Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

9 February 2017 (*)

(Appeal — Civil service — Officials — Appraisal report — 2011/2012 appraisal period — Distortion of facts — Error of law — Breach of fiduciary duty — Legitimate expectations)

In Case T‑271/15 P,

Appeal against the judgment of the Civil Service Tribunal [confidential], (1) seeking to have that judgment set aside,

LD, official of the European Union Intellectual Property Office (EUIPO), residing in [confidential] (Spain), represented by H. Tettenborn, lawyer,

applicant,

the other party to the proceedings being

European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė, acting as Agent,

defendant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed of M. Jaeger, President, H. Kanninen and M. van der Woude (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

1        By her appeal under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, LD seeks to have set aside the judgment of the Civil Service Tribunal (Third Chamber) [confidential](‘the judgment under appeal’), by which the Tribunal dismissed her action for annulment of her appraisal report covering the period from 1 October 2011 to 31 December 2012 (‘the 2011/2012 appraisal report’) and an order that the European Union Intellectual Property Office (EUIPO) pay her a sum of at least EUR 500 by way of damages.

 Background to the dispute

2        The background to the dispute is set out in paragraphs 3 to 16 of the judgment under appeal, as follows:

‘3      [LD], an official in the administrator (AD) function group at grade AD 9, has been employed as an examiner at OHIM since 2001. In accordance with Article 131 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), her main task is to examine Community trade mark applications in the intellectual property field, particularly with regard to “absolute” grounds for refusal of registration, as listed in Article 7 of that regulation. She is currently employed at OHIM’s “Operations” department and deals, in particular, with applications for registration filed in Finnish.

4      [LD] was on sick leave from 2 to 9 March 2012 and then worked on a half-time basis, on medical grounds, until and including 1 June 2012.

5      On 22 March 2012, [LD] signed a “Development Plan 2011/2012” (“the Development Plan”) with her three line managers. The purpose of such a plan, implemented internally, is to restore the professional potential of the member of staff concerned by setting him attainable objectives and providing him with the necessary support. Noting that [LD]’s insufficient level of performance in the previous years called for specific measures to be taken, and in accordance with that plan, her objectives were reduced by 20% in relation to the objectives normally set for an examiner in her department, working on refusal decisions on absolute grounds, and therefore changed, for 12 months of activity, from 118 to 94.4 points, which were then reduced to 79.86 points to take account of her periods of sick leave in 2012. The objective in respect of the entire appraisal period, from 1 October 2011 to 31 December 2012, that is, for 15 months, was finally set at 103.46 points.

6      The Development Plan stated that “if [[LD] met] this adjusted target and all other elements of her performance [were] in line with this[, a general] evaluation at … level 4 ([o]verall, the efficiency, the abilities and the aspects of conduct appraised correspond to the level required for the post occupied) [would be] envisaged”.

7      On 12 March 2013, [LD] was sent an initial version of her 2011/2012 appraisal report. In it, the general assessment was determined at level 6 (“[t]he efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied. Improvements are needed”). [LD] challenged the content of that report and requested a meeting with her three line managers, who, in essence, did not grant her request for amendment of the report.

8      [LD] brought an action against her 2011/2012 appraisal report before the Joint Evaluation and Promotion Committee (“the JEPC”), in accordance with the provisions of Article 15 of the [general implementing provisions, “GIP“] of 15 April 2013.

9      The JEPC issued its opinion on 8 May 2013 and unanimously recommended that the general assessment in the 2011/2012 appraisal report be amended and determined at level 5 (“[t]he efficiency, the abilities and the aspects of conduct appraised are acceptable despite some weak points”).

10      [LD]’s reporting officer nevertheless informed the JEPC that she would not follow its recommendation and explained, in a note of 23 May 2013, copied to [LD] and to the Director of the “Operations” department, the reasons which warranted her maintaining her general assessment of [LD]’s merits at level 6.

11      [LD] read the definitive version of her 2011/2012 appraisal report on 24 May 2013, and submitted a complaint, under Article 90(2) of the Staff Regulations, against that report on 23 August 2013.

12      The 2011/2012 appraisal report states, inter alia, in the “Objectives” section, that 35% of [LD]’s decisions were not in time, which is a notably higher percentage than the service average, which is in the order of 11%.

13      It also states, in the “Competencies” section, that [LD] “invests a lot of time in assuring [the] good quality of her decisions … but she is faced with [the] continuous challenge [of meeting] her quantitative and timeliness objectives without sacrificing her personal standard of quality”. That report also states that [LD] “takes responsibility for tasks and approaches them proactively[,] but [still] needs to find a balance between the quality of her work and the volume and timeliness”. [LD] must “[a]lso … learn to balance … the workload in a way that complex cases/new instructions [do not] severely block output”.

14      The general assessment, at level 6, states that the “efficiency, the abilities and the aspects of conduct appraised do not correspond to the level required for the post occupied” and that “[i]mprovements are needed”.

15      The reporting officer’s final assessment also contains the following comments:

“[LD] is very diligent and meticulous when it comes to the quality of her tasks, however at times this precludes her from [meeting] the volume and timeliness standards. [LD] … analyses her files [very thoroughly] and develops a strategy before starting to draft[,] thus changes in practice, new rules or tools [unbalance] her and she needs time to adjust her working methods. … [LD] should try to be more flexible in adapting her agenda to [the] changing working environment of the [O]ffice and she should also try to … manage herself [better] in order to reach acceptable timeliness standards …”

16      The complaint was rejected by decision of the President of OHIM of 11 December 2013.’

 Proceedings at first instance and the judgment under appeal

3        By application lodged at the Registry of the Tribunal on 21 March 2014, LD sought the annulment of her 2011/2012 appraisal report and an order that the EUIPO pay her a sum of at least EUR 500 by way of damages.

4        LD put forward nine pleas in law in support of her action, alleging: (i) breach of the principle of sound administration; (ii) infringement of the procedural requirements concerning assessment laid down in the general implementing provisions (‘GIP’); (iii) breach of the general principles laid down in the ‘Reporting officer’s practical dossier’ in force at EUIPO; (iv) error of fact; (v) manifest error of assessment; (vi) insufficient and contradictory statement of reasons; (vii) breach of the principle of protection of legitimate expectations.

5        Having rejected the first three pleas, the Tribunal examined the fourth and fifth pleas, alleging an error of fact and a manifest error of assessment, together.

6        In the course of its examination the Tribunal first dismissed the arguments concerning the quantitative appraisal and the number of points obtained, on the following grounds:

‘47      Whereas [LD] does not contest the number of points obtained, she points out, in the first place, that the overall objective of 103.46 points for the reference period could not be set for her in view of her state of health, which did not allow her, in particular, to do the overtime needed to meet that objective.

