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

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

5 October 2022 (*)

(Civil service – EIB staff – Performance appraisal – Promotion – Administrative review – Special procedure applicable to appraisal decisions – Rule of correspondence between the administrative review and the subsequent application – Intensity of the review – Obligation to state reasons – Right to be heard – Manifest error of assessment – Liability)

In Case T‑311/21,

SV, represented by L. Levi, lawyer,

applicant,

v

European Investment Bank (EIB), represented by K. Carr and G. Faedo, acting as Agents, and by B. Wägenbaur, lawyer,

defendant,

THE GENERAL COURT (Fourth Chamber),

composed, at the time of deliberations, of S. Gervasoni (Rapporteur), President, L. Madise and J. Martín y Pérez de Nanclares, Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1        By his action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicant, SV, seeks, first, annulment of his 2019 Performance Document and of the subsequent decisions adopted in the context of the special procedure for administrative review applicable to the appraisal decisions of the European Investment Bank (EIB) and, secondly, compensation for the damage he claims to have suffered as a result.

I.      Background to the dispute

2        The applicant entered the service of the EIB in [confidential], (1) on the basis of a contract for an indefinite period, as executive staff function level F. In 2019, he held the post of lawyer function E in the [confidential] Division of the [confidential] Department of the Directorate-General (DG) for Legal Affairs.

3        In 2017, at the end of the annual appraisal exercise, the applicant’s performance profile was described as ‘performing’. The applicant obtained the performance mark B+, which corresponds to a very good performance, progressed by one step and received an individual award.

4        In 2018, the applicant’s performance profile was described as ‘top performer’. The applicant obtained performance mark A, which corresponds to an exceptional performance, progressed by two steps and received an individual award.

5        In the 2019 Performance Document, the achievement of each objective and the demonstration of each of the applicant’s competencies were considered to meet expectations, with the exception of the ‘change orientation’ competency, for which he was awarded the mark ‘above expectations’. Overall, the applicant’s performance was considered, as regards, first, objectives and, secondly, competencies to meet expectations. The applicant’s performance profile was described as ‘performing’.

6        In his comments of 15 January 2020 on the 2019 Performance Document, the applicant’s manager, the Head of Division, stated that he had met with the applicant on 10 January 2020. He stated that the applicant had taken over a smaller number of new transactions in order to focus on his transversal tasks and provided further details on those tasks. He noted, concerning transactions, the way in which the applicant had provided a valuable contribution and played a decisive role in the [confidential] transaction. He stated: ‘We discussed collaboration and we noted the efforts [the applicant] has made to improve collaboration which are showing fruit …’ (‘the comment on collaboration’).

7        As regards 2019, the applicant obtained performance mark B, that is to say, ‘meets all expectations’. He did not advance a step and did not receive an individual award.

8        On 18 May 2020, the applicant submitted a request for a ‘Staff – DG’ review to the Director-General for Legal Affairs concerning the outcome of his performance appraisal under the special procedure applicable to appraisal decisions provided for by the Implementing Rules on the Administrative Review of 26 March 2020 (‘the Implementing Rules’). He took the view that, for 2019, his performance mark, the absence of an individual award and the comment on collaboration did not reflect his performance. He submitted that he had exceeded his objectives from a quantitative point of view by achieving nine objectives and by carrying out additional tasks not set out in his objectives. He considered that he had exceeded his objectives from a qualitative point of view by continuously carrying out his tasks at a higher level than that of lawyer function E, in particular in the context of the [confidential] transaction. He stated that the comment on collaboration was misleading, since it implied that there was still a need to improve that collaboration. He requested the Director-General to amend the comment on collaboration as follows: ‘We discussed [the applicant’s] promotion to level D which can be expected not later than within the performance cycle for 2020’. He also asked the Director-General to award him the ‘above expectations’ mark as regards most of the objectives and all the competencies, namely performance mark A, five additional steps and, in the event that an individual award could not be given to him for procedural or budgetary reasons, his promotion to a higher function.

9        On 26 June 2020, the Director-General for Legal Affairs informed the applicant that, after interviewing him on 27 May and then on 25 June 2020, and having consulted the Head of Division and the Director of the [confidential] Department, she had decided to confirm the 2019 appraisal report and not to change the related appraisal awards (‘the decision of the Director-General of the Legal Directorate’). She explained that, despite the applicant’s good performance in 2019, there was insufficient evidence to conclude that a major error of assessment had been committed in awarding him performance mark B. She considered that, taking account of the relative assessment of his performance, the applicant’s managers did not consider that he had had an exceptional year in 2019, as many lawyers in the DG for Legal Affairs had shown a very strong performance. She took the view that the applicant’s number of objectives, in itself, was not an indicator that he was a ‘top performer’, that, even if he had achieved his objectives, progress had been slower than expected with regard to two important objectives and that his workload had to be reduced in other areas in order to enable him to achieve those objectives. She considered that although the applicant’s work on the [confidential] transaction, which was particularly difficult, had been very much appreciated, it was not unusual for colleagues at his level of seniority to work on complex transactions. She took the view that the appraisal of the applicant’s competencies reflected the assessment of his manager that other colleagues from his peer group had demonstrated a greater commitment and a greater willingness to take on additional work, and that, in that regard, the applicant had not outperformed his colleagues. She took the view that there was no need to change the comment on collaboration.

10      On 25 August 2020, the applicant lodged an administrative review against the 2019 Performance Document, on the basis of Article 41 of the Staff Regulations applicable to staff already in service on 30 June 2013 (‘the Staff Regulations I’) and paragraph 4.3 of the Implementing Rules. He stated that he did not claim to have had an exceptional year but that his performance had exceeded the average and deserved at least a B+ performance mark. He sought, in addition to the annulment of the decision of the Director-General of the Legal Directorate, the deletion of the comment on collaboration or its replacement by the words ‘as a positive recognition of [the applicant’s] hard work in the area of collaboration, I note the fruitful efforts [the applicant] made in this area’, the replacement of his performance mark B by, at the very least, a B+ performance mark and an independent review of the outcome of his performance appraisal, including an assessment of how the requirements of objective and transparent assessment as set out in the Performance Management Guidelines for the 2019 Performance Cycle, last updated in December 2019 (‘the Guidelines’) were adhered to and an assessment of the objective reasons for the decision not to promote the applicant to function D, especially from the point of view of ‘equal pay for the same work’.

11      On 22 February 2021, the Director-General of Personnel rejected the applicant’s request for administrative review as unfounded (‘the decision of the Director-General of Personnel’).

II.    Forms of order sought

12      The applicant claims that the Court should:

–        annul the 2019 Performance Document;

–        annul the decision of the Director-General of the Legal Directorate and the decision of the Director-General of Personnel;

–        order the EIB to pay compensation for material damage and non-material damage assessed ex aequo et bono at EUR 5 000;

–        order the EIB to pay the costs.

13      The EIB contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

III. Law

A.      The claims for annulment

1.      The subject matter of the claims for annulment

14      According to settled case-law, claims for annulment formally directed against the decision rejecting an administrative review, within the meaning of Article 41 of the Staff Regulations I, have the effect of bringing before the Court the act against which that administrative review was brought where those claims as such lack any independent content (see, to that effect and by analogy, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).

15      In the present case, the claims for annulment of the decision of the Director-General for Legal Affairs and annulment of the decision of the Director-General of Personnel, adopted under the special procedure for administrative review applicable to appraisal decisions, as provided for in paragraph 4 of the Implementing Rules, have independent content and should not be confused with the 2019 Performance Document for two reasons.

16      In the first place, both the decision of the Director-General for Legal Affairs and the decision of the Director-General of Personnel, even though they confirm the 2019 Performance Document, have a broader subject matter than that document.

17      In her decision, the Director-General for Legal Affairs rejected the request for a ‘Staff – DG’ review, by which the applicant asked her not only to amend the 2019 Performance Document, but also, first, to award him performance mark A, which does not appear in the 2019 Performance Document, secondly, to award him five additional steps and, thirdly, in the event that he cannot be granted an individual award for procedural or budgetary reasons, that his promotion to a higher function should be considered.

