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

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

24 September 2019 (*)

(Civil service — ECB staff — Appraisal report of the applicant — Annual salary and bonus review — Refusal to convert a fixed-term employment contract into a contract for an indefinite period — Obligation to state reasons — Manifest error of assessment — Principle of sound administration)

In Case T‑39/18,

VF, represented by L. Levi and A. Blot, lawyers,

applicant,

v

European Central Bank (ECB), represented by F. von Lindeiner and D. Camilleri Podestà, acting as Agents, and by B. Wägenbaur, lawyer,

defendant,

ACTION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union essentially seeking, first, the annulment of the decision regarding the annual salary and bonus review for 2016 and the decision not to convert the applicant’s fixed-term employment contract into a contract for an indefinite period and, secondly, compensation for the damage which the applicant claims to have sustained as a result of those measures,

THE GENERAL COURT (Sixth Chamber),

composed of G. Berardis, President, D. Spielmann (Rapporteur) and Z. Csehi, Judges,

Registrar: E. Coulon,

gives the following

Judgment

 Legal framework

 Framework Agreement on fixed-term work

1        Article 1 of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) (‘the Framework Agreement’) states that the purpose of the directive is ‘to put into effect the [Framework Agreement] concluded … between the general cross-industry organisations (ETUC, UNICE and CEEP)’.

2        The second and third paragraphs in the preamble to the Framework Agreement are worded as follows:

‘The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.

This agreement sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations. It illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and for using fixed-term employment contracts on a basis acceptable to employers and workers.’

3        Paragraphs 6 to 8 of the general considerations of the Framework Agreement are worded as follows:

‘6.      Whereas employment contracts of an indefinite duration are the general form of employment relationships and contribute to the quality of life of the workers concerned and improve performance;

7.      Whereas the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse;

8.      Whereas fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers.’

4        Clause 5 of the Framework Agreement states:

‘1.      To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:

(a)      objective reasons justifying the renewal of such contracts or relationships;

…’

 Relevant provisions relating to the ECB

 General provisions

5        Article 36 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank (ECB), annexed to the EC Treaty (‘the ESCB Statute’), in the version in force at the material time, contains the following provisions:

‘Staff

36.1.      The Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the ECB.

36.2.      The Court of Justice [of the European Union] shall have jurisdiction in any dispute between the ECB and its servants within the limits and under the conditions laid down in the conditions of employment.’

6        On the basis of Article 36.1 of the ESCB Statute, the Governing Council of the ECB adopted, by decision of 9 June 1998, amended on 31 March 1999 (OJ 1999 L 125, p. 32), the Conditions of Employment for Staff of the ECB (‘the Conditions of Employment’).

7        Article 9(c) of the Conditions of Employment provides:

‘No specific national law governs these Conditions of Employment. The ECB shall apply (i) the general principles of law common to the Member States, (ii) the general principles of European Community (EC) law, and (iii) the rules contained in the EC regulations and directives concerning social policy which are addressed to Member States. Whenever necessary, these legal instruments will be implemented by the ECB.’

8        Article 10(c) of the Conditions of Employment provides:

‘Employment contracts for a definite period of more than one year, issued against a permanent and vacant post, may be converted into employment contracts for an indefinite period in accordance with the conditions laid down in the Staff Rules.’

9        Moreover, on the basis of Article 12.3 of the ESCB Statute, the Governing Council adopted the Rules of Procedure of the ECB (OJ 2004 L 80, p. 33). In the version resulting from the decision of 19 February 2004, it provided, inter alia:

‘11.2.      Without prejudice to Articles 36 and 47 of the Statute, the Executive Board shall enact organisational rules (hereinafter referred to as Administrative Circulars) which are binding on the staff of the ECB.

…

21.1.      The Conditions of Employment and the Staff Rules shall determine the employment relationship between the ECB and its staff.

21.2.      The Governing Council, upon a proposal from the Executive Board and following consultation of the General Council, shall adopt the Conditions of Employment.

21.3.      The Executive Board shall adopt the Staff Rules, that shall implement the Conditions of Employment.

21.4.      The Staff Committee shall be consulted before the adoption of new Conditions of Employment or Staff Rules. Its opinion shall be submitted to the Governing Council or the Executive Board respectively.’

10      Article 2.0 of the ECB Staff Rules (‘the Staff Rules’) provides as follows:

‘The following members of staff shall be eligible to an employment contract for an indefinite period (hereinafter the ‘convertible contracts’):

(a)      members of staff assigned to a permanent and vacant post below the I band and engaged for a fixed period of three years; and

(b)      members of staff assigned to a permanent and vacant post at the I band and above and engaged for a fixed period of five years.

Subject to the interest of the service, such contracts (hereinafter ‘convertible contracts) may be converted in case of at least overall satisfactory performance of the member of staff over the period of the convertible contract. At least six months prior to the expiry of a convertible contract the decision whether or not to convert the contract shall be taken by:

(a)      the Director-General Human Resources or their Deputy, after having consulted the Director-General or Director of the business area in which the member of staff assigned to a post below the I band is employed; or

(b)      the Chief Services Officer, on behalf of the Executive Board, for members of staff assigned to a post at the I band or above.’

 Annual appraisal report

11      The performance of the staff of the ECB is assessed annually in two separate procedures: the appraisal and the annual salary and bonus review (‘the ASBR’).

12      The annual appraisal is designed as a tool both for staff management and for the personal development of ECB staff members and takes the form of a discussion between the member of staff and his or her line manager concerning the achievements made in the preceding period in the light of the objectives set for that period and what is expected for the period to come. Each year, that appraisal leads to the production of an appraisal report.

13      The ECB Appraisal Guide states, more specifically, that:

‘The focus of the appraisal is the individual’s achievements relative to the tasks and objectives set for the year. It concerns the specific work of the staff member during the year and is not a relative exercise even though individual performance may be assessed in the context of the expected performance in a function at a certain level. The appraisal should reflect both technical and behavioural performance and results, or lack hereof, and reflect both achievements and areas for improvement. If an appraiser considers the performance of an appraisee to be unsatisfactory, he or she should explain why and identify ways to improvement, in consultation with the appraisee.

It is most important for both parties to come to the appraisal discussion well prepared. Appraisers should reserve sufficient time for the appraisal interviews and ensure that appraisees are informed of the date at least one week in advance. Appraisal discussions should, in principle, take place on a one-to-one basis between the first appraiser and the appraise.’

 The ASBR

14      For the reference period from 1 September 2015 to 31 August 2016, the ASBR and the link between it and the appraisal are explained in a document entitled ‘The Annual Salary and Bonus Review’ (‘the ASBR guidelines’).