48      That argument cannot be accepted, however, since it is clear from the Development Plan that the objectives set for [LD] were specifically adjusted downwards to account for her sick leave and her work on a half-time basis from March to June 2012, from 94.4 points to 79.86 points for 2012, according to a method of calculation detailed and presented in the Development Plan itself. Moreover, [LD] did not adduce any evidence that that figure is vitiated by a manifest error in not taking properly into account the reduction in actual hours worked during the period at issue as a result of her state of health, and that, consequently, meeting the objectives would have required her to work overtime in excess of normal working hours. In that regard, the documents that she submitted to the Tribunal some days before the hearing, with regard in particular to the medical certificate drawn up by her general practitioner on 22 September 2014, even if they are admissible, do not provide any new information that could call into question such a conclusion.

…

50      In the second place, [LD] submits that the complexity of her cases, due in particular to the fact that she had to examine absolute grounds for refusal of registration, and that she worked in Finnish and was the only person able to do so for a part of 2012 because of a lack of examiners in that language, largely explains the insufficient number of points obtained, without being capable of calling into question her personal abilities.

…

52      Secondly, it is not disputed that the classification of the level of difficulty of tasks related to absolute grounds for refusal, as OHIM contends, is different from that which exists for the tasks related to processing decisions to refuse registration on relative grounds, and therefore the Office takes into account the level of complexity of the cases in the appraisal of the performance of its members of staff. In the absence of elements capable of establishing that the difficulty of the cases that [LD] had to handle during the reference period was manifestly uncommon and required abilities greater than those that the administration is entitled to expect of a member of staff with the grade, seniority and experience of [LD], a grade AD 9 official working for OHIM since 2001 and dealing since that date, essentially, with decisions refusing registration on absolute grounds in Finnish and English, that plea cannot succeed. Assuming that [LD] had, during the relevant appraisal period, not two, as the Office contends, but eight of the most complex cases to deal with in the department, such a fact, even if established, cannot prove a manifest error in the assessment of her performance, as it is not apparent from the case-file and the applicant, moreover, does not claim that that figure was manifestly greater than the number of difficult cases that an examiner of her level is, in principle, able to deal with in the course of an annual appraisal period.

…

57      In the fourth place, [LD] claims that she was, at the mid-term of the relevant appraisal period, able to meet her objectives, but that the implementation of the IP Translator judgment imposed significant constraints on her, beyond her control, which prevented her from achieving the expected results. The lack of clear instructions, she claims, amply explains the shortcomings in the results finally obtained.

58      In that regard, it is not seriously disputed that the implementation by OHIM of new rules for examining registration application cases following the IP Translator judgment resulted in a lengthening of the examination and procedural periods, which could have had the effect of slowing down the processing of cases. It is also established that the new procedures were only finalised and clarified at the end of 2012, that they could appear difficult to follow and that the examiners were not trained in the new methods until October 2012, which certainly did not allow [LD], from the middle of 2012, to have optimal working conditions to effectively deal with the applications she was responsible for.

59      It should be noted, however, that such consequences only related to the second half of 2012 and not the entire appraisal period at issue. Moreover, as [LD] acknowledges, OHIM granted a number of additional decision points for the tasks related to the adaptation to the new procedures following the IP Translator judgment, and [LD] has not demonstrated that such compensation was manifestly an underestimation or that she could benefit from it only for cases handled in 2013, as she was unable to finish any case affected by the consequences of the IP Translator judgment in respect of the contested appraisal period.

60      Furthermore, as OHIM argues, the examiners were all affected in much the same way by the consequences of the IP Translator judgment. All of the examiners, however, achieved a better performance than that of [LD], particularly with regard to timeliness, even though the objectives of the applicant were 20% less than the objectives usually set for an examiner in a comparable situation. Although [LD] contests the relevance of such a comparison, it is not apparent from the case-file that her situation was manifestly different from that of the other examiners, in particular as regards examiners working in a less widely used language and dealing with refusal on absolute grounds. Whereas OHIM produced for the file the results of all the examiners in [LD]’s service, including examiners working in a less widely used language, classifying [LD] as last in her service, the applicant did not adduce any evidence capable of establishing that her situation was manifestly different from that of her colleagues, in particular those working in a less widely used language. Moreover, [LD] did not provide any evidence to establish that Finnish cases were manifestly more difficult to handle than cases presented in other less widely used languages and OHIM can reasonably argue in that regard that the complexity of a file is also related to non-linguistic factors.

61      It is not contested by OHIM that the instructions for processing applications for registration of a Community trade mark submitted in less widely used languages, taking into account the IP Translator judgment, were communicated to the members of staff after those available in other languages. However, [LD] did not dispute the explanations provided by OHIM at the hearing, according to which [LD], for whom 30% of the cases to be handled were in English, had the benefit of instructions in English and training in the new case-law provided in that language for a significant part of her work. In those circumstances, and since training on the consequences of the IP Translator judgment was available in English before it was provided in other languages, the fact that she was not able to access that training in Finnish until a later date cannot have placed her at a disadvantage with regard to the rest of her colleagues.

…

63      Finally, the reporting officer was entitled to expect, in view of [LD]’s seniority and her extensive experience in dealing with decisions to refuse registration on absolute grounds, that she would adapt more effectively to the new working methods so that she could, in the words of the general assessment in the contested appraisal report, “better manage herself in order to reach acceptable timeliness standards”, without such a remark revealing any manifest error in her appraisal of [LD]’s way of working.

64      Fifth and finally, [LD] argues that the reporting officer could not, without vitiating her appraisal by a manifest error, assess her results by comparing them with the results obtained by other examiners, since they were not in a situation comparable to hers.

65      It must however be noted, at the outset, that contrary to what the applicant claims, setting the objectives assigned to [LD] at 20% below the level normally expected for an examiner in a comparable situation took into account her personal situation and was individualised in order to take into consideration the level of her performance in previous years and the need to define specific accompanying measures. The Development Plan signed with [LD] also duly took into account her absences and her working hours resulting from her health problems.

66      Furthermore, it should be noted that the appraisal of members of staff is not aimed at ranking them in relation to each other, but at appraising the skills and competencies of each, independently of those of other members of staff. While the appraisal report is an element taken into account for the purposes of promotion, [LD]’s performance, as OHIM rightly observes, was not judged on the basis of the results obtained by the other examiners, but was appraised in accordance with predetermined criteria common to all the examiners of her department. While the reporting officer stated in the contested appraisal report that, with 35% of her decisions out of time, [LD] was ranked well below the average in her department, of 11.3% of decisions out of time, it is not apparent from the reasoning of that report that the reporting officer considered that the general assessment of [LD] was level 6 on the ground that her performance ranked, in terms of timeliness, among the worst of other examiners in her department. Finally, whereas [LD] disputes the application of identical criteria to all the examiners, it is not in any event apparent from the case-file, and [LD] has not established, as stated in paragraph 60 of the present judgment, that she was in a different situation from that of the other examiners of the department and, in particular, those working in a less widely used language on decisions to refuse registration on absolute grounds for refusal. The complaint alleging that the contested appraisal report is vitiated by a manifest error in that it was drawn up by comparison with the performance of other examiners cannot, therefore, be accepted.’