18      Likewise, in her decision, the Director-General of Personnel rejected the administrative review, by which the applicant sought not only annulment of the decision of the Director-General for Legal Affairs in so far as, in essence, it confirmed the 2019 Performance Document, but also, in the first place, replacement of his performance mark by, at the very least, a B+ performance mark and, in the second place, independent review of the outcome of his performance appraisal, including an assessment of the objective reasons for not promoting him to function D.

19      In the second place, the first plea in law, relating to the intensity of the review carried out by the competent authority in the context of, first, the ‘Staff – DG’ review and, secondly, the administrative review, seeks to challenge specifically the lawfulness of the decision of the Director-General for Legal Affairs and that of the Director-General of Personnel.

20      In the event that the Court upholds the first plea in law, it could lead, where appropriate, to the annulment of the decision of the Director-General for Legal Affairs or that of the Director-General of Personnel or to there no longer being any need to adjudicate in respect of the claims for annulment of the 2019 Performance Document (see, to that effect and by analogy, order of 21 September 2015, De Nicola v EIB, T‑848/14 P, EU:T:2015:719, paragraph 40).

21      Consequently, the claims for annulment must be regarded as directed against the three decisions expressly referred to by the applicant in the application and in the reply (‘the contested decisions’), bearing in mind that, in the context of the examination of the lawfulness of the 2019 Performance Document, it is necessary to take into consideration the statement of reasons for the decision of the Director-General for Legal Affairs and that for the decision of the Director-General of Personnel, those reasons being deemed to be the same as those for the 2019 Performance Document concerning the content of that document, which they confirm (see, to that effect and by analogy, judgment of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 43 and the case-law cited).

2.      Admissibility of the claim for annulment of the decision of the Director-General for Legal Affairs

22      The EIB expresses doubts as to the admissibility of the action in so far as it is directed against the decision of the Director-General for Legal Affairs. It considers that an act which is purely confirmatory in relation to a previous act that has become final cannot be the subject of an action for annulment under Article 263 TFEU. In any event, that decision is not an autonomous or separate decision from the 2019 Performance Document and, consequently, cannot be challenged in isolation.

23      The applicant disputes that argument.

24      According to settled case-law, an act which contains no new factor as compared with a previous measure is a purely confirmatory act and cannot therefore have the effect of setting a new time limit for bringing proceedings in favour of the addressee of the earlier measure (judgment of 10 December 1980, Grasselli v Commission, 23/80, EU:C:1980:284, paragraph 18, see also, to that effect, judgment of 18 October 2007, Commission v Parliament and Council, C‑299/05, EU:C:2007:608, paragraphs 28 and 29).

25      An action against a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned because no action has been brought within the prescribed period. Otherwise, the person concerned is entitled to challenge either the confirmed decision, or the confirmatory decision, or both (see, to that effect, judgments of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 54; of 31 May 2017, DEI v Commission, C‑228/16 P, EU:C:2017:409, paragraph 35; and of 10 March 2021, AM v EIB, T‑134/19, EU:T:2021:119, paragraph 28).

26      It is apparent from the case-law referred to in paragraphs 24 and 25 above that whether or not a measure is purely confirmatory relates to the question of the time limit for bringing proceedings.

27      In the present case, the EIB neither establishes nor even claims that the 2019 Performance Document, which was confirmed by the decision of the Director-General for Legal Affairs, became final with regard to the applicant, since it was not the subject of an action brought within the prescribed period.

28      As regards the EIB’s alternative argument that the decision of the Director-General for Legal Affairs cannot be challenged in isolation, since it is not an autonomous or separate decision from the 2019 Performance Document, it must be held that, for the reasons stated in paragraph 25 above, that argument cannot call into question the admissibility of the claim for annulment of the decision of the Director-General for Legal Affairs.

29      In addition, it should be noted that the case-law referred to in paragraph 14 above cannot prevent the applicant specifically disputing, as in the present case, the lawfulness of the procedure in the context of the request for a ‘Staff – DG’ review (see, to that effect and by analogy, judgment of 19 June 2015, Z v Court of Justice, T‑88/13 P, EU:T:2015:393, paragraph 144).

30      In the event of annulment by the Court of the decision rejecting the request for a ‘Staff – DG’ review, it is for the EIB to re-examine the outcome of the performance appraisal in the context of that action by ensuring the lawfulness of the pre-litigation procedure (see, to that effect and by analogy, judgment of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338, paragraph 60).

31      Consequently, the claim for annulment of the decision of the Director-General for Legal Affairs is admissible.

3.      The pleas in law raised in the action

(a)    The first plea in law, alleging that the 2019 Performance Document was not subject to a comprehensive review in the context of the request for a ‘Staff – DG’ review and of the administrative review

32      The applicant submits that, under the Implementing Rules, the director-general concerned and the Director-General of Personnel have complete power to review the performance appraisal. That power is confirmed by the fact that those authorities are able to amend the results of that appraisal, pursuant to paragraphs 18 and 33 to 35 of those implementing rules. As regards the administrative review, according to paragraph 11 of the Implementing Rules, the Director-General of Personnel is to carry out a full review of the contested act.

33      The applicant claims that neither the Director-General for Legal Affairs nor the Director-General of Personnel carried out a comprehensive review of his performance appraisal. He adds that it cannot be ruled out that a full review would have led to a different result.

34      The applicant claims that, in the context of the request for a ‘Staff – DG’ review, the Director-General for Legal Affairs expressly stated that her review was limited to whether there had been a manifest error of assessment. In his view, the wording of the Director-General’s decision shows that in general she merely referred to the assessment of his manager and determined whether that assessment was plausible. He considers that the Director-General did not compare his performance with that of his colleagues and did not take into account the comments he made in support of his request for a review.

35      Similarly, the applicant considers that, in the context of the administrative review, the Director-General of Personnel generally referred to the assessment of the applicant’s manager or the Director-General for Legal Affairs and did not reassess his performance appraisal in the light of his comments. The Director-General of Personnel wrongly stated that a member of staff challenging his performance appraisal must show that there has been a manifest error of assessment, a procedural defect or an error of fact.

36      The EIB contends that the plea is unfounded.

37      It is necessary to examine the first plea in law so far as concerns, first, the decision of the Director-General for Legal Affairs and, secondly, the decision of the Director-General of Personnel.

38      In the first place, Article 22 of the Staff Regulations I provides:

‘Each member of staff shall be subject to an annual assessment which shall be communicated to them. The procedure to be followed for that assessment is determined by an internal decision.’

39      The Implementing Rules, which specify the administrative review mechanism provided for in Article 41 of the Staff Regulations I, include paragraph 4, entitled ‘Special procedure applicable to appraisal decisions’, which includes paragraph 4.2, entitled ‘The Staff – DG review’ and paragraph 4.3 entitled ‘Administrative Review’.

40      It is apparent from paragraphs 18 and 19 of the Implementing Rules that the request for a ‘Staff – DG’ review is an informal and optional way to challenge the outcome of the performance appraisal with the director-general concerned following the communication of the first payslip including the performance award granted in the appraisal exercise.

41      It is apparent from paragraph 24 of the Implementing Rules that the director-general concerned has the power to amend the outcome of the performance appraisal. Such power tends to show that he or she conducts a full review of the outcome of the performance appraisal (see, to that effect, judgment of 27 April 2012, De Nicola v EIB, T‑37/10 P, EU:T:2012:205, paragraphs 41 and 42).

42      It is, moreover, apparent from paragraphs 20 and 21 of the Implementing Rules that, in the context of the request for a ‘Staff – DG’ review, that request must contain all supporting elements and that, in addition, the director-general concerned and the staff member must meet, since the assessor or assessors of the staff member may attend that meeting.

43      In those circumstances, since the director-general concerned has the power to amend himself or herself the outcome of the performance appraisal and since the procedural rules allow him or her to have all the necessary information for that purpose, it must be held that the review carried out by the director-general concerned in that regard is a comprehensive review.