15      The ASBR guidelines state, inter alia, as follows:

–        concerning the objectives of the ASBR: ‘the ECB’s reward policy has been created with the objective of rewarding an individual’s performance and achievements by linking their salary level to their contribution to the success of the ECB in achieving its objectives’;

–        concerning salary increases: ‘salary increases are used to recognise a staff member’s personal development and added contribution over the past year … The decisions on individual salary increases should be based on the above mentioned principles and properly explained’;

–        concerning the level of awards and the spread over the salary bands: ‘salary awards are from 0 up to 14 steps. Every point equals a salary raise of approximately 0.25%. A minimum of 9 steps will be awarded to 20% (+/‑ 5%) of staff. Staff members whose performance is unsatisfactory shall be awarded 0 salary steps. A salary award of 0 steps may also be awarded to staff members who performed satisfactorily, but did not develop and/or make an additional contribution to the organisation compared to the previous performance period relative to his or her level in the salary band and to peer-level performance;

–        concerning the indirect link between the ASBR and the appraisal: ‘the ASBR and the appraisal are two separate exercises with different objectives. As a result, there is no mechanistic link between them, nor a requirement that the appraisal [be] completed before the ASBR is undertaken. Nevertheless, conducting the individual appraisals in advance of ASBR decisions being made is in line with best practice and is the preferred approach. The Appraisal exercise is directed at recognising areas of achievement and identifying areas of performance upon which the individual in his or her specific situation can improve, irrespective of how the staff member has performed relative to other staff members. The appraisal has thus the character of a “normative” exercise. It refers solely to the achievements of the individual against the individual objectives within the specific individual context, and does not carry a comparative notion. The ASBR on the other hand, must, in view of the budgetary constraints and bearing in mind the principle of reward based on merit, consider an individual’s contribution relative to others within the same business area, taking into account the level of contribution that can be expected in view of the individual’s position in the salary band. Consequently, a “good” appraisal of a staff member whose salary is high in the relevant band should generally result in a lower salary award than an equally “good” appraisal for a staff member in the lower part of the same salary band. The ASBR has thus the character of a “comparative” exercise. … The ASBR is therefore a separate assessment independent from the appraisal. As a result, a direct read across from one exercise to the other is not possible. Although there is no direct link, the overall messages from the appraisal and the ASBR should be consistent’;

–        concerning the manner in which the administration informs the staff members concerned of the increases awarded: ‘Individual letters are prepared by DG-H, for handing out to staff members by local management. At that occasion, line managers should explain the background of their salary/bonus awards, based on their relative contribution.’

  Background to the dispute

16      The applicant, VF, was employed by the ECB under a fixed-term convertible contract for a period of 3 years, from 15 September 2014 to 14 September 2017, as a senior supervisor within the Directorate-General ‘Micro-Prudential Supervision III’.

17      The applicant was awarded one step in the ASBR for the 2015 performance cycle.

 Facts relating to the applicant’s appraisal and ASBR for 2016

18      On 15 December 2016, the applicant was informed that, following the ASBR for 2016, he had been awarded a salary increase of one step. The appraisal report for 2016 was also communicated to him.  

19      On 10 February 2017, the applicant submitted, under Article 8.1.2 of the Staff Rules, an application for administrative review of the decision of 15 December 2016, which awarded him a salary increase of one step, and of his appraisal report for 2016.

20      By letter of 6 April 2017, the Deputy Director-General of the Directorate-General for Human Resources (‘DG HR’) informed the applicant that his application for administrative review had been partially accepted and that it was appropriate to review his appraisal report given that it contained inaccurate information concerning a task he had been given. The applicant was also informed that a new ASBR decision would be made at the end of his appraisal exercise. The other claims in his application for administrative review were rejected.

21      On 24 May 2017, the applicant submitted a grievance within the meaning of Article 8.1.4 and 8.1.5 of the Staff Rules against the decision of 6 April 2017.

22      On 24 May 2017, following the decision of 6 April 2017, the Deputy Director-General of DG HR informed the applicant that the revised ASBR decision for the year 2016 awarded him a salary increase of one step (‘the 2016 ASBR decision’). The revised appraisal report for 2016 (‘the 2016 appraisal report’) was annexed to that decision.

23      By letter of 28 July 2017, the President of the ECB informed the applicant that his grievance of 24 May 2017 had been rejected.

24      By letter of 12 July 2017, the applicant submitted an application for administrative review of the 2016 appraisal report and the 2016 ASBR decision.

25      By letter of 13 September 2017, the Deputy Director-General of DG HR informed the applicant that his application for administrative review of the 2016 appraisal report and the 2016 ASBR decision had been rejected.

26      On 9 October 2017 the applicant submitted a grievance against the decision of 13 September 2017.

27      On 21 December 2017, the applicant was given notification of the decision of the President of the ECB of 20 December 2017, which rejected the grievance.

 Facts relating to the non-conversion of the applicant’s contract

28      On 6 March 2017, the applicant was informed of the decision of the Deputy Director-General of DG HR not to convert his fixed-term employment contract into a contract for an indefinite period in accordance with Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules (‘the non-conversion decision of 2017’). As a result of that decision, the applicant’s employment contract terminated on 14 September 2017.

29      On 5 May 2017, the applicant lodged an application for administrative review of the decision of 6 March 2017.

30      By decision of 4 July 2017, the Director-General of DG HR rejected the application for administrative review.

31      On 1 September 2017, the applicant submitted a grievance against the decision of 4 July 2017.

32      By decision of 15 November 2017, the President of the ECB rejected that grievance. That decision was communicated to the applicant on 21 November 2017.

 Procedure and forms of order sought

33      By application lodged at the General Court Registry on 25 January 2018, the applicant brought the present action.

34      By letter of 15 February 2018, the applicant requested anonymity, which was granted to him.

35      On 30 April 2018 the ECB lodged its defence.

36      On 5 July and 19 September 2018, the reply and the rejoinder, respectively, were lodged at the Court Registry.

37      The Court (Sixth Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.

38      The applicant claims that the Court should:

–        annul the 2016 ASBR decision and the non-conversion decision of 2017;

–        annul the ECB decision of 13 September 2017 rejecting his application for administrative review of his revised appraisal and ASBR for 2016;

–        annul the ECB decision of 20 December 2017, which was notified to the applicant on 21 December 2017, rejecting his grievance procedure against his revised appraisal and ASBR for 2016;

–        annul the ECB decision of 4 July 2017 rejecting his application for administrative review of the non-conversion decision of 2017;

–        annul the decision of the ECB of 15 November 2017, which was notified to the applicant on 21 November 2017, rejecting his grievance procedure against the decision not to convert his contract;

–        order the ECB to pay compensation for the damage suffered;

–        order the ECB to pay the costs.

39      The ECB contends that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

 Law

 Subject matter of the action 

40      The applicant claims that the action is admissible, since the contested acts adversely affect him and he has an interest in bringing proceedings. He also notes that the decisions adopted by the ECB following the internal administrative appeals refer to new evidence and, therefore, they also constitute acts that may be challenged.

41      It should be noted that a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 37).

42      In the present case, given that the decisions rejecting the applicant’s requests for administrative review and his grievances simply confirm the 2016 ASBR decision, the non-conversion decision of 2017 and the 2016 appraisal report, the Court finds that the heads of claim seeking annulment of the decisions rejecting the applicant’s requests for administrative review and the decisions regarding the applicant’s grievances lack any independent content and there is therefore no need to rule on them specifically, even though, when assessing the legality of the contested acts, namely the 2016 ASBR, the 2016 appraisal report, which is annexed thereto, and the non-conversion decision of 2017, it will be necessary to take into consideration the reasons given in those decisions, since those reasons are also deemed to cover the contested acts (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited).