7        The arguments concerning the qualitative appraisal and respect for deadlines were rejected by the Tribunal on the following grounds:

‘As regards, secondly, the comments relating to the competency “[s]elf management”, it should be noted that, despite the fact that the objectives were revised downwards during the year, [LD] failed to meet or observe the prescribed deadlines. Furthermore, in view of [LD]’s long experience and her high grade, the reporting officer could reasonably expect that she could examine difficult and complex cases within the deadlines. In those circumstances, the reporting officer, given her broad discretion, was entitled to find, without manifest error, that [LD] still had to “learn to balance … the workload” and “find a balance” between the quality of work and timeliness in order to better manage the consequences of new instructions on the handling of her cases and to conclude, in the absence of relevant evidence to the contrary, that that competency corresponded to the level of “basic knowledge”, assessed as “K”, and not the level expected for that competency, namely “proficient”, assessed as “P”.

75      The fact that the reporting officer remarked, under the heading “Conduct in the service”, that [LD] signals her absences and “actively organises her agenda before longer leaves” does not contradict, in itself, the conclusion set out in the preceding paragraph.

76      As regards the complaint alleging poor organisation of the service, [LD] does not provide, in any event, any evidence to establish that, as she claims, her delay in handling applications is largely due to the allocation, at the same time, of a large number of cases in Finnish, which she alone in the service was able to deal with. [LD] does not dispute, moreover, OHIM’s contention that the delays in processing cases were essentially identical for applications drafted in Finnish as for those in English, that is, in both of [LD]’s working languages. Moreover, the argument raised by [LD] at the hearing, alleging technical failures in the file management software regarding the calculation of deadlines, even if established, is not sufficiently substantiated to call into question the reality of the delays attributed to [LD] herself.

77      Finally, as already stated in paragraph 48 of the present judgment, the consequences of [LD]’s state of health in terms of working hours were duly taken into account in the Development Plan, and [LD] has not provided any specific evidence that could call into question OHIM’s contentions in that regard.

78      In light of all the foregoing, [LD] has not established that the assessment of the reporting officer, that 35% of [LD]’s cases were not dealt with in time, is vitiated by an error of fact or a manifest error.’

8        The Tribunal based its position on the following considerations in particular when it held, essentially, that the reporting officer was entitled to find, without manifest error in her assessment, that the overall level attained by LD merited only a mark of 6:

’85      While the [2011/2012 appraisal report] highlights [LD]’s qualities, it does, however, strongly qualify them. On the one hand, therefore, the appraisal points out that [LD] “is [a] very thorough examiner and delivers good quality work”, that “she thoroughly analyses the files”, that she “works independently also on very difficult cases” and that she “is highly responsible and does her job with utmost dedication”. On the other hand, however, the reporting officer also highlighted the professional shortcomings of [LD], noting that, although [LD] “is very diligent and meticulous … at times this precludes her from [meeting] the volume and timeliness standards”. The reporting officer also states that the “new rules or tools [unbalance] her and she needs time to adjust her working methods”, inviting [LD] to “be more flexible” and to “manage herself [better] in order to reach acceptable timeliness standards”. Such assessments reflect the balancing of the strengths and weaknesses of [LD], which could lead the reporting officer to find that improvements were still needed and that the required level was not achieved, without such an assessment of the general level revealing an inconsistency with both qualitative and quantitative appraisals of [LD]’s work during the period in question.’

9        Finally, the Tribunal rejected the plea alleging breach of the principle of protection of legitimate expectations in the following terms:

’95      In that regard, it should be noted that the Development Plan, as drafted, could have led to confusion in the mind of [LD], as it did not clearly state the consequences that failure to meet the objectives would have on her appraisal report. Notwithstanding that regrettable imprecision, it should be noted, as was stated in paragraph 87 of the present judgment, that the contested appraisal report is not vitiated, in any event, by any manifest error of assessment. In those circumstances, and without the need to recall the case-law definition of a breach of the principle of protection of legitimate expectations, since [LD] neither met the objectives set nor received an assessment corresponding to the level required for all the competencies appraised, the reporting officer was entitled to find that the general assessment of [LD]’s performance corresponded to level 6 and not level 4, without disregarding the principle of legitimate expectations nor the meaning of the Development Plan.’

 Procedure before the General Court and forms of order sought by the parties

10      By appeal lodged at the Registry of the General Court on 28 May 2015 LD brought this appeal. In addition, she submitted a request for anonymity, which was granted.

11      LD was authorised, pursuant to Article 201 of the Rules of Procedure of the General Court, to present a reply, which she did on 27 January 2016. EUIPO declined to lodge a rejoinder. The written procedure was brought to a close on that date.

12      No request for a hearing was submitted by the parties within the period prescribed by Article 207(1) of the Rules of Procedure.

13      On a proposal from the Judge-Rapporteur, since it considered that it had sufficient information available to it from the material in the file, the General Court decided to rule on the appeal without an oral part of the procedure, pursuant to Article 207(2) of the Rules of Procedure.

14      As a member of the Chamber was prevented from acting, the President of the Appeal Chamber designated another Judge to complete the Chamber pursuant to Article 17(2) of the Rules of Procedure.

15      LD claims that the Court should:

–        set aside the judgment under appeal;

–        annul the 2011/2012 appraisal report;

–        order EUIPO to pay her a sum of at least EUR 500 in compensation for the harm suffered;

–        order EUIPO to pay the costs.

16      EUIPO contends that the Court should:

–        dismiss the appeal;

–        dismiss the claim for damages;

–        order LD to pay the costs.

 The appeal

17      LD relies on four grounds of appeal. The first alleges distortion of the facts. By her second ground of appeal LD alleges that the Tribunal made an error of law in ruling that no manifest error of assessment of her performance could be detected in the finding that, of seven competencies assessed, five were considered to have met the level required for the post held. The third ground alleges an error of law in that the Tribunal rejected the complaint relating to breach of fiduciary duty. The fourth ground of appeal alleges an error of law in that the Tribunal dismissed the plea alleging infringement of the principle of the protection of legitimate expectations.

18      EUIPO maintains that the appeal is manifestly inadmissible in its entirety and is, in any event, unfounded. In support of its plea of inadmissibility, it alleges essentially that the appeal is based on the same pleas and arguments as those relied on at first instance and that LD is in fact challenging the assessment of the facts by the Tribunal.

 First ground of appeal: distortion of the facts

19      This ground of appeal is expressed in two parts. LD argues essentially that the Tribunal distorted the facts as regards, (i) the effects of her medical problems on her respect for deadlines for the performance of tasks, (ii) the fact that it was impossible for her to meet deadlines in that she was the only examiner working in Finnish, for the first part of the appraisal period at issue, then one of two examiners working in Finnish during the second part of that period, (iii) the high number of complex cases she dealt with and the extra time required for that purpose, (iv) the negative repercussions of the implementation of the judgment of 19 June 2012, Chartered Institute of Patent Attorneys (‘IP Translator’) (C‑307/10, EU:C:2012:361), on her productivity and respect for deadlines and, (v) the time limits imposed on her for processing files compared with those imposed on the other examiners.