44      In the present case, the applicant claims that the Director-General for Legal Affairs did not carry out a comprehensive review of the outcome of his performance appraisal.

45      It is true that it is apparent from the decision of the Director-General for Legal Affairs that she stated that she ‘[did] not consider that there [was] sufficient evidence to conclude that a major error of assessment [had] been made in awarding the B performance score’.

46      Such a statement, considered in isolation, suggests that the Director-General for Legal Affairs carried out a limited review of the performance mark awarded to the applicant.

47      However, it is appropriate to examine in a comprehensive manner, taking account of all the documents in the case file, whether the Director-General for Legal Affairs actually carried out a review satisfying the requirements of a comprehensive review (see, to that effect and by analogy, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraphs 47 and 59).

48      It should be noted that, in the context of the informal review provided for in paragraph 4.2 of the Implementing Rules, the Director-General for Legal Affairs did not use the words ‘manifest error of assessment’, which generally correspond to the concept of limited review, and, moreover, used the words ‘major error of assessment’ only on one occasion, without stating generally that her review was limited to that of a manifest error of assessment. From that point of view, the present case differs from that which gave rise to the judgment of 27 April 2012, De Nicola v EIB (T‑37/10 P, EU:T:2012:205, paragraph 55), in which the Appeals Committee considered, in unambiguous terms and in general, ‘that a mark may be amended only in the event of manifest error in the appraisal of the performance of the person being assessed’. In addition, since, in the request for a ‘Staff –DG’ review, the applicant had requested that he be awarded performance mark A rather than mark B, the discrepancy between the mark awarded to the applicant and that which he requested was significant, which is capable of explaining the words ‘major error of assessment’ used by the Director-General for Legal Affairs concerning the performance mark awarded to the applicant.

49      Furthermore, it is apparent from the reasoning for the decision of the Director-General for Legal Affairs that she herself assessed the applicant’s performance. Thus, the Director-General did not merely refer to the appraisal of the Head of Division and the Director of the [confidential] Department, which, moreover, it was legitimate to take into account. She described the applicant’s performance directly, stating to him that ‘[he had] performed well in 2019’, that ‘[his] work and [his] contribution [were] appreciated not only by [her], but also by [his] [Head of Division] and [his] Director’ and that ‘[he had] performed well, which [was] reflected by [the] mark [B] and by the comments of [his] managers in the [performance] document’.

50      Similarly, the Director-General for Legal Affairs did not disregard her power to alter the outcome of the performance appraisal, not only as regards the performance mark, but also, significantly, and without referring to any limitation of her review, as regards a particular comment. She thus informed the applicant that, ‘regarding [the] request to change [the comment on collaboration], [she had] decided not to make changes’ and that, ‘consequently, [she thought] that it [was] justified to address this point in the 2019 [performance] document’.

51      Contrary to what the applicant also submits, the Director-General for Legal Affairs compared his performance to that of his peers, as is apparent from the references to the appraisal relating to ‘colleagues in JU’ and ‘other colleagues’. She stated in particular: ‘I appreciate that, from your perspective, you feel you had a busy and productive year but, for example, other colleagues, even when busy were still prepared to take on a share of new work arriving’.

52      As regards the applicant’s argument that the Director-General for Legal Affairs did not take into account the comments submitted in support of his request for review, it must be held that a comprehensive review does not involve responding to all the comments submitted in support of such a request and that, in the present case, the Director-General responded sufficiently to those comments, both as regards the objectives, in particular their number, and the [confidential] transaction, and as regards competencies, in particular as regards the comment on collaboration.

53      Finally, the comprehensive nature of the review carried out in the present case by the Director-General for Legal Affairs is borne out by the procedure followed in the request for a ‘Staff – DG’ review. Thus, it is apparent from the decision of the Director-General for Legal Affairs that she interviewed the applicant twice and that she also consulted both the Head of Division and the Director of the [confidential] Department.

54      Consequently, despite the clumsy use of the words ‘major error of assessment’ in the decision of the Director-General for Legal Affairs, words which do not reflect the extent of the review carried out by her, the applicant is not justified in claiming that the outcome of his performance appraisal was not subject to a comprehensive review in the context of the request for a ‘Staff – DG’ review.

55      In the second place, it is apparent from paragraph 33 of the Implementing Rules that, under the administrative review provided for by the special procedure applicable to appraisal decisions, the Director-General of Personnel is to carry out ‘a review’ of the outcome of the performance appraisal.

56      In that regard, the wording of paragraph 33 of the Implementing Rules differs from that of paragraph 11 of those rules, which concerns an administrative review under the general procedure and states that the Director-General of Personnel is to carry out a ‘full review’ of the contested act or decision. That difference tends to show that the review carried out by the Director-General of Personnel under the special procedure applicable to appraisal decisions is more limited than the full review which he or she carries out under the general procedure.

57      Furthermore, it is apparent from paragraphs 34 and 35 of the Implementing Rules that, although the Director-General of Personnel may amend the outcome of the performance appraisal, that power is very circumscribed, since he or she cannot make such an amendment himself or herself. First, the Director-General must consult the director-general concerned in advance, secondly, the amendment to the performance appraisal is carried out, on the basis of a recommendation from the Director-General of Personnel, by the director-general concerned, who then submits the amended performance appraisal to the Director-General of Personnel.

58      The very circumscribed power to amend of the Director-General of Personnel with regard to the performance appraisal enables him or her to exercise a limited review of the outcome of the performance appraisal. After taking the view that the outcome of the performance appraisal is vitiated by a manifest error of assessment, the Director-General of Personnel may recommend that the director-general concerned make the necessary amendments to ensure that the performance appraisal is no longer vitiated by such an error and then verify, before giving his or her agreement, that the amended appraisal complies with his or her recommendation. Thus, the Director-General of Personnel substitutes his or her own appraisal for that of the director-general concerned only in the event of a manifest error of assessment, following a dialogue with the director-general concerned.

59      The limited nature of the review carried out by the Director-General of Personnel of the outcome of the performance appraisal is consistent with the case-law according to which, first, as regards staff members subject to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), in view of the nature of the staff report, which expresses the opinion freely drawn up of the reporting officers and not the assessment by the appointing authority, the making of a formal complaint under Article 90 does not appear to be a necessary pre-condition to bringing an action (judgment of 3 July 1980, Grassi v Council, 6/79 and 97/79, EU:C:1980:178, paragraph 15), secondly, since the appointing authority does not necessarily know the precise situation of each staff member, its review of the reporting officer’s assessments of the staff members reported on may be confined to establishing whether there has been any manifest error (judgment of 10 September 2009, van Arum v Parliament, F‑139/07, EU:F:2009:105, paragraph 56).

60      Whilst it is apparent from the case-law that, under the previous rules relating to appeals brought before the EIB Appeals Committee, that committee was required to carry out a full review of the appraisal reports (judgments of 27 April 2012, De Nicola v EIB, T‑37/10 P, EU:T:2012:205, paragraph 50; of 16 September 2013, De Nicola v EIB, T‑618/11 P, EU:T:2013:479, paragraph 37; and of 18 December 2015, De Nicola v EIB, F‑82/12, EU:F:2015:166, paragraph 50), it should be noted that the wording of the Implementing Rules differs from the former rules on appeals brought before that committee, in particular in so far as they provide that the Director-General of Personnel cannot himself or herself amend the outcome of the performance appraisal.

61      Consequently, having regard to the wording of the Implementing Rules, it must be held that, under the special procedure applicable to appraisal decisions, the Director-General of Personnel has a limited power of review over the outcome of the performance appraisal.

62      The applicant is therefore not justified in maintaining that the Director-General of Personnel failed to have regard to the Implementing Rules by not carrying out a comprehensive review of the decision of the Director-General for Legal Affairs.

