conclude the procedure. Accordingly, it turned down the complainant's request.

The appointing authority argued that the reduction in the complainant's marks was a result of the new evaluation criteria applied to all staff performing similar functions in his DG.

The complaint to the Ombudsman contained a number of annexes which included, among others, a copy of the complainant's staff report, his exchanges with the Commission, and a legal memorandum, prepared by the complainant's attorney. This memorandum argued that the Commission had failed to include any reasoning with the complainant's staff report and had failed to provide his with the information he had requested about the evaluation criteria used by the assessors.

In view of the information submitted by the complainant, the Ombudsman asked the Commission to submit an opinion on the following allegations:

The Commission failed to:

(i) give any reasoning for the reduction of some of the marks given in the complainant's report, which were inferior to those of previous years; and,

(ii) to inform his of the applicable evaluation criteria.

THE INQUIRY

The Commission's opinion

In summary, the Commission addressed the two allegations made by the complainant as follows:

As regards the Commission's alleged failure to give any reasoning for the reduction of some of the complainant's marks, the institution acknowledged that, given the wide discretionary power of assessors, it is important that marks which are less favourable than those of the previous staff report are justified and consistent with the comments related to them. It agreed that the staff report would have been substantially vitiated in its form if the absence of reasoning had adversely affected the complainant’s right to be heard. In the complainant's case, however, the Commission took the view that the final assessor had provided sufficient reasoning for the reduction of some of the marks by referring to the need to harmonise his evaluation on the basis of the same criteria applied for evaluating people with the same duties in the same Directorate. In this context, the Commission referred to the existing case-law on the subject which stipulates that the reasoning of marks or points awarded has to be “sufficient”.

The Commission argued that the complainant based his allegations on the wrong presumption that no other element within his evaluation procedure other than his assessors had changed. In its reply of 16 April 2003, the appointing authority underlined that the complainant did not contest the description of his duties and that these had indeed changed in relation to the previous evaluation period. Each evaluation refers to the performance by the official of a number of tasks during a specific period.

The Commission explained that the Community courts have stated that the marks in the staff report constitute an assessment made by the hierarchical superiors, in their capacity as assessors, which is a matter for their personal judgement alone, and that it is neither for the courts nor for the Appointing Authority to substitute its own assessment. In light of the above, the Commission stressed that the explanations given by the assessors for the level of assessment were consistent and sufficient.

In relation to the Commission's alleged failure to inform the complainant of the criteria applied by the assessors, the institution explained that these criteria were the same as those indicated in the staff report for the relevant period, and that they must be the same for all the officials assessed. These criteria were listed in the Appointing Authority’s decision of 16 April 2003 which included an evaluation guide.

The complainant's observations

In his observations on the Commission’s opinion, the complainant repeated the allegations made in his complaint.

He enclosed with his observations a memorandum prepared by his attorneys regarding the Commission's opinion. According to the memorandum, the assessors should have carried out an individual assessment of the complainant, and therefore any consideration regarding the qualifications or the criteria applicable to other officials should not have been relevant for their assessment. Otherwise, the Commission would have taken into account criteria which did not relate to the object of the report, namely the complainant's qualifications. The memorandum pointed out that the Commission repeatedly alluded to these new criteria, but when asked to produce them, it referred instead to the criteria applicable to all the Commission staff as set out in the evaluation guide.

The complainant underlined that, despite his requests, no written explanations have been given to justify the marks awarded. He added that the Commission had only been able to refer to the reasoning given orally by the final assessor. In the absence of these elements, no objective control by the Community courts could have taken place.

The complainant also contested the argument put forward by the Commission that the difference in marks resulted from the change in the tasks assigned to the complainant. In his view, the tasks assigned to his had not changed. He noted that the institution had not made any reference to this argument in its previous replies, in particular in the Appointing Authority's reply of 16 April 2003.

On 1 February 2005, the complainant forwarded additional information to the Ombudsman, including a copy of his staff report for the period 1997-1999. In an informal telephone contact with the Ombudsman's services, he also made clear that the aim of his complaint was to have the Commission's maladministration confirmed, and that he does not seek any other redress.

THE DECISION

1 Reasoning for the reduction of some of the complainant's marks

1.1 The complainant alleges that the Commission failed to give any reasoning for the reduction of some of the marks in his staff report for the period 1999-2001 as compared to the previous report.

1.2 The Commission argues that the staff report constitutes an assessment made by the hierarchical superiors, in their capacity as assessors, which is a matter for their personal judgement alone. It notes that, as regards the complainant's report, the final assessor provided sufficient reasoning for the reduction of some of the marks by referring to the need to harmonise his evaluation with the criteria applied for evaluating people with the same duties in his Directorate. The institution takes the view that the explanations given by the assessors for the level of assessment were coherent and sufficient.

1.3 The Ombudsman notes that, as provided in Article 43 of the Staff Regulations of Officials of the European Communities, the ability, efficiency and conduct in the service of each official must be the subject of a periodical report made at least once every two years. The Ombudsman also notes that these reports, as any other decision taken by a EU institution, must respect the conditions laid down in Article 25 (2) of the Staff Regulations which states that:

"[...] Any decision adversely affecting an official shall state the grounds on which it is based".

In order to implement Article 43 of the Staff Regulations, the Commission adopted, on 27 July 1979, a set of General Provisions. Article 5 of the General Provisions indicates that:

"[...] Explanations must be provided for any change in the analytical assessment since the previous report".