20      EUIPO contests LD’s arguments.

21      Under Article 257(3) TFEU and Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal to the General Court must be limited to points of law. It is settled case-law that the court at first instance has exclusive jurisdiction to establish the facts, except where a substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts, save where the evidence adduced before it has been distorted, provided such distortion is obvious from the documents on the file, without there being any need to carry out a new assessment of the facts and the evidence or, indeed, to have recourse to new evidence (order of 19 December 2013, da Silva Tenreiro v Commission, T‑634/11 P, EU:T:2013:720, paragraph 35).

22      In addition, according to case-law, where an appellant alleges the distortion of evidence by the Tribunal, he must indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led to such distortion (see, to that effect, judgment of 25 October 2007, Komninou and Others v Commission, C‑167/06 P, not published, EU:C:2007:633, paragraph 41).

 The first part, alleging distortion of the facts as regards the effects of LD’s health problems on her respect for deadlines for the completion of tasks

23      LD alleges that the Tribunal distorted the facts by failing to recognise the effects of her health problems on her respect for deadlines for completing her tasks. She argues that those health problems prevented her from working overtime in order to process the clusters of incoming cases in Finnish. Moreover, during her sick leave and the time when she was working half-time, none of those cases allocated to her was transferred to her colleagues, as a result of the poor organisation of the service.

24      LD considers that, in those circumstances, as work was not allocated to her in a steady flow, and as she could not extend her working hours to adapt to those variations, she was unable to avoid missing deadlines. Thus, under the heading ‘the qualitative appraisal and timeliness’ (paragraphs 67 to 78 of the judgment under appeal), the Tribunal failed to recognise those facts.

25      LD alleges that the Tribunal refers, in paragraphs 47, 48 and 65 of the judgment under appeal, to the effects of her state of health on her work only as regards the quantitative objectives assigned to her in the Development Plan, and not as regards meeting deadlines.

26      In addition, in paragraph 74 of the judgment under appeal, the Tribunal referred to the revision downwards of quantitative objectives, but did not acknowledge any of the facts raised by LD to explain why deadlines were not met.

27      Similarly, paragraph 77 of the judgment under appeal merely refers to paragraph 48 of that judgment, regarding the account taken of the effects of the health problems at issue on the Development Plan, whereas that plan did not concern the question of meeting deadlines.

28      EUIPO contests LD’s arguments.

29      First, it must be observed that LD’s arguments are based, essentially, on the premiss that, because of her health problems, she was not in a position to work overtime. That situation was problematic because a high number of applications were allocated to her some weeks owing, first, to the variation in the flow of incoming applications in Finnish which could not be distributed amongst several administrators and, second, to the poor organisation of the service.

30      On the basis of that premiss, on the pretext of pleading a distortion of the facts, LD disputes the findings of fact made by the Tribunal in paragraph 76 of the judgment under appeal, to the effect that she had not established that her delay in dealing with applications was largely due to the allocation, at the same time, of a large number of cases in Finnish and to the poor organisation of the service (see paragraph 40 below).

31      It is true that, in paragraph 76 of the judgment under appeal, the Tribunal does not expressly examine the argument that, in order to deal in a timely manner with the high number of cases allocated to LD at certain times, it would have been necessary to work overtime. However, that argument is rejected implicitly, but comprehensibly, in that paragraph, on the ground that LD did not provide any evidence to establish that her delay in handling applications was largely due to the allocation, at the same time, of a large number of cases in Finnish, which she alone in the service was able to deal with.

32      LD seeks a fresh assessment of the facts, which, according to the case-law cited in paragraph 21 above, the General Court has no jurisdiction to undertake.

33      Second, LD correctly points out that, in the part of the judgment under appeal headed ‘[t]he quantitative appraisal and the number of decision points obtained’, the Tribunal referred, in paragraphs 47, 48 and 65 of that judgment, to the account taken of her health problems in connection with the quantitative objectives assigned to her in the Development Plan. However, it is apparent inter alia from paragraph 77 of that judgment that the Tribunal also took account of her health problems in the part of the judgment headed ‘[t]he qualitative appraisal and timeliness’.

34      LD cannot, therefore, maintain that the Tribunal failed to take account of her state of health in the context of the review of the assessment made by the reporting officer of her failure to meet deadlines in 36% of her cases.

35      Moreover, it is apparent from paragraph 74 of the judgment under appeal that the Tribunal indeed established a link between the revision downwards of the quantitative objectives assigned to LD in the Development Plan, to take account of her state of health, and the expectation that she would meet the deadlines because those objectives had been revised downwards.

36      In the light of the indications given in paragraph 74 of the judgment under appeal, it follows implicitly but comprehensibly from paragraph 77 of that judgment that the Tribunal took the view that, since EUIPO revised downwards the quantitative objectives assigned to LD in the Development Plan in order to take account of her state of health, the maintenance of the requirements as regards meeting deadlines and, therefore, the account taken by the reporting officer of the failure to meet those deadlines were not vitiated by a manifest error of assessment.

37      Accordingly, since LD raised nothing capable of establishing distortion of evidence by the Tribunal, the first part of the ground of appeal is inadmissible in that it seeks to contest an assessment of the facts by the Tribunal.

38      In any event, in so far as LD relies on an insufficient statement of grounds for the judgment under appeal in that regard, it must be observed that the obligation incumbent on the Tribunal to state grounds for its decisions does not require it to respond in detail to all the arguments relied on by the parties, particularly where they are not sufficiently clear and precise and are not supported by detailed evidence (see, to that effect, judgment of 2 March 2010, Doktor v Council, T‑248/08 P, EU:T:2010:57, paragraph 64 and case-law cited). It follows that the Tribunal stated grounds to the requisite legal standard for rejecting LD’s argument concerning the effect of her state of health on respect for deadlines.

39      The first part of the first ground of appeal must therefore be rejected.

 The second part alleging distortion of facts as regards the LD’s inability to meet deadlines because she was the only examiner working in Finnish for part of the appraisal period and one of only two Finnish examiners for the remainder of the appraisal period

40      First, LD submits that, as regards the organisation of the service, the Tribunal distorted the facts in claiming, in paragraph 76, that the appellant did not provide any evidence to establish that her delay in handling applications was largely due to the allocation, at the same time, of a large number of cases in Finnish.

41      In that regard, LD argues that she was the only examiner in her department dealing with applications for trade mark registrations in Finnish from October 2011 to March 2012 and that only two examiners were dealing with such applications for the remainder of the appraisal period at issue. She adds that she also dealt with applications in English.

42      LD explains that, despite the variation in her workload, she remained subject to the same strict deadlines for dealing with applications, without having the option which the other examiners had of reallocating files to colleagues in the event of significant delay.

43      Second, LD alleges that, when a high number of applications in Finnish had been allocated to her because she was the only Finnish mother-tongue examiner, that delayed the examination of the applications in English subsequently allocated to her. Although the task inbox showed that, for a number of them, the deadline had expired, her superiors continued to allocate new applications in Finnish or English to her.