63      The first plea in law must therefore be rejected.

(b)    The third plea in law, alleging infringement of the obligation to state reasons and of paragraph 3.4 of the Guidelines

64      The applicant submits that, according to the case-law, appraisal reports must state sufficient reasons to enable the staff member to understand the appraisal and make comments, in particular where the appraisal shows a decline compared with that for the previous year. He states that, according to paragraph 3.4 of the Guidelines, discussion of the performance evaluation between the manager and the staff member must be documented in the performance document. He submits that the EIB failed to fulfil its obligation to state reasons and disregarded the Guidelines.

65      First, the applicant claims that, although he had explained to his manager that his achievements in terms of objectives and competencies should be evaluated as above expectations and that he should have obtained performance mark A, the 2019 Performance Document does not refer to that discussion and does not explain why his manager gave a less favourable assessment.

66      Secondly, the applicant states that the reasoning in the 2019 Performance Document is insufficient to explain why the marks obtained are lower than those for the previous year. The reasoning is based mainly on a peer comparison, which amounts to a failure to state reasons as regards the evaluation of his performance in absolute terms. The statement of reasons is inadequate, given, in particular, that operational objectives similar to those for the previous year were rated less favourably in 2019 without any explanation.

67      The EIB contends that the plea is inadmissible and, in any event, unfounded.

(1)    The admissibility of the plea

68      The EIB contends that the applicant did not raise such an argument at the pre-litigation stage and that that argument is not closely linked to the administrative review, in which the applicant challenged the 2019 Performance Document on the substance and not on procedural grounds. It takes the view that, even though pleas involving matters of public policy constitute an exception to the rule of correspondence, the applicant does not raise a failure to state reasons as such but claims that there was a specific obligation to state reasons, since the 2019 performance evaluation was less favourable than that of the previous year. In doing so, the applicant fails to have regard to the case-law according to which the raising of a plea by the EU judicature of its own motion does not concern the infringement of a specific obligation to state reasons.

69      The applicant disputes that argument.

70      According to case-law applicable by analogy, the rule of correspondence between the administrative review, as provided for in Article 41 of the Staff Regulations I, and the subsequent application requires, on pain of inadmissibility, that a plea raised before the EU judicature has already been raised in the pre-litigation procedure, enabling the competent authority to know the criticisms made by the person concerned against the contested decision. That rule is justified by the aim itself of the pre-litigation procedure, the purpose of which is to permit an amicable settlement of the differences which have arisen between the officials and other staff in question, on the one hand, and the administration, on the other hand. It follows, as is also apparent from settled case-law, that claims submitted before the EU judicature may contain only heads of claim based on the same cause of action as that forming the basis of the application for review, although those heads of claim may be developed before the EU judicature by the submission of pleas in law and arguments which do not necessarily appear in the application for review, but are closely linked to it (see judgment of 15 July 2015, Rouffaud v EEAS, T‑457/14 P, EU:T:2015:495, paragraph 24 and the case-law cited).

71      Furthermore, pleas involving matters of public policy may, by way of exception to the rule of correspondence referred to in paragraph 70 above, be raised for the first time before the EU judicature (judgment of 8 September 2021, AH v Eurofound, T‑630/19, not published, EU:T:2021:538, paragraphs 41 and 45).

72      In the first place, since the plea alleging an inadequate statement of reasons is a matter of public policy, the mere fact that a criticism of that nature was not raised at the stage of the administrative review does not render the third plea in law inadmissible.

73      In the second place, as regards the applicant’s argument based on the obligation to provide an ‘enhanced’ statement of reasons in the event of a less favourable appraisal, it relates to the general obligation to state reasons, compliance with which may also be examined by the Court of its own motion.

74      According to the case-law, it is not for the Court, in the context of its making a finding of its own motion, to examine whether the assessments contained in that appraisal report are less favourable than those in the previous appraisal report (judgment of 5 December 2006, Angelidis v Parliament, T‑424/04, EU:T:2006:376, paragraph 91).

75      However, in the present case, in order to substantiate his argument relating to his appraisal being less favourable, the applicant states that, in 2018, his performance was considered to be above expectations in respect of three of the five objectives, which led to the overall mark ‘Above expectations’ as regards objectives. He states that, in 2019, none of his objectives received the mark ‘Above expectations’ and his overall mark concerning objectives was ‘Meeting expectations’.

76      Therefore, in the light of the explanations provided by the applicant, the Court may examine whether the 2019 Performance Document contains an adequate statement of reasons, without having to consider of its own motion whether the assessments contained in that document are less favourable than those contained in the performance document for the previous year.

77      The plea is therefore admissible, including as regards the argument that the applicant’s appraisal is less favourable than that of the previous year.

(2)    The substance of the plea

78      The purpose of the obligation to state reasons, laid down in particular by Article 41(2)(c) of the Charter of Fundamental Rights of the European Union and by Article 296 TFEU, is to enable the Court to review the legality of adverse decisions and to provide the persons concerned with sufficient information to make it possible to ascertain whether those decisions are well founded or whether they are vitiated by an error allowing their legality to be contested (judgments of 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22, and of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraph 50).

79      It is sufficient, in principle, for the performance document to show the salient features of the services provided by the person concerned in terms of objectives and competencies (see, to that effect and by analogy, order of 23 July 2019, UC v Parliament, C‑196/19 P, not published, EU:C:2019:653, paragraphs 5 and 6, and judgment of 13 September 2011, Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 70 and the case-law cited). The assessors are not obliged to specify in the performance document all the relevant factual and legal elements supporting their appraisal (see, by analogy, judgment of 13 September 2011, Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 66).

80      In order to assess whether a performance document is sufficiently reasoned, it is also necessary to take into account all the information brought to the attention of the staff member concerned, and not only the information appearing in that document (see, by analogy, judgment of 13 September 2011, Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 61).

81      It should be noted that the 2019 Performance Document refers to objectives and competencies, which are accompanied by details of their nature and the relevant indicators. It mentions, in respect of each objective and competency, the assessment of the reporting officer, a general evaluation of the achievement of objectives and demonstration of competencies, as well as the performance profile. It states that, at the mid-year review, the achievement of objectives and demonstration of competencies were considered to be on track. It states, as indicated in paragraph 6 above, that the applicant took on a smaller number of new transactions in order to focus on transversal tasks and provides information on several of those tasks. It contains a comment relating to the applicant’s contribution to the [confidential] transaction and the comment on collaboration.

82      Moreover, as was stated in paragraph 9 above, the Director-General for Legal Affairs considered, in her decision on the application for a ‘Staff – DG’ review, that, taking account of the appraisal relating to his performance within the division, department and DG, the applicant’s managers had not considered that he had had an exceptional year in 2019, as many lawyers in the DG for Legal Affairs had shown a very strong performance. She stated that, even though the applicant had achieved his objectives, progress had been slower than expected with regard to two important objectives ([confidential] and [confidential]) and that the applicant’s workload had to be reduced in other areas in order to enable him to achieve those objectives. She took the view that it was not unusual for colleagues at the applicant’s level of seniority to work on complex transactions, and often on several occasions each year. She noted, in respect of competencies, that other colleagues from his peer group had demonstrated a greater commitment and a greater willingness to take on additional work, and that, in that regard, the applicant had not outperformed his colleagues. She stated that, although the applicant considered that he had had a busy and productive year, other colleagues, even though they were busy, had always been ready to take on some of the new tasks. She took the view that there was no need to change the comment on collaboration, which she regarded as a justified and encouraging follow-up from the assessment of the previous year. In response to the applicant’s argument that he had found that comment surprising, she stated that, in 2018, the Head of Division had encouraged the applicant to focus on the development of collaboration competencies and that the Director of the [confidential] Department had also told him in 2019 that he could still make progress in terms of competencies.