 The heads of claim seeking annulment 

 Preliminary observations

43      It should be noted at the outset that, in his application, the applicant identifies the 2016 ASBR decision and the 2016 appraisal report annexed thereto as ‘the first contested decisions’ and the non-conversion decision of 2017 as ‘the fourth contested decision’. He goes on to present his grounds for annulment in three parts, relating, first, to the non-conversion decision of 2017, secondly, to the 2016 appraisal report and, lastly, to the 2016 ASBR decision. Since the grounds for annulment relating to the 2016 appraisal report may be examined separately, given that that report is a separate document, annexed to the 2016 ASBR decision, the heads of claim seeking annulment will be examined in the order in which they are presented in the application.

 The non-conversion decision of 2017

–       The first plea in law, alleging infringement, by the conversion policy, of Article 10(c) of the Conditions of Employment and of Article 2.0 of the Staff Rules

44      The applicant raises a plea of illegality in respect of the document entitled ‘Criteria and procedure for the conversion of fixed-term contracts of staff members recruited for permanent positions’, adopted by the ECB (‘the conversion policy’), claiming that it is contrary to Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules.

45      In particular, he claims that, in the present case, the ECB has restricted, by means of an internal decision, the effects of the Conditions of Employment. In that regard, he submits that the conversion policy was not adopted by the ECB Executive Board and, consequently, that there was, in the present case, an infringement of higher-ranking rules, namely Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules. The applicant adds that, even though the conversion policy was adopted by the Executive Board on 27 November 2007, it must be regarded as an administrative circular within the meaning of Article 11(2) of the ECB Rules of Procedure. In the applicant’s view, administrative circulars are organisational rules which, by nature, cannot infringe the Conditions of Employment.

46      The ECB disputes the arguments put forward by the applicant.

47      Without there being any need to rule on whether Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules constitute rules that are higher ranking than or equal to the rules relating to the ECB’s conversion policy, the Court finds that the applicant has not succeeded in establishing that the latter are in conflict with the former since the arguments he puts forward in that regard are unfounded.

48      In that respect, in the first place, the applicant states that, although Article 2.0 of the Staff Rules makes conversion of a contract subject to two conditions, namely the interest of the service and the overall satisfactory performance of the staff member concerned, the conversion policy goes further by imposing additional conditions, which are stricter.

49      The applicant claims in that respect that, according to the conversion policy, the first condition that is intended to relate to individual performance is the ‘continued development of the member of staff’. That condition involves an element of speculation, whereas Article 2.0 of the Staff Rules makes reference only to the performance of the member of staff ‘over the period of the convertible contract’.

50      Those arguments must be rejected.

51      It is clear from the very wording of point 3.2.1 of the conversion policy, which is indeed headed ‘continued development of the staff member’, that that concept is defined as ‘developing a set of knowledge, skills and competencies over the assessment period which matches the expectations outlined by the appraisal forms (e.g. objectives and their respective achievement) and demonstrating the potential for further career development and future mobility in view of the position held’. It follows that there is a clear link between the performance of a staff member and his potential. The potential for career development of a member of staff can be assessed only on the basis of his performance and the skills he has shown in the past, which, as objective criteria, are not a source of uncertainty, contrary to the claims of the applicant. Moreover, while it is true that the reference to the ‘continued development’ of the staff member concerned requires an extrapolation for the future regarding that staff member’s potential, that is reasonable in connection with the conversion of a fixed-term employment contract into a contract for an indefinite duration and is consistent with Article 2.0 of the Staff Rules, which refers to at least overall satisfactory performance of the member of staff over the period of the convertible contract.

52      In the second place, the applicant claims that, the second condition of the conversion policy is to have received salary awards of on average ‘at least three salary steps per ASBR exercise during the overall assessment period’. He submits that that condition is at odds with Article 2.0 of the Staff Rules, which lays down a more general condition, namely ‘at least overall satisfactory performance of the member of staff’. In particular, he notes, with reference to the decision of 15 November 2017, that, according to the ASBR procedure, a salary award of 0 steps may be granted not only to staff members whose performance was unsatisfactory, but also to those who performed satisfactorily but ‘did not develop and/or make additional contribution to the organisation compared to the previous performance period relative to his or her level in the salary band and to peer-level performance’. The applicant submits that there is a contradiction in relation to that point, as the salary award of one step he was granted in the ASBR exercise for 2016 means that his performance was satisfactory in the context of the ASBR, but unsatisfactory as regards the possibility of converting his contract into a contract for an indefinite duration.

53      Those arguments must be rejected.

54      In that regard, it should be noted that the condition requiring salary awards of on average at least three steps per ASBR exercise provides, by introducing an objective criterion, further specifications regarding the condition laid down in Article 2.0 of the Staff Rules, that is to say, the obligation on the member of staff to provide ‘at least overall satisfactory performance’. In that regard, contrary to what the applicant claims, the use of the expression ‘satisfactory performance’, both in the ASBR guidelines and in the conversion policy, does not pose a contradiction.

55      As is stated in the ASBR guidelines, the ASBR exercise reviews, on an annual basis, the performance of ECB staff members employed under fixed-term or indefinite contracts. Its aim is to reward the performance and achievements of employees by linking their salary level to their contribution to the success of the ECB in achieving its objectives. Moreover, the ASBR guidelines state that ‘in view of the hard budget constraint underlying the ASBR, this increasing personal development and this increasing contribution must be regarded relative to others in the same salary band’.

56      It follows that the objective of the ASBR is to assess the performance of employees over a period of 1 year, with a view to increasing their salaries. In addition, it is a comparative exercise, given that it is based on the contribution of the staff member concerned in comparison with that of his colleagues ‘in the same salary band’.

57      By contrast, as the ECB has rightly noted, in the context of the conversion policy, as the assessment of the performance of the staff member concerned applies to the entire term of his fixed-term contract, it pursues a different objective, namely the conversion or otherwise of that contract into a contract for an indefinite period. Consequently, and in view of the importance for the organisation of the ECB’s departments of its decision regarding the conversion of a contract, it is reasonable that the threshold for the number of steps awarded is higher in the case of a decision to convert a contract than in the case of an ASBR decision.

58      In other words, and in the light of the foregoing, while it is true that the implementation of the ASBR guidelines and of the conversion policy involve assessing the performance of ECB employees, the fact remains that the two texts pursue different objectives, which may justify a divergence in the manner of assessing whether the performance of the staff member concerned is sufficient.

59      It is necessary to reject as unfounded the applicant’s argument that the steps awarded in the ASBR should not be taken into account in connection with the conversion of contracts, given that the performance of the staff member concerned is examined only in comparison with the contribution of his or her colleagues. While it is true that the ASBR is a comparative exercise which links the salary of the employee concerned with the performance of other employees, the fact remains that it is a tool for assessing whether the performance of the staff member concerned is sufficient, as provided for in Article 2.0 of the Staff Rules. Thus, the ASBR guidelines provide that the ECB’s reward policy has been created with the objective of ‘rewarding an individual’s performance and achievements by linking their salary level to their contribution to the success of the ECB in achieving its objectives’ and that salary increases ‘are used to recognise a staff member’s personal development and added contribution over the past year’.

60      In the third place, the applicant claims that the criterion relating to the number of steps awarded in each ASBR exercise is a source of arbitrariness. He submits that that criterion affords the administration the possibility of awarding only one step in the first ASBR exercise and to subsequently adapt the number of steps awarded in the second ASBR depending on whether or not the administration wishes to convert the contract.