44      EUIPO contests LD’s arguments.

45      First, it must be observed that LD’s argument is based on the allegation that there were marked variations in the number of cases allocated to her each week. However, LD does not give any specific substantiated indication of the extent of the variation in her workload according to the flow of incoming cases in Finnish. In particular, at first instance, she failed to give any details whatsoever of the excessive number of new applications which were allocated to her at the same time, in some weeks, compared with the number of applications usually allocated to other examiners in the service.

46      Thus, LD does not identify, in the appeal, the evidence which is alleged to have been distorted in paragraph 76 of the judgment under appeal which was such as to demonstrate clearly, in accordance with the case-law cited in paragraphs 21 and 22 above, that her delay in dealing with applications was due in large part to the allocation, at the same time, of a high number of cases in Finnish, which she alone in the service was able to deal with.

47      Second, it is clear that, on the pretext of pleading a distortion of the facts, LD seeks to dispute the appraisal of the facts by the Tribunal in paragraph 76 of the judgment under appeal.

48      The appraisal of the facts does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the General Court on appeal (see judgment of 8 October 2014, Bermejo Garde v EESC, T‑530/12 P, EU:T:2014:860, paragraph 84).

49      It follows that the second part of the first ground of appeal must be declared inadmissible.

 The third part alleging distortion of the facts concerning the high number of cases dealt with by LD and the extra time necessary for that purpose

50      LD submits that the Tribunal distorted the facts by stating, in paragraph 52 of the judgment under appeal, that there were no ‘elements capable of establishing that the difficulty of the cases that the applicant had to handle during the reference period was manifestly uncommon’.

51      LD alleges that she had demonstrated that she had dealt with eight complex cases. However, EUIPO stated before the Tribunal that she had dealt with only two complex files.

52      EUIPO contests LD’s arguments.

53      In that regard, it must be held that, on the pretext of pleading a distortion of the facts, LD disputes the appraisal of the facts by the Tribunal as regards the question whether or not the number of cases which she had to deal with was excessive. As is clear from the case-law cited in paragraphs 21 and 48 above, such findings of fact are not subject to review by the General Court on appeal.

54      In paragraph 52 of the judgment under appeal, the Tribunal, when it considered LD’s argument concerning the level of difficulty of the tasks entrusted to her, neither ignored, nor distorted the evidence she had adduced in support of the allegation that, during the appraisal period at issue, she had had to deal with eight of the most complex cases within the department. Without ruling on the truth of that allegation and, therefore, without calling it into question, the Tribunal held that, even assuming that LD had dealt with eight of the most complex applications, it was not apparent from the case-file that such a figure was manifestly greater than the number of difficult cases that an examiner of her level is, in principle, able to deal with in the course of an annual appraisal period. Accordingly, by disputing that assessment of the facts without adducing any evidence capable of establishing a distortion of the facts by the Tribunal, LD is, in fact, seeking a reassessment of the facts by the General Court.

55      It follows that the third part of the first ground of appeal must be declared inadmissible.

 The fourth part alleging distortion of facts concerning the negative impact that the implementation of the IP Translator judgment had on the quantitative output of LD and her respect for deadlines

56      LD submits that the Tribunal distorted the facts as regards the impact of the implementation of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361) on her performance, which was affected by the fact that it was impossible to conclude a certain number of files in 2012 because of the difficulties the EUIPO had in implementing that judgment. She states that she was deprived of compensation in the form of additional decision points granted for tasks linked to the new procedures adopted following that judgment, which was the main cause of her failure to meet the objectives assigned to her in the Development Plan.

57      In that connection, LD relies on a series of arguments regarding, (i) the fact that it was impossible for her to finish a number of cases in 2012 (see paragraphs 58 to 61 below); (ii) the content of a statistical table concerning respect for deadlines (see paragraphs 62 and 64 below);(iii) the matters taken into account in the context of the comparison of her performance with that of other examiners (see paragraphs 65 to 69 below), and (iv) the effect of the lack of a filtering tool (see paragraphs 70 to 82 below).

–       The argument concerning distortion of the facts as regards the fact that it was impossible to finish a number of cases in 2012

58      LD alleges that the Tribunal distorted the facts she relied on, by stating, in paragraph 59 of the judgment under appeal, that she had not demonstrated ‘that such compensation was manifestly an underestimation or that she could benefit from it only for cases handled in 2013, as she was unable to finish any case affected by the consequences of the IP Translator judgment in respect of the contested appraisal period’. She considers that it was illogical to require her to demonstrate that she had not been able to finish any of those cases, when she had identified precisely a number of cases which she had been prevented from finishing in 2012 for the reasons mentioned in paragraph 56 above.

59      It is apparent from paragraph 58 of the judgment under appeal that the examiners were not trained in the new methods established within EUIPO following the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361) until October 2012, which did not allow LD to have optimal working conditions to deal effectively with the applications she was responsible for. In paragraph 59 of the judgment under appeal, the Tribunal states that such consequences only related to the second half of 2012 and that EUIPO ‘granted a number of additional decision points for the tasks related to the adaptation to the new procedures following the [judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361)]’, without LD demonstrating that ‘such compensation was manifestly an underestimation’.

60      It must be found, first, that LD does not identify any evidence which she put before the Tribunal which would show clearly that, in 2012, she did not receive any additional decision point in compensation for difficulties resulting from the implementation of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361).

61      It must be observed, next, that LD has not adduced any evidence capable of establishing that the Tribunal’s statement, in paragraph 59 of the judgment under appeal — that she had not demonstrated ‘that she could … benefit from [such compensation] only for cases handled in 2013, as she was unable to finish any case affected by the consequences of [the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361)], in respect of the contested appraisal period’ — was based on a distortion of the facts.

–       The argument concerning distortion of a statistical table relating to respect for deadline

62      LD maintains that the Tribunal distorted the facts in finding, in paragraph 60 of the judgment under appeal that ‘[a]ll of the examiners … achieved a better performance than [hers], particularly with regard to timeliness, even though [her objectives] were 20% less than the objectives usually set for an examiner in a comparable situation’. That statement, based on a statistical table showing respect for deadlines by the various examiners in the service in 2012 as regards decisions on absolute grounds for refusal, however, implies, she alleges, that the other examiners in the service achieved a better performance than hers, including in relation to quantity and quality, which EUIPO never maintained.

63      EUIPO contests LD’s arguments.

64      LD’s argument must be rejected in so far as it is based on an erroneous reading of the judgment under appeal. Contrary to LD’s interpretation, paragraph 60 of that judgment, which refers to the statistical table concerning respect for deadlines by the various examiners in the service in 2012 as regards decisions concerning absolute grounds for refusal, does not relate to the quality of the decisions she made. In that paragraph, the Tribunal examined only the impact of the difficulties arising from the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361) on her performance. It is in that context that it pointed out that the other examiners in the service achieved a better performance than LD, particularly with regard to meeting deadlines. The appellant does not dispute that she did not meet the quantitative objectives assigned to her in the Development Plan. Moreover, nor does she dispute that the percentage of decisions which she submitted late in 2012 was higher than that of the other examiners in the service tasked with examining applications as regards absolute grounds for refusal. In that connection, the Tribunal considered in particular whether the fact that LD was working in a less widely used language, like Finnish, had an impact on her delays. It was, moreover, for the purposes of that examination that it relied on the statistical table mentioned above.