83      In the first place, in so far as the applicant alleges infringement of paragraph 3.4 of the Guidelines, which provides that the discussion on the performance appraisal must be documented in the performance document, it must be held that, first, that discussion is documented, since the 2019 Performance Document mentions that the interview took place on 10 January 2020 and states that the Head of Division and the applicant discussed collaboration. Secondly, the document in question, as specified in the decision of the Director-General for Legal Affairs, makes it possible to understand the reasons why the applicant’s performance, as regards objectives and competencies, was not considered to be above expectations and why the applicant did not obtain performance mark A. As regards objectives, it follows that the applicant took on a smaller number of transactions to enable him to devote himself to his transversal tasks and that, in the context of those transversal tasks, certain projects progressed less quickly than expected, with the result that his workload had to be reduced in other areas to allow him to complete them. As regards competencies, it is apparent that the applicant’s colleagues were more willing to take on a larger share of work.

84      In the second place, it follows from the case-law applicable to officials subject to the Staff Regulations that compliance with the duty to state reasons is especially important where the performance appraisal is less favourable than the previous appraisal (see judgment of 12 June 2002, Mellone v Commission, T‑187/01, EU:T:2002:155, paragraph 27 and the case-law cited).

85      It is true that the Guidelines do not contain any specific requirement to state reasons in the event of a less favourable performance mark than the previous year, or a fortiori in the event of a less favourable assessment relating to a specific objective or competence. From that point of view, they differ from certain internal provisions applicable to officials subject to the Staff Regulations (see, to that effect, judgments of 6 February 1986, Castille v Commission, 173/82, 157/83 and 186/84, EU:C:1986:54, paragraph 27; of 16 July 1992, Della Pietra v Commission, T‑1/91, EU:T:1992:91, paragraph 29; and of 9 March 1999, Hubert v Commission, T‑212/97, EU:T:1999:39, paragraph 76).

86      Nevertheless it is apparent from the Guidelines (pages 9 and 10) that the obligation to state reasons for the performance document is enhanced where the performance of a staff member is considered poor, in the sense that the staff member fails to meet expectations in connection with one or more objectives or competencies. In such a case, the manager must refer in the performance document to his or her comments and actions intended to remedy an inadequate level of performance.

87      However, in the present case, as the applicant’s performance was not considered poor with regard to one or more objectives or competencies, the Guidelines did not impose any particular obligation to state reasons.

88      Furthermore, even if the case-law referred to in paragraph 84 above is applicable by analogy to EIB staff members, although the Guidelines do not lay down a specific obligation to state reasons in the event of a less favourable appraisal, it must be held that the 2019 Performance Document is sufficiently reasoned in that regard.

89      In the 2018 Performance Document, performance concerning objectives was considered to be above expectations. The assessor had stated that, in terms of transactions, the applicant had had a very busy fourth quarter, closing three transactions.

90      By contrast, in the 2019 Performance Document, performance concerning objectives was considered to meet expectations. The Head of Division stated that the applicant had taken on a smaller number of transactions to enable him to concentrate on transversal issues. In addition, the Director-General for Legal Affairs stated that the performance of the applicant’s colleagues had been very strong, that his progress had been slower than expected on two important objectives ([confidential] and [confidential]) and that his workload had to be reduced in order to enable him to achieve those objectives.

91      Such factors are sufficient to understand why the applicant’s appraisal concerning objectives was less favourable than the previous year.

92      It follows from the foregoing that the 2019 Performance Document contains an adequate statement of reasons.

93      The plea must therefore be rejected.

(c)    Sixth plea in law, alleging infringement of the right to be heard

94      The applicant submits that staff members have the right to be heard before the final evaluation of their performance and must be given the opportunity to comment on all the issues raised in their appraisal. He considers that he was not given an opportunity to present his views on all aspects of his managers’ assessment and on his alleged defects before a decision was adopted. He submits that the 2019 Performance Document does not reflect the discussion of 10 January 2020 and was a surprise. The arguments used in relation to him were referred to for the first time in the decision of the Director-General for Legal Affairs.

95      The EIB contends that the plea is manifestly unfounded.

96      The right to be heard, referred to in Article 41(2) of the Charter of Fundamental Rights, guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (judgments of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 87; of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 34; see also, to that effect, judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 47).

97      It is apparent from the documents in the case file that the applicant was heard on several occasions during the performance evaluation procedure.

98      Thus, the applicant was involved in the choice of his objectives, had discussed the evaluation of his performance with his manager at the mid-year discussion and had a discussion with his Head of Division in the 10 January 2020 discussion.

99      In the first place, the applicant submits that, at the 10 January 2020 discussion, he stated that his performance was at level A and set out the reasons for such an assessment. During that discussion, the Head of Division did not raise any objection and stated that promotion to level D could be expected within two years. The 2019 Performance Document does not reflect that discussion and came as a surprise.

100    However, at the 10 January 2020 discussion, the applicant was given an opportunity to make comments on his appraisal with regard to each objective and competency and he also states that he did in fact make known his views.

101    The fact, even if established, that, at the 10 January 2020 discussion, the Head of Division did not raise any objections to the applicant’s claims that he should be awarded the performance mark A, does not call into question the fact that the applicant was sufficiently heard before the adoption of the 2019 Performance Document. In that regard, it should be noted that, according to the Guidelines (pages 12 and 13), the performance mark is awarded following ‘Managerial Reviews (relative assessment)’, which take place after the discussion with the manager. Furthermore, even if the Head of Division had informed the applicant that he could hope to be promoted to level D within a period of two years, the applicant does not explain how such a remark contradicts the 2019 Performance Document, which concerns the performance for the year in question.

102    In the second place, the applicant submits that arguments such as the slower progress than expected of tasks, the reduction in his workload and the lack of commitment and of a willingness to accept an additional workload were mentioned for the first time in the decision of the Director-General for Legal Affairs.

103    However, it is apparent from the decision of the Director-General for Legal Affairs that, in accordance with paragraph 21 of the Implementing Rules, the applicant was received by the Director-General for Legal Affairs on 26 May 2020. It is also apparent from that decision that the applicant had a further conversation with the Director-General for Legal Affairs on 25 June 2020.

104    In the context of the request for a ‘Staff – DG’ review, the applicant was therefore able, in both writing and orally, to submit his observations on the 2019 Performance Document and on the performance mark awarded following the management review.

105    The arguments in the Director-General for Legal Affair’s decision, referred to in paragraph 102 above, are clarifications in response to the arguments raised by the applicant in the request for a ‘Staff – DG’ review. They are consistent with the appraisal of objectives and competencies set out in the 2019 Performance Document, in particular with the appraisal ‘Meets expectations’ with regard to the ‘[confidential]’ and ‘[confidential] [Legal Service]’ objectives. Moreover, those arguments are made in a factual context known to the applicant, since he acknowledges that he encountered difficulties and that he had to discuss them with his manager in October 2019.

106    It should also be noted that the circumstances of the present case differ from those at issue in the case which gave rise to the judgment of 8 March 2011, De Nicola v EIB (F‑59/09, EU:F:2011:19, paragraphs 178 to 181). In the present case, it is not apparent from the documents before the Court that the 10 January 2020 discussion was very short, or that the applicant was unable to obtain specific information, before that discussion, on the objectives set for him, or even that the applicant made known his opposition to the objectives assigned during that discussion.

107    In any event, according to settled case-law, an infringement of the right to be heard, results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 105 and the case-law cited).

108    In the present case, it is not apparent from the documents in the case file that the outcome of the procedure might have been different if the Head of Division had informed the applicant, at the 10 January 2020 discussion, that he was likely to be awarded mark B rather than performance mark A, or if the Director-General for Legal Affairs had invited the applicant formally to submit his observations on the arguments referred to in paragraph 102 above before adopting her decision on the request for a ‘Staff – DG’ review. Moreover, the applicant does not allege this.

109    The plea must therefore be rejected.

(d)    The second plea in law, alleging that there was no absolute evaluation of the applicant’s performance

110    The applicant submits that, according to the Guidelines, the evaluation of a member of staff’s performance is divided into two successive stages: first, an evaluation of the staff member’s performance in absolute terms, which is performed by the manager, and, secondly, a managerial review, which takes place in each DG and is based on a peer comparison. The relative evaluation takes place after the absolute evaluation.