Furthermore, the Commission's Guide to Staff Reports applicable at the time states in point B.6.3.2 that the assessor should provide as explicit as possible a justification for changes in the analytical assessment as compared with the previous staff report.

1.4 In interpreting these provisions, Community courts have consistently held that the Administration has a duty to state reasons for the contents of a staff report in a clear and concise way, in particular when the marks included in the report have suffered a regression from the previous report(1). The duty to state reasons for any deterioration in relation to the previous staff report is intended to enable the official to know why the analytical assessment has changed, to verify the factors relied upon and hence to submit his observations on the statement of reasons in use of his right to be heard(2). In this context, Community courts have established that the statement of grounds set forth by the Administration must be "sufficient", even if summary, to justify the deterioration of the marks awarded(3).

1.5 In view of the information submitted in the course of the Ombudsman's inquiry, it appears that the information included in the complainant's report to explain the marks awarded to his as regards adaptation skills and human relations, were as follows:

● Efficiency (in which the sub-section adaptation skills was included):

"The tasks assigned [to the official] are carried out with care and rapidly. These tasks are always performed in a precise and rapid manner."

● Conduct in the service (in which the sub-section human relations was included):

"The very sociable character [of the official] makes him an official with a good team spirit and a good sense of collaboration".

1.6 Having reviewed the above reasoning, the Ombudsman finds that it does not provide any ground to justify a regression in the marks awarded to the complainant.

1.7 The Ombudsman is mindful of the fact that the original report is to be read in conjunction with the comments added by the final assessor in his note of 1 August 2002 which explained that the reduction of the complainant's marks resulted from the use of new, stricter criteria which were to be applied to all staff performing similar functions in his Directorate. The Commission, however, did not provide any additional information on the nature or the contents of these criteria.

In the absence of any details regarding these criteria, the complainant could not have verified the factors relied upon by the Commission to reduce his marks, so as to enable his to submit observations. Moreover, without that information, it is not possible to assert whether these criteria bore any direct relationship with the object of the report, namely the qualifications of the complainant. The Ombudsman therefore takes the view that this justification did not provide a sufficient reasoning.

1.8 The Ombudsman notes that the Commission explained in its opinion that the duties assigned to the complainant during the evaluation period were different from those of his previous report, and therefore the institution seemingly implied that the change might have proved relevant in the assessment carried out in his report.

Having carefully reviewed the description of the duties carried out by the complainant as described in point 3 of both, the contested (period 1.07.1999-30.06.2001) and the previous report (period 01.07.1997-30.06.1999), the Ombudsman has concluded that the tasks assigned to the complainant appear to be identical since 1 March 1999. Moreover, his duties before and after that date appear to be very similar. The Ombudsman therefore considers that this is not a convincing argument to justify the reduction of the complainant's marks.

1.9 In view of the above, the Ombudsman has concluded that the Commission did not provide sufficient grounds to justify the regression of the marks awarded to the complainant in his report for the period 1999-2001, so that he may have been in a position to verify the factors relied upon by the institution and subsequently submit observations. By not doing so, the Commission failed to comply with the obligations set out in Article 25 of the Staff Rules, its General Provisions Implementing Article 43 of the Staff Rules and its Guide to Staff Reports.

This constitutes an instance of maladministration. A critical remark will be addressed to the Commission.

2 Information on evaluation criteria

2.1 The complainant alleges that the Commission failed to inform him of the evaluation criteria applied in his report, and which resulted in a reduction of his marks. Since the final assessor argued that the situation was due to the use of new, stricter criteria applicable to all staff performing similar functions in his Directorate, the complainant unsuccessfully asked for a description of these criteria.

2.2 The Commission explains that the evaluation criteria applied to the complainant's assessment are those indicated in the staff report for the relevant period which must be the same for all officials assessed. These evaluation criteria were listed in the Appointing Authority’s decision of 16 April 2003 which included an evaluation guide.

2.3 The Ombudsman points out that the Commission had initially argued that the regression in the marks awarded to the complainant resulted from the use of new, stricter criteria which were to be applied to all staff performing similar functions in the Informatics Directorate.

The Ombudsman finds strikingly contradictory that, in its opinion, the Commission appears to change course by stating that the evaluation criteria applied to the complainant were instead those applicable generally to all officials, having been published in its evaluation guide of 16 April 2003. It should first be noted that these criteria could have hardly been applied to the complainant's 1999-2001 report in a retroactive fashion. If that was, however, the case, the Commission should have provided that information to the complainant in reply to his numerous requests.

2.4 Taking into consideration the findings reached in point 1.7 of this decision, the Ombudsman does not consider it justified to pursue any further inquiries as regards this aspect of the case.

3 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark:

The Commission did not provide sufficient grounds to justify the regression of the marks awarded to the complainant in his report for the period 1999-2001, so that he could have been in a position to verify the factors relied upon by the institution and subsequently submit observations. By not doing so, the Commission failed to comply with the obligations set out in Article 25 of the Staff Rules, its General Provisions Implementing Article 43 of the Staff Rules and its Guide to Staff Reports.

Given that the complainant has informed the Ombudsman that he does not seek any redress other than confirmation that maladministration occurred, the Ombudsman considers it appropriate to close the case with the above critical remark.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Case T-187/01 Arnaldo Mellone v Commission [2002] ECR, par. 27 (see case-law referred thisein).

(2) Case T-1/91 Della Pietra v Commission [1992] ECR II, p. 2145, par. 30.

(3) Supra Della Pietra, par. 32.