–       The argument concerning distortion of the facts in the context of the comparison of LD’s performance with that of the other examiners

65      LD complains that the Tribunal distorted the facts, in paragraph 60 of the judgment under appeal, by comparing her performance with that of the other examiners in the service, during the appraisal period, in order to assess the impact of the difficulties over implementation of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361) on the assessment of her performance.

66      First, LD submits that the Development Plan is the starting point for the assessment of her performance. The fact that, when the parties concluded that plan, no one could have predicted the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), and the difficulties over its implementation, should have been acknowledged.

67      In that regard, it must be observed that when, in paragraph 60 of the judgment under appeal, the Tribunal, in its assessment of the impact of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), compared LD’s performance with that of the other examiners in the service, it made that comparative assessment expressly taking account of the fact that the objectives assigned to LD in the Development Plan ‘were 20% less than the objectives usually set for an examiner in a comparable situation’. Against that background, the fact relied on by LD that the impact of that judgment could not be foreseen when that plan was drawn up does not reveal any distortion of the facts, in that the Tribunal essentially considered that the work of LD was affected in much the same way as that of the other examiners by the consequences of that judgment. She has not demonstrated or alleged that the fact that it was impossible to foresee the difficulties resulting from the implementation of that judgment did not apply equally as regards the assignation of objectives to the other examiners in the service.

68      Second, LD alleges that, in any event, EUIPO did not provide the relevant information regarding the number of cases affected by the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), allocated to the examiners and regarding the time of such allocation, which would have allowed the contested comparison to be made. She concludes that, by confirming EUIPO’s position that ‘the examiners were all affected in much the same way by the consequences of [that judgment]’ the Tribunal distorted the facts as regards the negative consequences of that judgment on her work.

69      In that regard, suffice it to note that, on the pretext of pleading a distortion of the facts, LD seeks to dispute findings of fact made by the Tribunal. According to the case-law cited in paragraphs 21 and 48 above, such assessments are not subject to review by the General Court on appeal.

–       The argument concerning the distortion of the facts as regards the effect of the lack of a filtering tool

70      LD argues, essentially, that the Tribunal distorted the facts as regards the effect on her work of the lack of a filtering tool in Finnish. She states, first, that, in paragraph 61 of the judgment under appeal, the Tribunal misinterpreted her argument by considering whether she was placed at a disadvantage by the fact that the ‘instructions’ and training relating to the consequences of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), on the processing of applications, were available first in English before they were available in the other languages. She emphasises that she did not expect instructions and training in Finnish.

71      In that regard, it must be observed that, in the application at first instance, LD relied, first, on the fact that the filtering tools in the less widely used languages were not available until the end of the appraisal period and, then on ‘the delayed instructions [5 November 2012] and the training which the examiners only received on [24 October 2012]’. Accordingly, in stating, in the first sentence of paragraph 61 of the judgment under appeal that ‘the instructions for processing applications … submitted in less widely used languages, taking into account the [judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361)] were communicated to the members of staff after those available in other languages’, and that LD ‘was not able to access that training in Finnish until a later date’, the Tribunal misinterpreted LD’s arguments. However, that did not have the effect of vitiating the Tribunal’s reasoning in paragraphs 57 to 63 of the judgment under appeal, since the Tribunal verified whether, having regard to all the constraints resulting from the implementation of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), LD was — as she claimed — placed at a disadvantage compared with the other examiners working mainly in a less widely used language (see paragraphs 80 to 82 below).

72      Second, LD submits that the Tribunal distorted the facts, in paragraph 63 of the judgment under appeal, by concluding that she was unable to adapt effectively to new working methods on the basis of the fact that she was unable to process applications because of the lack of a filtering tool in Finnish.

73      In that regard, it must be held that, in paragraph 63 of the judgment under appeal, the Tribunal did not refer specifically at all to the difficulties caused by the lack of a filtering tool in Finnish before the end of the appraisal period at issue, but spoke much more generally of ‘new working methods’ resulting from the ‘instructions’ for the processing of cases affected by the consequences of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), which, according to the allegations of LD at first instance, were communicated late to staff and which are referred to in particular in paragraph 61 of the judgment under appeal.

74      Against that background, it is apparent from the argument of LD set out in paragraph 72 above that she essentially complains that the Tribunal disregarded her argument concerning the impact on her work of the lack of a filtering tool in Finnish, before the end of the appraisal period at issue.

75      A plea alleging that the court at first instance has refused to respond to a head of claim or a plea put forward before it is, in essence, tantamount to alleging an infringement by the Tribunal of the obligation to state adequate reasons, as provided for in Article 36 of the Statute of the Court of Justice, applicable to the Tribunal pursuant to Article 7(1) of Annex I to that Statute (judgment of 8 October 2014 in Bermejo Garde v EESC, T‑529/12 P, EU:T:2014:861, paragraph 43).

76      The obligation to state grounds does not require the Tribunal to provide an account which follows exhaustively and point by point all the arguments put forward by the parties to the case. The grounds stated may therefore be implicit, on condition that they enable the persons concerned to know the reasons for which a particular ruling was made and provide the competent court with sufficient material for it to exercise its power of review. However, although the obligation on the Tribunal to state grounds for its decisions cannot be interpreted as implying that it is required to respond in detail to every argument relied on by a party, particularly if that argument is not sufficiently clear and precise and is not based on detailed evidence, the General Court must, at the very least, examine all the infringements of rights relied on (see, to that effect, Komninou and Others v Commission, C‑167/06 P, not published, EU:C:2007:633, paragraph 22).

77      In the present case, it must therefore be ascertained whether the judgment under appeal states grounds to the requisite legal standard in the light of the arguments and evidence put forward by LD before the Tribunal.

78      In the judgment under appeal, the Tribunal did not refer expressly to the lack of a ‘filtering tool’ in the less widely used languages, such as Finnish, before the end of the appraisal period at issue and did not examine the impact of that circumstance on the processing, by LD, of EU trade mark applications in Finnish submitted from 21 June 2012 onwards.

79      However, it cannot be claimed that the Tribunal did not respond to certain arguments of LD in that regard. As was observed in paragraph 71 above, in order to demonstrate that the consequences of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), had not been duly taken into account in the 2011/2012 appraisal report, LD relied, inter alia, on the fact that instructions and training were given late, which considerably delayed examination of applications and prolonged the duration of that examination, particularly of pending applications lodged before 21 June 2012. The lack of a filtering tool in Finnish was raised only as regards applications lodged after that date for which the objection on absolute grounds was partial.