111    The applicant considers that the evaluation of objectives and competencies, included under the headings ‘Objectives’, ‘Competencies’ and ‘Year-End Evaluation’ in the 2019 Performance Document, is absolute and individual. By contrast, the proposal of a performance profile, with, for staff already working on 30 June 2013, a performance mark and possible reward recommendations linked to the performance evaluation (salary increase and performance awards) and any promotion proposals, are covered by the relative performance evaluation.

112    The applicant submits that it is apparent from the contested decisions that the evaluation of the achievement of objectives and of his competencies was carried out in relative terms and not in absolute terms, which constitutes an infringement of the Guidelines. The applicant was penalised by the comparison of his achievements with those of his peers. The evaluation concerning objectives and competencies is therefore unlawful, which also affects his performance profile and the rewards corresponding to the evaluation of that profile.

113    The EIB contends that this plea, assuming it to be admissible, is unfounded.

114    As a preliminary point, the EIB doubts whether the second plea complies with the rule of correspondence between the complaint and the application, as defined by the case-law. It is for the applicant to demonstrate the existence of a close link between the pleas in the complaint and those in an action before the Court. The second plea is entirely new in relation to the administrative review.

115    The applicant submits that the plea is admissible. He states that, in his administrative review, he criticised the fact that the absolute evaluation did not comply with the Guidelines, both from a procedural and substantive point of view. In the present action, he develops that same head of claim with pleas and arguments which are closely linked to it.

116    In the present case, the applicant has not maintained, in his request for an administrative review, that his evaluation had not been carried out in absolute terms.

117    It is true that it is apparent from the request for an administrative review that the applicant requested a review independent of the outcome of his performance evaluation, including an assessment of the way in which the requirements of an objective, fair and transparent performance evaluation, as incorporated in the Guidelines, have been complied with (paragraph 2). It is also apparent that the applicant put forward an argument to the effect that the absolute evaluation of his performance concerning objectives and competencies had not been conducted in a fair and objective manner (paragraph 3(C)).

118    However, even if the administrative review is examined with an open mind, the second plea cannot be regarded as closely related to the criticisms put forward in the administrative action, in particular the criticism relating to the unfair and subjective nature of the absolute evaluation of the applicant’s objectives and competencies. By that criticism, the applicant challenged the way in which that absolute evaluation had been conducted without ever considering either expressly or by implication that that evaluation had not been made. Although the applicant refers, in the request for administrative review, to the Guidelines, it is not in order to attempt to show that no absolute evaluation had been conducted.

119    That conclusion is borne out by the fact that, in the decision rejecting the administrative review, the EIB did not rule on whether an absolute evaluation had been conducted.

120    Consequently, in accordance with the case-law referred to in paragraph 70 above, the second plea in law must be rejected as inadmissible.

(e)    Fourth plea in law, alleging manifest error of assessment, lack of appropriate evaluation of the applicant’s absolute performance, breach of the duty of sound administration and of the duty to have regard for the welfare of officials, and breach of the Guidelines

121    The applicant submits his manager’s evaluation, confirmed by the Director-General for Legal Affairs and the Director-General of Personnel, failed to take into account all the relevant factors and is vitiated by manifest errors. He submits that he should at least have received the B+ performance mark.

122    As regards the evaluation of objectives, the applicant submits, in the first place, that he was allocated a much higher than average number of objectives and that his additional work was not taken into account. He submits, in the second place, that, as regards the evaluation of each of the objectives, he manifestly exceeded expectations in terms of quality and quantity and that, as regards timeliness, the EIB made a manifest error of assessment in taking the view that his tasks had advanced more slowly than expected with regard to two important objectives.

123    As regards competencies, the applicant takes the view that his appraisal should have led to the award of the mark ‘Above expectations’. He states that linking the competence ‘Commitment to the organisation’ solely to the criterion of willingness to accept additional work is incorrect, that he worked on a greater number of projects than his peers and that he agreed to take on work from another unit. As regards the ‘Collaboration’ competency, the comment on collaboration is misleading, liable to be misinterpreted, factually incorrect, inconsistent and unfair.

124    The EIB contends that the plea should be rejected.

125    According to the case-law, reporting officers have the widest discretion when judging the work of persons upon whom they must report and it is not for the Court to interfere with that assessment save in the case of manifest error (judgments of 1 June 1983, Seton v Commission, 36/81, 37/81 and 218/81, EU:C:1983:152, paragraph 23, and of 15 April 2021, FV v Council, C‑875/19 P, not published, EU:C:2021:283, paragraph 65).

126    An error may be classified as manifest only where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended the administration’s exercise of its discretion to be subject. In order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken on the basis of that assessment, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible (see judgment of 24 September 2019, US v ECB, T‑780/17, not published, EU:T:2019:678, paragraph 61 and the case-law cited).

127    The Guidelines state that during the management review, which is intended to ensure a comparison among peers, three performance profiles may be proposed: ‘Top-Performer’ (10% of staff), ‘Performing’ and ‘Under-Performing’ (page 12). They state that, in addition to the performance profile, staff subject to Staff Regulations I receive a performance mark on a five-point scale. ‘Top-Performer’ profiles correspond to an A mark. Around one third of staff with a ‘Performing’ profile receive the mark B+. The majority of staff receive a B mark and some receive a C mark, where performance is generally satisfactory, but there are areas for improvement or performance is below average. The ‘Under-Performing’ profiles receive the D mark (page 13).

(1)    The objectives

128    In the first place, as regards the quantitative evaluation of the objectives considered as a whole, the applicant submits that the number of objectives set was far higher than the average. He considers that the fact that he himself proposed his objectives is irrelevant, since those objectives were validated by his manager. The Director-General of Personnel is not competent to decide on the relevance and structure of those objectives. In any event, the applicant claims that, among his colleagues who received a similar combination of policy and transaction objectives, he had the highest number of objectives. Furthermore, in his view, contrary to the requirements of the Guidelines, the evaluation did not take into account the additional work that he carried out in relation to the defined objectives, in particular his active participation in around 20 projects.

129    In that regard, while it is common ground that the number of objectives set for the applicant for 2019 was above average, as the applicant had been set nine objectives and the Guidelines provide that ‘the number of individual objectives … is generally expected to be between 3 and 7 objectives to be set depending on [the] role’, the Director-General for Legal Affairs stated that the number of objectives was not in itself an indicator of top performance. She stated that one of the reasons why the applicant had so many objectives was that he had himself proposed several of those objectives and that his post, combining both transactional work and transversal tasks, included a greater variety of tasks than that of other colleagues.

130    Furthermore, the Director-General of Personnel stated that the number of objectives taken into account for the applicant’s performance appraisal should be placed in context. She stated that two objectives were linked to compulsory training and did not consist of more than four hours of work per year. She stated that, for other staff members, those two objectives were grouped into a single objective. She added that two other objectives, linked to presentations to newcomers in the Legal Service, on the one hand, and the Transaction Management and Restructuring DG, on the other hand, did not entail a significant amount of work and could have been grouped into a single objective. She noted that the two objectives ‘Legal Advice on [confidential] transactions’ and ‘Processes and Procedures [Legal Service – [confidential]’ were objectives that every staff member in the applicant’s division had to achieve.

131    In that regard, the applicant does not dispute that the number of objectives was linked to the nature of his post, which, combining transversal and transactional work, was more varied than that of his colleagues. Nor does he dispute that, of nine objectives, two resulted in very few working hours and two others did not entail a significant amount of work.

132    Although the applicant submits that the Director-General of Personnel is not competent to decide on the relevance and structure of those objectives, the fact remains that she could assess his performance taking into account the nature of his post and the amount of work entailed by each objective.

133    Furthermore, in so far as the applicant submits that, contrary to the requirements of the Guidelines, his performance appraisal did not take into account the additional work he carried out in relation to objectives, in particular his participation in approximately 20 projects, it should be borne in mind that, according to the case-law, it is sufficient, in principle, for the performance document to show the salient features of the performance of the person concerned in terms of objectives and competencies, in accordance with the case-law referred to in paragraph 79 above.