61      That argument must be rejected since it is speculative.

62      Apart from the fact that the applicant did not challenge the ASBR decision regarding the 2015 performance cycle, thus implicitly accepting that he needed five steps in the 2016 ASBR in order to achieve the overall average required of at least three salary steps over the 2 years, he has not adduced any evidence to establish that the number of steps awarded to a staff member depends on whether or not the administration wishes to convert that staff member’s contract. In that regard, it is apparent from point 2.1.1 of the ASBR guidelines that during an ASBR exercise cycle an employee may be awarded between 0 and 14 steps and that a minimum of 9 steps will be awarded to 20% (+/- 5%) of staff. It follows that requiring an average of at least three steps over the entire appraisal period does not constitute an excessive requirement for an employee who wishes to have his contract converted into a contract for an indefinite period.

63      Moreover, in so far as the applicant implies that, after he was awarded one step in the ASBR, his head of division confirmed that there was a possibility for that to be compensated for in the next assessment cycle, that claim is not supported by any evidence in the documents before the Court.

64      In the fourth place, the applicant submits that, due to the annual nature of the ASBR exercise and the obligation to inform the staff member at least 6 months prior to the expiry of his contract, staff members have in fact been assessed only twice under the ASBR procedure when the decision on the conversion of the contract is taken. He claims that that infringes Article 2.0 of the Staff Rules, which provides that the performance observed over the assessment period should be used as a basis for the decision and that the assessment period is not 24 months but 36 months.

65      In that regard, it must be observed that, while it is true that Article 2.0 of the Staff Rules refers to a 36-month assessment period for the purposes of deciding whether or not to convert the contract concerned, that provision also states that the decision regarding conversion must be taken ‘at least 6 months prior to the expiry of a convertible contract’.

66      It is therefore apparent from Article 2.0 of the Staff Rules that the assessment of the applicant could not be carried out in relation to the entire period of the fixed-term contract. In those circumstances, the administration would not be able to comply with the subsequent procedural requirement laid down in that provision, namely the obligation to adopt a conversion decision at least 6 months before the expiry of the fixed-term contract. That claim must therefore be rejected as unfounded.

67      In the light of the foregoing, the present plea of illegality must be rejected as unfounded.

–       The second plea in law, alleging infringement of Directive 1999/70 by Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules

68      The applicant raises a plea of illegality in respect of Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules, claiming that they are contrary to the Framework Agreement.

69      More specifically, he claims that, under paragraph 6 of the general considerations of the Framework Agreement, employment contracts of indefinite duration are the general form of employment relationship, which is confirmed in the Court’s case‑law. The applicant concludes that Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules do not comply with the principle laid down in paragraph 6 of the general considerations of the Framework Agreement. Furthermore, the applicant submits that the possibility of renewing a fixed-term contract, as provided for in Article 2.0 of the Staff Rules, can lead to abuse and that that kind of abuse is precisely what the Framework Agreement is intended to prevent. He adds that the decision of 15 November 2017, by which the ECB rejected his grievance, does not contain any ‘objective reasons’, as required under Clause 5(1)(a) of the Framework Agreement, justifying its conversion policy.

70      The ECB disputes the arguments put forward by the applicant.

71      Pursuant to Article 9(c) of the Conditions of Employment, the ECB is to apply, inter alia, the rules contained in the EU regulations and directives concerning social policy which are addressed to the Member States. In that regard, it must be borne in mind that a directive may be binding on an institution where the latter, within the scope of its organisational autonomy in particular, has sought to carry out a specific obligation laid down by a directive or in the specific instance where an internal measure of general application itself expressly refers to measures laid down by the Union legislature pursuant to the Treaties (judgment of 13 December 2016, IPSO v ECB, T‑713/14, EU:T:2016:727, paragraph 106).

72      However, even though Article 9(c) of the Conditions of Employment reflects the general principle that the uniform application of the law requires the EU institutions to respect the rules of EU law, including directives, and even though an EU measure must be interpreted, as far as possible, in conformity with primary law as a whole, it does not make any mention of an undertaking by the ECB to implement a specific obligation, in particular an obligation to set out the general principles and minimum requirements relating to fixed-term work, as referred to in the third paragraph in the preamble to the Framework Agreement (see, to that effect, judgment of 13 December 2016, IPSO v ECB, T‑713/14, EU:T:2016:727, paragraph 111).

73      Even though the applicant may argue that the conversion policy, Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules lay down minimum requirements relating to the convertibility of fixed-term contracts into contracts of indefinite duration, they are not incompatible with the principle, enshrined in the Framework Agreement, that employment contracts of indefinite duration are the general form of employment relationship.

74      It is apparent from a combined reading of the second and third paragraphs in the preamble to the Framework Agreement and from paragraphs 6 to 8 of the general considerations that, although it provides that contracts of indefinite duration are the general form of employment relationship, it does not establish a right to contracts of indefinite duration. In particular, it by no means follows from Directive 1999/70 or the Framework Agreement that stable employment has been established as a binding rule of law. Moreover, the abovementioned provisions emphasise the need to achieve a balance between flexibility and security. It should be added that, as the Court has previously held, the Framework Agreement does not lay down a general obligation, following a certain number of renewals of fixed-term contracts or completion of a certain period of work, to provide for the conversion of such contracts into contracts of indefinite duration (see, to that effect, judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 91, and 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 47).

75      In addition, contrary to the claims of the applicant, it does not follow from Article 10(c) of the Conditions of Employment or from Article 2.0 of the Staff Rules that they may give rise to a form of abuse, contravening clause 5 of the Framework Agreement. First of all, that clause lays down conditions governing the use by Member States of successive fixed-term employment contracts or relationships. That is not the case in the present instance, since Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules concern only whether a fixed-term contract may be converted into a contract of indefinite duration.

76      In that regard, the judgments of 15 April 2008, Impact (C‑268/06, EU:C:2008:223), and of 10 March 2011, Deutsche Lufthansa (C‑109/09, EU:C:2011:129), cited by the applicant, are not relevant in the present case. More specifically, unlike the present case, Deutsche Lufthansa concerned, inter alia, whether clause 5(1) of the Framework Agreement had to be interpreted as precluding national legislation which authorises, for any worker aged over 58, the conclusion of an unlimited number of successive fixed-term contracts without objective grounds for so doing, where there is no close objective connection with a previous contract of indefinite duration concluded with the same employer (judgment of 10 March 2011, Deutsche Lufthansa, C‑109/09, EU:C:2011:129, paragraph 29). As regards the first case, it raised, inter alia, the question whether clause 5(1) of the Framework Agreement prohibited a Member State, acting in its capacity as an employer, from renewing a fixed-term employment contract for up to 8 years in the period between the deadline for transposing Directive 1999/70 and the date on which the legislation transposing that directive entered into force (judgment of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraph 81).

77      Lastly, it should be noted that Article 10(c) of the Conditions of Employment provides that contracts concluded for a period of more than 1 year, issued against a permanent post, may be converted into contracts for an indefinite period and makes reference to Article 2.0 of the Staff Rules. The latter provision requires the administration to adopt a decision regarding the conversion of the contract ‘at least six months prior to the expiry of the convertible contract’ by assessing whether the performance of the staff member concerned is sufficient. It follows that the relevant legal framework of the ECB does not introduce a situation entailing the use of successive fixed-term contracts and, moreover, Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules specifically lay down the time frame for the conversion of a fixed-term contract into a contract of indefinite duration.