80      It is apparent from the judgment under appeal that the Tribunal took account overall of all the difficulties connected with the implementation of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), implicitly including amongst those difficulties the fact that the filtering tool in Finnish was not available until the end of the appraisal period. In paragraph 58 of the judgment under appeal, the Tribunal first expressly accepted that the implementation by EUIPO of new rules for examining cases following the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), resulted in a lengthening of the examination and procedural periods, which could have had the effect of slowing down the processing of cases. In particular, the Tribunal found that the ‘new procedures’ were only finalised and clarified at the end of 2012, that they could appear difficult to follow and that the examiners were not trained in the new methods until October 2012, which did not allow LD, from the middle of 2012, to have optimal working conditions to effectively deal with the applications she was responsible for.

81      Next, in the light of the case-file, the Tribunal essentially took the view, in paragraph 60 of the judgment under appeal, that LD did not adduce any evidence capable of establishing that her situation was manifestly different from that of her colleagues, in particular those working in a less widely used language and dealing with refusals on absolute grounds.

82      Finally, the first sentence of paragraph 61 of the judgment under appeal, which refers generally to ‘the instructions for processing applications … submitted in less widely used languages, taking into account the [judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361)],’ and in which it is observed that those instructions were communicated to members of staff after those available in other languages, confirms that the Tribunal made an overall examination of all the unfavourable consequences of that judgment on productivity and respect for time limits as regards the processing of cases in Finnish, which implied that account had been taken of the need for a filtering tool in that language for the processing of applications submitted as of 21 June 2012 and of the fact that that tool was not available until the end of the appraisal period at issue.

83      It follows that the Tribunal stated grounds to the requisite legal standard for rejecting LD’s argument concerning the impact of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), on the achievement of her objectives.

84      Moreover, it must be pointed out that, on the pretext of pleading a distortion of the facts relating to the lack of a filtering tool in Finnish before the end of the appraisal period at issue, LD also takes issue with certain findings made by the Tribunal in paragraphs 63, 78 and 85 of the judgment under appeal. By that argument, she seeks to challenge the findings of fact of the Tribunal concerning, essentially, the assessment by the reporting officer of the need for her to adapt more effectively to the new methods and the new working tools, both as regards the achievement of the quantitative objectives assigned to her in the Development Plan and meeting deadlines. According to the case-law cited in paragraph 48 above, the appraisal of the facts does not constitute a question of law which is subject, as such, to review by the General Court on appeal.

85      Therefore, the fourth part of the first ground of appeal must be rejected as inadmissible in part and unfounded in part.

 The fifth part, alleging distortion of the facts relating to the deadlines for processing cases by LD compared with those for other examiners

86      LD complains that the Tribunal compared the figures for meeting deadlines with the average for the directorate (7%) and for the department (11%), without establishing the figures for meeting deadlines of the other examiners working in less widely used languages. She alleges that, of the 67 examiners in the department responsible for refusals on absolute grounds, three other examiners had a rate of decisions taken after their time limit of 20%. However, she does not give any indication of the languages in which those three other examiners were working.

87      It must be observed that, in so far as, first, LD gives no indication of the working languages of those examiners and, second, she does not identify precisely the passages of the judgment under appeal which she criticises, the fifth part of the first ground of appeal must be declared inadmissible.

88      In any event, although the fifth part of the first ground of appeal must be understood as meaning that LD disputes the findings made in paragraphs 60 and 66 of the judgment under appeal to the effect that it is not apparent from the case-file that her situation was manifestly different from that of the other examiners, in particular as regards examiners working in less widely used languages, she confines herself to reiterating certain arguments already relied on in the context of the fourth part of that ground of appeal (see paragraphs 65 and 68 above) or relying on similar arguments, seeking to dispute findings of fact made by the Tribunal. Accordingly, this fifth part must also be rejected as inadmissible, in so far as, on the pretext of pleading a distortion of the facts, LD seeks a fresh assessment of the facts found by the Tribunal, which the General Court has no jurisdiction to carry out on appeal.

89      For all those reasons the first ground of appeal must be rejected as inadmissible in part and unfounded in part.

 The second ground of appeal alleging an error of law in the overall assessment of the LD’s performance

90      According to LD, the Tribunal made an error of law, in paragraphs 82 to 84 of the judgment under appeal, by holding, essentially, that the finding that, of the seven competencies assessed, five were consistent with the level required for the position held, did not reveal any error of assessment in the award of a level 6 for the overall assessment.

91      LD alleges that it is clear from paragraph 85 of the judgment under appeal that the findings of the reporting officer, concerning the two competencies which were assessed at a lower level than that required for the post held, were based solely on the quantitative output and respect for deadlines, that is to say, on efficiency. The other observations of the reporting officer on those two competencies were positive.

92      In the course of its examination, in paragraph 84 of the judgment under appeal, of the reporting officer’s weighing of the strengths and weaknesses of LD, the Tribunal did not refer only to meeting deadlines and achieving quantitative objectives assigned to her in the Development Plan, but also to ‘the organisation of her work’. For that last aspect she received a positive assessment.

93      In addition, in paragraph 84 of the judgment under appeal, the Tribunal stated that ‘it is apparent from the content of the [2011/2012] appraisal report that the reporting officer did take into account the positive aspects of [LD’s] work’. In paragraph 85 of that judgment, however, the Tribunal confined itself to listing those positive aspects. Neither EUIPO nor the Tribunal, however, explained how those positive aspects had been taken into consideration and weighed against the LD’s weaknesses for the purposes of her overall appraisal.

94      Under Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), the performance of an official is to be assessed in the light of three different criteria: ability, efficiency and conduct in the service. Accordingly, the identification of weaknesses with regard to only one of those criteria, namely, efficiency, cannot give rise to an overall appraisal of professional insufficiency unless the shortcomings found as regards efficiency are so extensive that they completely outweigh a positive assessment as regards the other two criteria. That, however, is not the case here.

95      EUIPO disputes the LD’s arguments.

96      The Tribunal correctly observed, in paragraph 41 of the judgment under appeal, that, according to case-law, when assessing an official or staff member under Article 43 of the Staff Regulations, assessors enjoy a very wide discretion when appraising the work of persons upon whom they must report. Accordingly, it is not the role of the Judge-Rapporteur to substitute his own assessment for that of the reporting officer but to assess whether the arguments put forward by LD are sufficient to render that assessment wholly implausible (order of 8 October 2015, Nieminen v Council, T‑464/14 P, EU:T:2015:787, paragraph 64).

97      The wide discretion allowed to reporting officers in their findings regarding the work of those they have the task of assessing is exercised inter alia in the context of the overall appraisal of the work of the person assessed, which necessarily requires a balancing of his qualities and shortcomings in the light of all the applicable criteria for assessment.

98      The review of the legality of the 2011/2012 appraisal report carried out by the Tribunal as regards the balancing by the reporting officer of the assessments of the various competencies assessed in that appraisal report should therefore be limited to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers.