134    It is also apparent from the Guidelines (page 11), which state that performance ‘may’ be assessed in terms of certain criteria and that the manager takes into account ‘other relevant factors, for example …’, that the relevant criteria and factors provided for in the Guidelines, including the willingness to accept additional work, constitute an indicative list that the manager may take into account in the evaluation.

135    Furthermore, the performance document nonetheless refers to a task described by the applicant as additional to his objectives, namely the ‘[confidential]’ task. It also refers, moreover, to the representation of the [confidential] Department of the Legal Service at the [confidential] working group and the carrying out of various training courses and presentations, such as the [confidential] presentation.

136    Consequently, the high number of objectives set for the applicant and his participation in additional projects do not show either that the applicant had a far higher than average performance or that all the relevant factors were not taken into account in the evaluation of his performance.

137    In the second place, as regards the evaluation of each of the objectives, the applicant considers that he manifestly exceeded expectations in terms of quality and quantity. He maintains that he performed duties which, according to the descriptions of the reference duties, are superior to those expected of a staff member function E and fall within those of a staff member function D. As regards timeliness, he submits that the EIB made a manifest error of assessment in considering that his tasks had progressed more slowly than expected on two important objectives and that his workload had to be reduced in other areas in order to enable him to achieve those two objectives.

138    However, in the first place, as regards the objective of ‘Legal advice on [confidential] transactions’, measured in the light of ‘quality and timeliness of legal advice, number of transactions completed (taking into account proportion of time spent on transversal/relational/or other matters)’, the Head of Division stated that the applicant had assumed a smaller number of new transactions to enable him to give priority to transversal issues and that, as regards the [confidential] transaction, the applicant had made a useful contribution and had been instrumental in finding a solution.

139    The applicant emphasises the complexity of the [confidential] transaction and the decisive role that he played in the design and implementation of an innovative solution. In view of the fact that he spent 13% of his time on new transactions, those which he carried out in 2019 corresponded to at least 15 transactions, which should lead to him being awarded performance mark A.

140    Nevertheless, it is apparent from the applicant’s statements that he finalised only two transactions in 2019, which is much lower than the average number of eight transactions signed by a lawyer. Furthermore, the applicant did not dispute the view of the Director-General for Legal Affairs that it is not unusual for lawyers of his seniority to deal with one or more complex transactions each year. Nor did he claim that the other transaction that he finalised in 2019 was complex and fell within function level D.

141    In the second place, as regards the relational objective ‘Training [DG Transaction Management and Restructuring]’, which consists of ‘preparing and providing training on [confidential] [to the divisions of that DG]’, the fact that the applicant has a ‘good knowledge’ of [confidential], as is required of a staff member function D, does not show that his results manifestly exceeded standards or expectations in terms of quality, quantity or deadlines.

142    As regards the ‘[confidential]’ objective, namely ‘lead and coordinate the Bank-wide and legal service working group on [confidential]’, with the indicator ‘Finalisation of the annual review’, the Head of Division stated that that task included finalising a new publication of [confidential] in March 2019 and work on comments received during 2019. The Director-General for Legal Affairs stated that progress had been slower than expected in relation to that objective and that the workload had to be reduced in other areas in order to enable the applicant to achieve it.

143    Although the applicant claimed, in response to the decision of the Director-General for Legal Affairs, that his objectives were set for the calendar year, that he achieved his objective on 31 December 2019 and that his manager did not inform him that his work was progressing more slowly than expected, he nevertheless acknowledges that he encountered difficulties and that he had to discuss them with his manager in October 2019 in order to find solutions to overcome those difficulties.

144    As regards the objective ‘Working Group … [confidential]’, which was to represent the [confidential] Department of the Legal Service within that working group, the expectation being ‘at least 75% participation rate at the … meetings and [finalisation] of … wording’, the applicant claims that he exceeded that objective in terms of quantity, since he attended 100% of the working group meetings, and, in terms of quality, since he represented the Legal Service in internal committees and maintained relationships with peers in other international financial institutions, in accordance with the D-level job description.

145    However, in view of the fact that it is not apparent from the documents in the case file that 100% participation in working group meetings corresponds to a particularly strong performance and that the fact of representing the [confidential] Department of the Legal Service corresponds to the objective itself, the applicant does not put forward any information as to quantity, quality or deadlines of such importance that it renders implausible the rating concerning that objective.

146    As regards the transversal objective ‘[confidential] Manual [of the Legal Service]’, consisting of leading the working group on updating the manual, with the objective ‘finalise the … update’, the Head of Division stated, in the 2019 Performance Document, that that manual was now ready to be approved by the management. The Director-General for Legal Affairs stated that progress had been slower than expected in relation to that objective.

147    The applicant states that, as regards the transversal objective in question, his performance was described as above expectations in the previous year and that the [confidential] manual covered new areas for the first time in 2019 as a result of the involvement of a greater number of contributors. He relies on the fact that he developed a constructive relationship with a peer in another institution, in accordance with the expected activities of a function D staff member.

148    However, although the applicant submits that he completed his task in November 2019, that is to say, within the 31 December 2019 deadline, the fact remains that the final approval of the [confidential] manual was given only in February 2020. The applicant acknowledges that he encountered difficulties and that he had to discuss them with his manager in October 2019. Although he considers that those difficulties were linked to his excessive workload and that he showed professionalism by discussing them with his manager, he does not dispute the difficulties he encountered in complying with the deadlines set.

149    As regards the ‘Legal Service Newcomers Training’ objective, which entails preparing and providing training for new entrants on the [confidential] manual, the indicator being the conduct of the training, the applicant states that, in addition to the training proper, his work went beyond expectations, since he provided guidance for new entrants, often lawyers.

150    However, such an assertion, which, moreover, does not appear to relate to training in the strict sense, does not permit the inference that the assessment of the reporting officer is implausible.

151    Consequently, in the light, in particular, of the number of transactions finalised by the applicant, the fact that certain transversal tasks did not progress as rapidly as expected, the fact that his workload had to be reduced in certain areas and the very strong performance of the other lawyers, the general assessment of the reporting officer that the applicant’s performance in terms of objectives meets expectations is not implausible.

(2)    Competencies

152    The applicant considers, in respect of competencies, that his evaluation should have led to the award of the mark ‘Above expectations’. He claims to have shared his knowledge, shown himself to be constructive and available and to have promoted the reputation of his colleagues.

153    The applicant states that linking the ‘Commitment to the organisation’ competence solely to the criterion relating to the willingness to accept additional work, as the Director-General for Legal Affairs did, is erroneous. Such a criterion, in so far as it was based on overtime worked, infringed the Guidelines. The applicant states that he successfully completed two new transactions in 2019 by devoting 13% of his working time to those transactions.

154    The applicant states that the comment on collaboration is misleading, subject to misinterpretation, factually incorrect, inconsistent and unfair. It cannot be interpreted as an improvement in the situation compared to the previous year, given, in particular, that the annual appraisal exercise does not allow for references to be made to past performance appraisal outcomes. The applicant adds that, in 2020, his collaboration skills were praised by his new manager following his change of division.

155    However, the Director-General for Legal Affairs considered that, according to the applicant’s manager’s assessment, other colleagues in his peer group had shown a greater commitment and greater willingness to take on more work and that, in that regard, the applicant had not outperformed his colleagues in those specific competencies. She stated that other colleagues, even when busy, had still been prepared to accept additional work.

156    In so doing, the Director-General for Legal Affairs did not disregard the Guidelines, according to which the number of hours worked is not a standalone criterion for evaluating performance (page 11), since she did not rely on the number of hours worked, but took account of the willingness to accept more work. Furthermore, the evidence adduced by the applicant does not permit the inference to be drawn that, in relying on that element, the Director-General committed a manifest error in the evaluation of the ‘Commitment to the organisation competency. Nor does that evidence demonstrate that, since he worked on a greater number of projects than his peers and agreed to work from another unit, he clearly exceeded expectations in terms of competencies.