78      It is true that the ECB has the possibility of converting the contract, which means that conversion is at the discretion of the administration. The fact remains, however, that the institutions have a wide discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks on condition, however, that the staff are assigned in the interest of the service (judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 85).

79      In the light of the foregoing, the present plea of illegality must be rejected as unfounded and, more generally, the claim for annulment of the non-conversion decision of 2017 must also be rejected.

 The 2016 appraisal report

80      The applicant invokes, first, a procedural irregularity and lack of dialogue, secondly, infringement of the obligation to state reasons and the principle of good administration and due care, and lack of information and, thirdly, manifest errors of assessment.

–       The first plea in law, alleging a procedural irregularity and lack of dialogue

81      The applicant claims that the appraisal exercise for 2016 was vitiated by the absence of constructive dialogue in so far as the meetings with his line managers were brief and did not take the form of real discussions.

82      The ECB contends that the applicant has had several opportunities to express his views and that the dialogue with his appraisers was effective and constructive.

83      It should be noted that observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle requires that the person concerned must have been afforded the opportunity effectively to make known his views on any information against him which might have been taken into account in the measure to be adopted (see, to that effect, judgment of 20 November 2007, Ianniello v Commission, T‑308/04, EU:T:2007:347, paragraphs 68 and 69).

84      That case-law is also applicable to the appraisal procedure since the decision which finalises an appraisal report constitutes an act adversely affecting the staff member concerned in so far as it is capable of having a negative effect on his future career prospects. The fundamental principle of observance of the rights of the defence must, therefore, allow the individual concerned, during the appraisal procedure, to defend himself against any criticism of his conduct which might be taken into account (see, to that effect, judgment of 20 November 2007, Ianniello v Commission, T‑308/04, EU:T:2007:347, paragraph 70).

85      It is apparent from the documents before the Court that the applicant had meetings both with the first and the second appraiser in connection with his performance appraisal for 2016. As is confirmed by the applicant himself, he had ‘several occasions to express his views (appraisal meetings on 25 October, 15 November, 8 and 15 December 2016)’. In addition, it is apparent from the decision of 6 April 2017, concerning the applicant’s request for administrative review, that he had a meeting with his first appraiser on 14 September 2016.

86      Moreover, the ECB notes, without being contradicted by the applicant, that his interviews with the two appraisers went far beyond the usual length of appraisal discussions between members of staff and their appraisers. Lastly, it is apparent from the decision of 6 April 2017 concerning the request for administrative review that the applicant’s head of division had agreed with him to soften the tone of the assessment by asking the first appraiser to reopen the appraisal. It follows that the applicant had direct contact with his appraisers on a number of occasions and they offered him the opportunity to effectively put forward his views.

87      It is true that the applicant claims that he did not have a ‘proper and constructive’ dialogue with his appraisers as they included comments with which he did not agree in his appraisal report. However, even if the applicant had adduced proof of that claim, it would not amount to a procedural irregularity in relation to the right to be heard. It would rather relate to alleged errors of assessment on the part of his appraisers.

88      In the light of the foregoing, the present plea must be rejected as unfounded.

–       The second plea in law, alleging infringement of the obligation to state reasons and the principle of good administration and due care, and lack of information

89      The applicant claims that the 2016 appraisal report does not contain an adequate statement of reasons. He adds that he was caught by surprise by the report because his line managers and colleagues had given him mainly positive feedback on his work, at least until 23 June 2016, when he attended a meeting with his head of division and deputy head of division, during which they called in question his performance and behaviour. The applicant also claims that he did not receive guidance or assistance in order to improve the alleged deficiencies in his performance.

90      The ECB disputes the arguments put forward by the applicant.

91      As a preliminary point, it should be noted that the obligation to state reasons laid down in Article 296 TFEU is intended, first, to provide the person concerned with details sufficient to allow him to ascertain whether the act adversely affecting him is well founded and whether it is appropriate to bring proceedings before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see, to that effect, judgment of 13 September 2016, Pohjanmäki v Council, T‑410/15 P, not published, EU:T:2016:465, paragraph 77 and the case-law cited).

92      Furthermore, the sufficiency of the statement of reasons must be assessed in the light not just of its wording, but also of the factual and legal context in which the contested act was adopted (see judgment of 13 September 2016, Pohjanmäki v Council, T‑410/15 P, not published, EU:T:2016:465, paragraph 78 and the case-law cited).

93      It follows from the case-law that the administration is obliged to state in a sufficient and detailed manner the reasons on which each career development or appraisal report is based and to give the person concerned an opportunity to make observations on those reasons, compliance with those requirements being all the more important where the assessment is less favourable compared with the previous report (see, by analogy, judgment of 25 October 2005, Micha v Commission, T‑50/04, EU:T:2005:375, paragraph 36 and the case-law cited).

94      In addition, since the performance of a staff member may vary from one reference period to another, there must be a sufficiently clear discrepancy between the appraisal report of which annulment is sought and previous appraisal reports for the appraiser and countersigning officer to be under a particular obligation to provide a statement of reasons (see, to that effect and by analogy, judgment of 28 November 2006, Milbert and Others v Commission, T‑47/04, EU:T:2006:364, paragraphs 88 and 90).

95      Lastly, it must be borne in mind that, according to case-law, the duty to have regard for the welfare of staff and the principle of good administration, which apply to the administration, imply, inter alia, that when the administration takes a decision concerning the situation of an official, it must take into consideration all the factors which may affect its decision and that, when doing so, it should take into account not only the interests of the service but also those of the official concerned. (judgment of 23 October 2018, McCoy v Committee of the Regions, T‑567/16, EU:T:2018:708, paragraph 147).

96      In the present case, first, it is apparent from the documents before the Court that there is not a sufficiently clear discrepancy, within the meaning of the case-law cited in paragraph 94 above, between the assessments set out in the 2015 appraisal report and those in the 2016 appraisal report. It is clear from the 2015 appraisal report that the two appraisers made a number of comments which clearly identified the areas in which the applicant was required to improve his performance. Thus, the first appraiser noted that the effectiveness of his cooperation and his achievement of tangible results ‘might be further strengthened’ and that he would need to enhance ‘his ability to focus on relevance and synthesising’. For his part, the second appraiser added that the applicant should be ‘more proactive, taking over more difficult tasks and producing better quality outcomes’.

97      Contrary to the claims of the applicant, in the 2016 appraisal report, the two appraisers noted, further to the assessments set out in the 2015 appraisal report, the areas in which the applicant’s performance had not improved during the relevant period.

98      The first appraiser stated, inter alia, that:

‘The objectives set during the previous performance cycle as well as the areas of improvement identified have only partially been fulfilled. The effectiveness in achieving his tasks and the quality of output still needs to be considerably strengthened. … In my view, as member of his team, [the applicant] partially contributed to achieving the objectives of the Division. On several occasions, he missed deadlines which created pressure on the other team members and management, who needed to cover for [the applicant] … In general, I assess the quality of [the applicant’s] work as low, given the fundamental revisions needed to be carried out both technically and language wise. For this reason, [the applicant] requires close supervision from the management side, as it appears he often misunderstands what the expectations are (also when detailed instructions are given).’