99      It is apparent from the judgment under appeal that the Tribunal did exercise such a review as regards the balancing by the reporting officer of the assessments of the various competencies of LD examined in the 2011/2012 appraisal report. While LD’s efficiency is mentioned in paragraphs 82 and 85 of the judgment, paragraphs 82, 84 and 85 of the judgment also report on her competence and her conduct in the service.

100    LD therefore cannot argue that the Tribunal took account, in its review, only of her efficiency, in breach of Article 43 of the Staff Regulations.

101    The second ground of appeal must therefore be rejected.

 The third ground of appeal alleging an error of law as regards the rejection of the plea alleging breach of fiduciary duty

102    LD submits that the Tribunal made an error of law, in paragraph 96 of the judgment under appeal, in rejecting the plea alleging breach of fiduciary duty. She argues that that rejection is based on a distortion of the facts. She contends that the Tribunal acknowledged the negative impact of her health problems only as regards her productivity and not as regards respect for deadlines. The breach of fiduciary duty derives from the fact that, while EUIPO should have relieved the pressure caused by the deadlines to prevent her health from deteriorating, it gave her an overall assessment of level 6 on the basis of the figures relating to deadlines.

103    EUIPO disputes the LD’s arguments.

104    It suffices to note that the present ground of appeal is based essentially on a complaint of distortion of the facts relating to the account taken of the impact of LD’s health problems on her respect for deadlines, which was held inadmissible at paragraph 38 above.

105    The third ground of appeal must therefore be declared inadmissible.

 The fourth ground of appeal, alleging a distortion of the facts and of the LD’s argument as regards the rejection of the plea relating to breach of the principle of protection of legitimate expectations

106    LD submits that the rejection of the plea alleging breach of the principle of protection of legitimate expectations is based on a distortion of her argument and of the facts. She argues that, in paragraphs 93 to 95 of the judgment under appeal, the Tribunal proceeded on the assumption that she had expected to be awarded an overall assessment of level 4, whereas, in the application at first instance, she had indicated that she expected, (i) to be treated in accordance with the note of 30 January 2012 and, therefore, not to be awarded a level 6, provided that her productivity level was lower by less than 20% than the objectives assigned to her in the Development Plan, (ii) not to be assessed principally on the basis of figures relating to respect for deadlines and, (iii) that the negative impact of implementing the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361), would not affect her appraisal negatively.

107    EUIPO disputes the LD’s arguments.

108    First, contrary to what LD maintains, it is clear from the application at first instance (paragraph 113) that she argued before the Tribunal that ‘it is a severe breach of her legitimate expectations to be awarded a general assessment even two grades lower [than] envisaged [in the Development Plan].’

109    In those circumstances, LD cannot maintain that the Tribunal distorted her argument in paragraphs 93 to 95 of the judgment under appeal.

110    Second, according to case-law, the question whether the LD’s hierarchical superiors gave her any sufficiently precise and consistent assurances such as to lead to legitimate expectations on her part is an assessment of a factual nature and is not subject to review by the General Court on appeal (see, to that effect, judgment of 26 November 2015, Morgan v OHIM, T‑683/14 P, EU:T:2015:890, paragraph 87).

111    In paragraph 95 of the judgment under appeal, the Tribunal rejected the plea alleging breach of the principle of legitimate expectations, on the ground, essentially, that LD neither met the quantitative objectives assigned to her in the Development Plan, nor received an assessment corresponding to the level required for all the competencies assessed.

112    In that connection, LD does not rely on any evidence suggesting that paragraph 95 of the judgment under appeal is vitiated by a distortion of the facts, as regards the content of the note of 30 January 2012, the account taken of deadlines or the impact of the judgment of 19 June 2012, IP Translator (C‑307/10, EU:C:2012:361). As regards that note, in particular, the passage quoted by LD and included in the note of the reporting officer of 23 May 2013, annexed to the application at first instance (see paragraph 2 above), states only that ‘[a drop] by more than 20% [in productivity compared with the objectives assigned] would lead to considering the score of “improvement required”’, that is, if appropriate, an overall assessment of level 6. Such a passage, taken out of context, cannot imply that, conversely, the award of a level 6 can only be envisaged if at least 80% of quantitative objectives were met, regardless of the other competencies assessed. Moreover, LD does not adduce any evidence which would demonstrate clearly that she had been given an assurance that level 6 would be awarded to her only if her performance was lower by more than 20% compared with the quantitative objectives which had been assigned to her in the Development Plan, regardless of the level required for all the other competencies assessed.

113    Against that background, it must be held that, on the pretext of pleading a distortion of the facts, LD seeks to challenge the findings of fact made by the Tribunal.

114    It follows that the fourth ground of appeal must be rejected as in part unfounded and in part inadmissible. Therefore, the appeal must be dismissed as a whole without there being any need to examine the plea of inadmissibility raised by EUIPO.

 Costs

115    In accordance with Article 211(2) of the Rules of Procedure of the General Court, where the appeal is unfounded, the Court is to make a decision as to costs.

116    Under Article 134(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 211(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

117    Since LD has been unsuccessful in her claims in the appeal and EUIPO has applied for costs, LD must bear her own costs and pay those incurred by EUIPO in the present proceedings.

On those grounds,

THE GENERAL COURT (Appeal Chamber)

hereby:

1.      Dismisses the appeal.

2.      Declares that LD is to bear her own costs and orders her to pay those incurred by the European Union Intellectual Property office in the present proceedings.

Delivered in open court in Luxembourg on 9 February 2017.

Table of contents

Background to the dispute

Proceedings at first instance and the judgment under appeal

Procedure before the General Court and forms of order sought by the parties

The appeal

First ground of appeal: distortion of the facts

The first part, alleging distortion of the facts as regards the effects of LD’s health problems on her respect for deadlines for the completion of tasks

The second part alleging distortion of facts as regards the LD’s inability to meet deadlines because she was the only examiner working in Finnish for part of the appraisal period and one of only two Finnish examiners for the remainder of the appraisal period

The third part alleging distortion of the facts concerning the high number of cases dealt with by LD and the extra time necessary for that purpose

The fourth part alleging distortion of facts concerning the negative impact that the implementation of the IP Translator judgment had on the quantitative output of LD and her respect for deadlines

– The argument concerning distortion of the facts as regards the fact that it was impossible to finish a number of cases in 2012

– The argument concerning distortion of a statistical table relating to respect for deadline

– The argument concerning distortion of the facts in the context of the comparison of LD’s performance with that of the other examiners

– The argument concerning the distortion of the facts as regards the effect of the lack of a filtering tool

The fifth part, alleging distortion of the facts relating to the deadlines for processing cases by LD compared with those for other examiners

The second ground of appeal alleging an error of law in the overall assessment of the LD’s performance

The third ground of appeal alleging an error of law as regards the rejection of the plea alleging breach of fiduciary duty

The fourth ground of appeal, alleging a distortion of the facts and of the LD’s argument as regards the rejection of the plea relating to breach of the principle of protection of legitimate expectations

Costs

*      Language of the case: English.

1      Confidential data omitted

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