157    As regards the ‘Collaboration …: Values others’ input’ competency, the Head of Division considered that the applicant’s performance met expectations. He stated that he noted the applicant’s efforts to improve that competence, which were bearing fruit.

158    Contrary to what the applicant claims, the comment on collaboration is sufficiently clear and, in so far as it refers to his successful efforts in that regard, consistent with the rating ‘Meets expectations’. Furthermore, as the Director-General for Legal Affairs stated in the 2018 Performance Document, the reporting officer encouraged the applicant to continue to focus on developing the collaboration competence. The Director-General also mentioned that, in 2019, the Director of the [confidential] Department told her that the applicant could still make progress in terms of competencies, which the applicant does not, moreover, dispute and which tends to show that the comment on collaboration is not vitiated by an error of fact.

159    If an assessment such as the comment on collaboration has to relate to the performance as demonstrated during the year under evaluation, namely 2019, that is the case here. By stating that that comment was an encouraging follow-up to the assessment of the previous year, which consisted specifically in a request to take action, the Director-General for Legal Affairs did not assess the applicant’s performance on the basis of his performance in 2018.

160    Consequently, despite the positive assessment made in 2020 by the applicant’s new manager of his collaboration competence, the assessments relating to the applicant’s competencies referred to in the contested decisions are not implausible.

161    In those circumstances, in view of what has been stated in paragraph 151 above with regard to objectives, the EIB did not commit a manifest error of assessment as regards the applicant’s performance profile and performance mark, the applicant having acknowledged, moreover, in the administrative review, that he had not had an exceptional year in 2019.

162    It follows from the foregoing that the plea must be rejected.

(f)    Fifth plea in law, alleging infringement of the obligation to state reasons and manifest error of assessment as regards the absence of promotion to function D

163    The applicant maintains that he fulfils all the criteria for promotion, as laid down in the Guidelines. In addition, he submits that the EIB did not state the reasons for its decision not to promote him. The general and abstract statement of reasons provided by the EIB does not make it possible to understand the reasons why he was not promoted.

164    The EIB contends that the plea is manifestly unfounded.

165    It is necessary to examine the complaint alleging a failure to state reasons for the absence of promotion to function D, then the complaint alleging a manifest error of assessment vitiating that absence of promotion.

166    In the first place, Article 23 of the Staff Regulations I provides that ‘promotions shall be achieved by the assumption of a higher Function’ and that ‘they shall be decided on the basis of professional merit’.

167    Paragraph 3.4 of the Guidelines, entitled ‘Evaluating performance at year-end’ (pages 12 and 13), states that the manager may give recommendations as to whether a staff member should be considered for promotion. They state that the ratings of objectives and competencies and the performance profiles serve as a basis for promotion proposals.

168    Paragraph 5 of the Guidelines, entitled ‘Promotion linked to Performance Evaluation’, states that a staff member may be promoted to a higher function level at the year-end in the context of the performance evaluation exercise if he or she has performed well in respect of his or her current duties, has the ability or potential to perform at a higher level, if he or she has demonstrated his or her motivation to work at a higher level and if there is a need for an employee at a higher function level in his or her team. They also state that promotion during the annual performance evaluation exercise is subject to eligibility criteria.

169    In the present case, the Director-General of Personnel stated that the administration enjoys a wide discretion with regard to decisions on promotion and drew attention to the content of paragraph 5 of the Guidelines. She considered that promotion to a higher level was a matter of merit, that promotion rewarded sustained good performance and demonstrated ability, potential and motivation to take on higher responsibilities and that it was contingent upon the existence of a need for an employee at a higher level within the team. She took the view that, since the EIB had not erred in finding that the applicant’s performance in terms of objectives and competencies met and did not exceed expectations in 2019, it did not err in deciding not to promote the applicant.

170    The grounds of the decision of the Director-General of Personnel make it possible to understand that the absence of promotion of the applicant to function D results from the fact that the EIB considered that his performance in 2019 did not exceed expectations.

171    Although the applicant submits that the decision of the Director-General for Legal Affairs does not state reasons as regards the absence of promotion to level D, it should be noted that, in the request for a ‘Staff – DG’ review, the applicant requested the Director-General for Legal Affairs to ‘consider’ his promotion to a higher level only if ‘for procedural or budgetary reasons’ an individual award could not be given to him. In view of the conditions placed by the applicant on his request, namely the existence of procedural or budgetary reasons preventing him from being granted an individual award, the applicant is not justified in complaining that the Director-General, who decided to confirm the 2019 Performance Document and did not put forward any such reasons, did not provide further details as regards his promotion.

172    Moreover, as the Director-General of Personnel stated, with sufficient clarity, that the absence of promotion of the applicant was based on the fact that his performance for 2019 was not above expectations, the applicant is not justified in claiming that that statement of reasons is general and abstract.

173    The complaint that the decision not to promote the applicant is vitiated by a failure to state reasons must therefore be rejected.

174    In the second place, in assessing the merits of a staff member in the context of promotion linked to the performance appraisal, as provided for in Article 23 of the Staff Regulations I and paragraph 5 of the Guidelines, the President of the EIB has a wide discretion and, in that context, review by the EU judicature must be confined to the question whether, having regard to the various considerations which may have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way (see, by analogy, judgment of 3 April 2003, Parliament v Samper, C‑277/01 P, EU:C:2003:196, paragraph 35).

175    In support of his argument that the EIB made a manifest error of assessment in deciding not to promote him, the applicant submits that he fulfils the criteria for promotion, since his performance in his current post is good, he has the ability and potential to work at a higher level and he has continuously exercised responsibilities at a higher level than those relating to function E.

176    However, it is apparent from the contested decisions that the applicant’s performance, for which he obtained performance mark B, was considered to meet expectations, but did not exceed expectations in 2019. It is also apparent that, by contrast, other lawyers in the DG for Legal Affairs showed a very strong performance in 2019.

177    In those circumstances, the evidence put forward by the applicant does not support the conclusion that the EIB made a manifest error of assessment in deciding not to promote him at the end of the performance appraisal exercise.

178    The plea must therefore be rejected and, consequently, the claim for annulment must be rejected.

B.      Claims for compensation

179    Under the heading ‘Prejudice’, the applicant submits that annulment of the 2019 Performance Document entails a review by the EIB of his performance, rewards and promotion. He states that, if the Court considers that such a review is impossible, he seeks compensation for material damage resulting from the loss of the opportunity to be awarded performance mark B+ or A, the salary increase linked to that award, an individual award corresponding to a higher performance and promotion to function D.

180    In addition, the applicant claims that he suffered non-material damage, since the 2019 Performance Document and the lack of adequate reward were based on a negative and manifestly incorrect assessment of his performance and he was not properly heard or given adequate reasons, which left him in a situation of uncertainty. Annulment of the 2019 Performance Document would not be sufficient to make good the damage caused to his dignity and self-esteem and the anxiety suffered. That non-material damage is assessed ex aequo et bono at EUR 5 000.

181    The EIB disputes the applicant’s arguments.

182    According to settled case-law, claims for compensation for material or non-material damage must be rejected where they are closely linked with claims for annulment which have themselves been dismissed as inadmissible or unfounded (judgments of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 129; of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 51; and of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 93).

183    In the present case, it follows unambiguously from the application that the claim for compensation is closely linked with the claim for annulment. The applicant states, moreover, that his claim for compensation for material damage is submitted in the event that the Court should, after annulling the 2019 Performance Document, find that the EIB cannot review his situation. As regards the non-material damage, he states that this is the result of unlawful conduct, namely the existence of a manifest error of assessment, infringement of the right to be heard and breach of the obligation to state reasons, which correspond to the pleas in law which he raised in support of his claim for annulment.

184    Consequently, since the claim for annulment has been dismissed by the Court, the same applies to the claim for damages and, consequently, to the action in its entirety.

 Costs

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

186    Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by EIB.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders SV to pay the costs.

Delivered in open court in Luxembourg on 5 October 2022.

*      Language of the case: English.

1 Confidential data redacted.

© European Union
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