99      For his part, the second appraiser confirmed the assessments of the first appraiser, while adding that ‘[the applicant] does not achieve tangible results, struggles to cooperate with team members and (project) managers and does not provide written output in an acceptable quality within given timelines’.

100    It follows from the foregoing that the conclusions of the appraisers in the 2016 appraisal report are in line with those in the 2015 appraisal report. Accordingly, the appraisers were not required to provide a specific statement of reasons in the 2016 appraisal report. In any event, it is apparent from that report that the two appraisers had described in sufficient detail the applicant’s unsatisfactory performance which, in the main part, had also been identified in the appraisal report for the previous year.

101    Moreover, the applicant does not dispute that he had a number of bilateral meetings with his head of division, the purpose of which was to give him feedback on his performance. It is true that the applicant claims that those meetings did not specifically relate to his performance and that their purpose was rather to address general and technical questions. However, in addition to the fact that that claim is subjective and is not corroborated by any of the documents before the Court, it is apparent from those documents that the matters discussed with his head of division did, at least partially, relate to the applicant’s performance of the tasks he was given and thus gave him the opportunity to identify weaknesses and, accordingly, improve his performance.

102    In that regard, it is apparent from the documents before the Court that, in connection with the drafting of a note for the supervisory board, at the meeting the applicant had on 19 July 2016 with his deputy head of division and his head of division, the latter two noted, inter alia, that ‘a lack of continued personal investment in tasks and responsibility assumed hampers the effectivity of processes and eventually the outcome’. Moreover, from a technical point of view, it was noted that ‘the quality of output did not meet basic expectations, for major (structural and substantial) changes to the draft note needed to be made’.

103    As regards the applicant’s additional arguments concerning the ECB’s failure to communicate on the relevance of his performance, set out in paragraphs 38 to 43 of the reply, in so far as, by those arguments, the applicant also calls into question the relevance of his appraisers’ assessments in the 2016 appraisal report, they do not relate to the present plea and it is appropriate to examine them in connection with the third plea, alleging manifest errors of assessment.

104    In the light of the foregoing, it must be held that the 2016 appraisal report contains a specific statement of reasons highlighting the most significant aspects of the applicant’s performance, emphasising the deficiencies noted in relation to his efficiency and skills and giving a number of examples supporting the appraisers’ comments. It follows that the 2016 appraisal report contains a sufficient and detailed statement of reasons which enabled the applicant to assess whether it was well founded. Moreover, it is apparent from the documents before the Court that the administration considered all the relevant factors pertaining to the applicant, taking account not only of the interest of the service but also those of the applicant.

105    The second plea must therefore be rejected as unfounded.

–       The third plea in law, alleging manifest errors of assessment

106    The applicant challenges the accuracy of the assessment made by his appraisers in the 2016 appraisal report.

107    The ECB disputes the arguments put forward by the applicant.

108    It is necessary to recall the conditions under which the Court may, particularly in relation to the assessment of the merits of staff members, find that a staff report, to which the contested appraisal report must be equated, is vitiated by errors of assessment.

109    Staff reports contain assessments which can give rise to judicial review only in order to ensure 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 by persons who are required to draw up those documents. In other words, the appraisers have the widest discretion when judging the work of people whom they are responsible for assessing and it is not for the Court to review the merits of that assessment, containing complex value judgments which, by their nature, are not susceptible of objective verification, except in the event of manifest error (judgment of 22 March 2018, HJ v EMA, T‑579/16, non publié, EU:T:2018:168, paragraph 160).

110    Moreover, an error is manifest only where it can be readily detected, in the light of the criteria to which the legislature intended the exercise of a decision-making power to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the challenged assessment may be accepted as being still true or valid (see, to that effect, judgment of 23 November 2017, PF v Commission, T‑617/16, not published, EU:T:2017:829, paragraph 58).

111    In the present case, first, the applicant states that there was no reason for not mentioning, in his assessment, the task relating to his participation in the internal models experts’ network.

112    That argument must be rejected.

113    It should be noted that the relevant part of the 2016 appraisal report which includes the assessments of the appraisers is entitled ‘Summary Assessments’. Consequently, it is not reasonable to expect the two appraisers to mention all the duties and tasks completed by the applicant throughout the period under consideration. A fortiori given that, as is apparent from the documents before the Court, the deputy head of division reminded the applicant on a number of occasions that that task was not regarded as a priority.

114    Secondly, the applicant claims that none of the tasks he was given were supervised by the first appraiser and that the second appraiser almost systematically communicated with him indirectly through the principal supervisor.

115    That argument must also be rejected.

116    It cannot be disputed that, because of their hierarchical relationship with the applicant, the two appraisers, namely the deputy head of division and the head of division, were responsible for the supervision and completion of the tasks assigned to the applicant. In addition, the applicant himself refers, in his application, to two emails sent by his head of division on 25 May and 4 June 2016 which were addressed to him and others. In those emails, the head of division made positive comments about the team’s work in completing the drafting of two notes relating to the supervisory review and evaluation process and the less significant institutions risk assessment system The applicant cannot therefore validly maintain that his two appraisers did not supervise the tasks he completed.

117    Thirdly, the applicant maintains that, although he suggested organising meetings with his line managers in order to clarify the issues raised in his appraisal, his suggestion was rejected.

118    In that regard, it is not apparent from the documents before the Court and, in particular, from the applicant’s comments regarding his 2016 appraisal report which were submitted as an annex to the application, that he had suggested holding a meeting with his line managers and other colleagues with a view to clarifying the issues raised in his assessment and that that suggestion was rejected.

119    Fourthly, the applicant claims that several statements in the 2016 appraisal report are incorrect. In particular, he submits that there is no evidence supporting the first appraiser’s statement that the applicant failed to meet deadlines, which put pressure on the other team members and his line managers. In addition, he claims that, contrary to the statements made by his first appraiser, his performance was not unsatisfactory in April 2016 and that the statements regarding the alleged poor quality of his work and English drafting are unfounded. He adds that he did complete the task of drafting a note for the supervisory board on the supervisory review and evaluation process (‘SREP’) timeline.

120    Those arguments must be rejected.

121    The applicant disagrees with his appraisers’ comments without furnishing any proof to support his claims. More specifically, the comment in the 2015 appraisal report that the applicant completed his tasks ‘within the deadlines’, does not in itself contradict, as is claimed by the applicant, the comment in the 2016 appraisal report, which thus concerned the following year, that ‘on several occasions, he missed deadlines which created pressure on the other team members’. That is the case  a fortiori since the applicant has not adduced any evidence in that regard, whereas, in the 2016 appraisal report, the first appraiser gives a specific example, namely the task of identifying the changes arising from the update of the ‘SSM manual’.

122    Moreover, the applicant is unable to substantiate his claims regarding not only the deficiencies in his performance, as noted by the first appraiser in respect of the month of April 2016, but also the task of drafting a note for the supervisory board on the SREP timeline and the fact that, linguistically, his work required fundamental revision.

123    In that regard, the applicant states that he has worked in English, in an international environment, since 1994 and that his Test of English for International Communication (‘TOEIC’) certificate indicates a score of 940, without specifying the score range for that test. However, in view, in particular, of the fact that the applicant worked as a senior supervisor of prudential supervision, those facts do not necessarily mean that he had the level of English required to complete the tasks he was given by his line managers. That is confirmed by the minutes, dated 19 July 2016, of the applicant’s meeting on 23 June 2016 with his superiors regarding the interim assessment of the quality of his work, which states, in particular, that: ‘… the quality of [the applicant’s] output did not meet basic expectations, for major (structural and substantial) changes to the draft note [regarding the SREP timeline] needed to be made. The lack of … efficient drafting skills were mentioned as the main concerns. The management also clarified that even if basic expectations were met by [the applicant], the requirements for a senior supervisor would still be substantially higher than the performance currently observed.’ It follows that the assessment of the first appraiser in the 2016 appraisal report regarding the linguistic aspect of the documents drafted by the applicant is not vitiated by a manifest error of assessment.

124    In addition, the applicant’s claims concerning his satisfactory completion of tasks relating to internal governance and risk management, the significant institutions manual and the note for the supervisory board are not sufficiently established. As regards the task relating to internal governance and risk management, it is apparent from the documents before the Court that the applicant’s line manager clearly informed the applicant, on two occasions, that he was not satisfied with the applicant’s performance of that specific task. As regards the task relating to the note for the supervisory board, as has already been stated in paragraph 102 above, the applicant’s line managers gave him negative feedback regarding the quality of his performance in that regard in July 2016. The relevance of the assessments of the applicant’s line managers in that respect is corroborated by the comments of the project coordinator, who also referred to the applicant’s unsatisfactory performance.

125    Moreover, the encouraging feedback, noted by the applicant, from colleagues and persons outside the ECB, is not relevant for the purpose of establishing a manifest error of assessment in the 2016 appraisal report, since it does not come from his line managers. As regards the two emails with a positive tone sent on 25 May and 4 June 2016 by the applicant’s head of division, in view, inter alia, of their limited number, of the fact that they were not addressed solely to the applicant but also to other members of his team and, above all, of the considerations set out in paragraphs 121 to 124 above, those emails are not sufficient to establish that the 2016 appraisal report was vitiated by manifest errors of assessment.

126    Lastly, in the light of the fact that the comments made by the appraisers are corroborated by the documents before the Court, the applicant’s claims in connection with the tasks relating to certain significant changes made to the significant institutions manual, the execution of the monitoring of all passporting procedures and the fact that he was moved away from methodological tasks, do not render the appraisers’ assessments in the 2016 appraisal report implausible. In any event, as noted by the ECB, the applicant worked on matters relating to the issuing of passports for only a few days. As regards the argument concerning the applicant’s wish to work on matters relating to methodology and the refusal of his line managers to give him such tasks, even if those factors may have had an impact on the relevance of his appraisers’ assessments, it is clear that that is merely a subjective assessment of the applicant, which is not corroborated by the documents in the file.

127    Fifthly, the applicant considers that there was a structural problem relating to the workload in his division, which was not sufficiently taken into account by his appraisers. Lastly, he notes that his division obtained a particularly low score in the survey carried out by an outside company relating to the staff sentiment at the ECB, carried out on 27 May 2015.

128    As regards the heavy workload in the applicant’s division, the applicant has not sufficiently explained the impact that that fact, which affected all the workers in his division, may have had on his appraisal report. The same applies to the results of the staff survey cited by the applicant. Even if the results of that survey highlighted unfavourable working conditions in his division and were also negative in respect of his head of division, they would not be relevant for the purposes of establishing that the 2016 appraisal report is vitiated by a manifest error of assessment. In any event, it is apparent from the results of that survey that the applicant is selective in choosing statistics given that he failed to mention the positive results of the survey in respect of, inter alia, his head of division.

129    In the light of the foregoing, the arguments put forward by the applicant are not sufficient to render the assessments made by the appraisers in his 2016 appraisal report implausible. Consequently, the assessments at issue may be accepted as valid.

130    The present plea must therefore be rejected as unfounded and, more generally, the claim for annulment of the 2016 appraisal report, must also be rejected.

 The 2016 ASBR decision

131    In support of his claim for annulment of the 2016 ASBR decision, the applicant puts forward three pleas in law, alleging, first, that the ASBR guidelines are unlawful, breach of the obligation to state reasons and breach of the principle of legal certainty, secondly, failure to adequately explain the background of the applicant’s salary award and lack of transparency and, thirdly, a manifest error of assessment.

132    Given that some of the complaints raised in support of those three pleas overlap, in particular as regards the plea relating to the obligation to state reasons, those pleas will be examined together.

133    The applicant raises a plea of illegality in respect of the ASBR guidelines. He claims that the awarding of points under the ASBR procedure is not based on precise assessment criteria and therefore lacks clarity and transparency.

134    In particular, the applicant maintains that, in so far as the ASBR guidelines provide only for an oral statement of reasons by the line managers of the persons concerned, compliance with the obligation to state reasons is not guaranteed. He adds that the uncertainty arising from the ASBR guidelines may have a negative impact on the staff member’s chances of being awarded a contract for an indefinite period since ASBR decisions have become a crucial element in the conversion of contracts.

135    In addition, the applicant considers that there was a lack of transparency and a breach of the obligation to state reasons since he did not receive any due explanation regarding the background of his performance and the annual salary increase of one step, in either absolute or relative terms.

136    Lastly, the applicant claims that, as his assessment was vitiated by a number of irregularities, those irregularities also ‘undermined’ the 2016 ASBR decision. Given that the conclusions of the ASBR exercise must be consistent with those of the appraisal exercise, he considers that the 2016 ASBR decision was vitiated by a manifest error of assessment.

137    The ECB contends that the applicant has no legitimate interest in bringing proceedings because he was indeed provided with written reasons for his 2016 ASBR decision, namely the statement concerning the main points discussed during the applicant’s meetings with his line manager regarding the background of his 2016 ASBR decision’, dated 20 July 2017 and annexed to the decision on his grievance of 28 July 2017.

138    The ECB also disputes the merits of the arguments put forward by the applicant.

139    It should be noted at the outset that, as regards the plea of inadmissibility put forward by the ECB concerning the applicant’s alleged lack of interest in bringing proceedings, it is settled case-law that for an action to be admissible, the applicant must have, at the time of bringing the action, a vested and present interest, which is sufficiently established, in having the individual contested decisions annulled and such an interest presupposes that the action is likely, if successful, to procure an actual advantage for the applicant (see, to that effect, judgment of 9 December 2010, Commission v Strack, T‑526/08 P, EU:T:2010:506, paragraph 43 and the case-law cited).

140    In the present case, the parties do not dispute the fact that the annulment of the 2016 ASBR decision would procure an advantage for the applicant since the ECB would subsequently be forced to reinitiate the 2016 ASBR and possibly, as a result, to reassess the number of steps to be awarded to the applicant. Accordingly, the ECB’s plea of inadmissibility cannot be upheld.

141    In so far as, by that plea of inadmissibility, the ECB challenges the applicant’s complaint that he was not adequately informed of the reasons for the 2016 ASBR decision, it is necessary to examine the arguments relating to that complaint in the context of the examination of the merits of that complaint.

142    It should be noted that guidelines, although not constituting the legal basis of the 2016 ASBR decision, may be contested by means of an objection of illegality if they were used for the adoption of that act (see, to that effect, judgment of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101 paragraph 31).

143    Moreover, it follows from case-law that an act of general application within the meaning of Article 277 TFEU is an act which applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in the abstract (see, to that effect, judgments of 27 March 1990, Cargill and Others v Commission, C‑229/88, EU:C:1990:138, paragraph 18, and of 21 October 2010, Agapiou Joséphidès v Commission and EACEA, T‑439/08, not published, EU:T:2010:442, paragraph 53).

144    In the present case, it is apparent from the documents before the Court that the ASBR guidelines are an act of general application since they apply to objectively determined situations and produce their legal effects with respect to categories of persons envisaged in the abstract, namely the members of staff of the ECB. 

145    Furthermore, it is not in dispute that the 2016 ASBR decision was adopted in accordance with the principles laid down by the ASBR guidelines. Accordingly, there is a direct legal connection between the two acts. In addition, there is no doubt that the ASBR guidelines apply to the situation at issue, since it concerns a dispute concerning the appraisal of a staff member of the ECB under the ASBR procedure.

146    As regards the merits of the present claims for annulment, they are unfounded. First of all, contrary to the claims of the applicant, point 5 of the ASBR guidelines provides that individual letters ‘are prepared by DG-H’ and handed out to staff members by local management. That is what happened in the present case, since a letter dated 24 May 2017 was addressed to the applicant personally, stating:

‘As explained by your management, this [salary] award is based on your personal development of relevance to the ECB, as well as on your contribution to the success of the business area and the ECB at large, as compared to the contribution of the other staff members in your business area. Your award has also taken into account your current level within your salary band and the concomitant expectations concerning your performance and personal development.’

147    In addition, point 5 of the ASBR guidelines also provides that, when giving staff members the letter regarding the salary increase, line managers should explain the background of the decision relating to their award, based on their relative contribution. In the present case, it is not disputed by the parties that the applicant was informed by his superiors of the background of the adoption of the 2016 ASBR decision and his award of one step.

148    That is  a fortiori the case since the document entitled ‘Declaration about the main points discussed during the meetings with [the applicant] regarding the background of his 2016 ASBR decision’ of 20 July 2017, drafted by his head of division and attached to the decision rejecting his administrative grievance of 28 July 2017, refers to two meetings at which the applicant was present, which took place on 11 January and 1 June 2017, during which the 2016 ASBR decision was raised and the applicant was informed in detail of the reasons for that decision.

149    It follows from the foregoing that, in the present case, the administration did not confine itself to merely informing the applicant orally, through his superiors, of his ASBR award, but had already sent to him a personal letter listing the factors and criteria it relied on when deciding to award him one salary step.

150    In that regard, and as regards the obligation to state reasons, it must be observed that, while the effect of that obligation is that when the administration, in the present case the ECB, exercises its powers it must comply with certain requirements, the effect cannot be that the ECB is compelled to abandon the wide discretion which it has decided to maintain in implementing its policy on awarding individual salary increases and to establish in a document the assessment criteria which it intends to use in order to exercise its discretion.

151    Likewise, as regards the principle of legal certainty, relied on by the applicant, it must be noted that, while that principle requires administrative authorities, when adopting rules, to draft them in such a way that they are sufficiently clear, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly, that principle does not oblige an administrative authority, in this case the ECB, to restrict the discretion which it means to exercise in relation to individual salary increases by adopting implementing measures to establish how it intends to exercise that discretion in the future.

152    Lastly, the plea alleging a manifest error of assessment is based on a mistaken premiss, in so far as the applicant considers that his 2016 assessment was vitiated by a number of irregularities that undermined the 2016 ASBR decision. Given that the claims directed against the 2016 appraisal report have been rejected, that plea for annulment is unfounded.

153    Moreover, contrary to the claims of the applicant, there is no inconsistency between his appraisal and the ASBR exercise. The fact that he was awarded one step in the 2016 ASBR is consistent with the critical assessments of the applicant’s appraisers in his 2016 appraisal report. In so far as the applicant claims, in the present plea, a lack of consistency between the conclusions in the 2016 ASBR decision and his 2016 appraisal report, it should be noted that, according to the ASBR guidelines, that procedure is a separate assessment independent from the Appraisal. As a result, a direct read across from one exercise to the other is not possible.’

154    In the light of the foregoing, the ASBR guidelines clearly and sufficiently establish the administration’s obligation to include a statement of reasons in the 2016 ASBR decision. Moreover, that is what happened in the present case, given that the applicant received a personal letter in that regard and, as is clear from the statement made by his line manager of 20 July 2017, the applicant was subsequently informed by his head of division of the background to the adoption of the 2016 ASBR decision.

155     The claims for annulment of the 2016 ASBR decision, alleging that the ASBR guidelines are unlawful, breach of the obligation to state reasons, breach of the principle of legal certainty, and manifest error of assessment, must therefore be rejected.

156    In conclusion, in the light of all the above considerations, the claims for annulment must be declared unfounded in their entirety and, accordingly, they must be rejected.

 The claim for damages

157    The applicant seeks compensation, in the amount of EUR 20 000, for the non-material damage he claims to have suffered. He claims the non-material damage resulted from the lack of care in dealing with his file and the manner in which that affected his dignity, health and well-being, in addition to the negative repercussions it had on his professional performance.

158    The ECB contends that the rejection of the heads of claim seeking annulment must necessarily lead to the rejection of the claim for damages.

159    It must be observed that, in accordance with settled case-law, claims for compensation, submitted together with claims for annulment which have no foundation in law, are themselves without any foundation in law if they are closely linked to the claims for annulment (see judgment of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101, paragraph 86 and the case-law cited).

160    The applicant’s claims for compensation, submitted together with the claims for annulment, are based on the alleged illegality of the contested acts and are therefore closely linked to the claims for annulment. The claims for annulment have been declared unfounded in their entirety and have been rejected on that basis.

161    The claim for compensation must consequently also be rejected.

 Costs

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

163    In the present case, since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the ECB.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders VF to pay the costs.

Delivered in open court in Luxembourg on 24 September 2019.

Table of contents

Legal framework

Framework Agreement on fixed-term work

Relevant provisions relating to the ECB

General provisions

Annual appraisal report

The ASBR

Background to the dispute

Facts relating to the applicant’s appraisal and ASBR for 2016

Facts relating to the non-conversion of the applicant’s contract

Procedure and forms of order sought

Law

Subject matter of the action

The heads of claim seeking annulment

Preliminary observations

The non-conversion decision of 2017

– The first plea in law, alleging infringement, by the conversion policy, of Article 10(c) of the Conditions of Employment and of Article 2.0 of the Staff Rules

– The second plea in law, alleging infringement of Directive 1999/70 by Article 10(c) of the Conditions of Employment and Article 2.0 of the Staff Rules

The 2016 appraisal report

– The first plea in law, alleging a procedural irregularity and lack of dialogue

– The second plea in law, alleging infringement of the obligation to state reasons and the principle of good administration and due care, and lack of information

– The third plea in law, alleging manifest errors of assessment

The 2016 ASBR decision

The claim for damages

Costs

*      Language of the case: English.

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