“22 It is settled case-law that, in view of the nature of the appraisal report provided for in Article 43 of the Staff Regulations, which expresses the opinions freely drawn up by reporting officers, and not the appointing authority’s assessment, the lodging of a formal complaint, within the meaning of Article 90 of the Staff Regulations, is not a necessary precondition for bringing an action against such a measure. An action against the appraisal report therefore lies as from the date on which that report can be regarded as final (judgments of 3 July 1980, Grassi v Council, 6/79 and 97/79, EU:C:1980:178, paragraph 15, and of 23 September 2020, VE v ESMA, T 77/18 and T 567/18, not published, EU:T:2020:420, paragraph 47).
23 In the present case, it is common ground between the parties that the contested report is final. It is apparent from the file that the applicant did not refuse to accept that report within five working days from the date on which she was invited to consult it, in accordance with the second subparagraph of Article 6(8) of GIP 43.
24 EUIPO nevertheless wonders whether the case-law referred to in paragraph 22 above is applicable in a situation such as that in the present case, in which the applicant decided not to use the internal appeal procedure provided for in GIP 43, which was however open to her.
25 The first paragraph of Article 43 of the Staff Regulations, which applies to temporary staff pursuant to Article 15(2) of the CEOS, provides:
‘The appointing authority of each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before the lodging of a complaint as referred to in Article 90(2).’
26 As has already been held and contrary to what EUIPO essentially contends, by providing that the internal appeal must be exercised prior to the lodging of a complaint, the Council, the author of the Staff Regulations, did not intend to add a new condition of admissibility of complaints to those laid down in Article 90(2) of the Staff Regulations, but only to specify at what stage of the pre-litigation procedure the internal appeal had to be submitted, failing which it would be inadmissible (judgment of 18 May 2009, Meister v OHIM, F 138/06 and F 37/08, EU:F:2009:48, paragraph 139).
27 Since the complaint is not a necessary precondition for bringing legal proceedings (see paragraph 22 above), it cannot a fortiori be considered that the Council thus impliedly intended to make the admissibility of such an action subject to the lodging of an internal appeal.
28 Nor can such an obligation be inferred from the wording of GIP 43, which EUIPO applies by analogy in order to implement Article 43 of the Staff Regulations, in accordance with the second subparagraph of Article 110(2) of those regulations. The relevant provisions of GIP 43 do not even refer to the action which the person concerned might bring before the Court. Article 7 of GIP 43 provides as follows:
‘1. The jobholder’s reasoned refusal … shall automatically mean referral of the matter to the appeal assessor. …

3. Within 20 working days of the date of the reasoned refusal to accept the report and following the dialogue provided for in paragraph 2, the appeal assessor shall confirm the report or amend it, giving reasons.

4. The report shall become final by decision of the appeal assessor. …’
29 Nor do the considerations relating to procedural efficiency and justifications underlying the case-law referred to in paragraph 22 above, on which EUIPO relies in its written pleadings, make it possible to impose such an obligation on the party concerned. First, to interpret GIP 43 as rendering the admissibility of a legal action subject to an obligation of that kind would have the effect of restricting the right under the Staff Regulations referred to in paragraph 22 above to challenge an appraisal report before the Court without first exhausting internal procedures (see, to that effect, judgments of 1 December 1994, Schneider v Commission, T 54/92, EU:T:1994:283, paragraph 22, and of 18 May 2009, Meister v OHIM, F 138/06 and F 37/08, EU:F:2009:48, paragraph 140), thus contravening the principle that the institutions have no power to derogate from a right under the Staff Regulations by means of an implementing provision (see, to that effect, judgment of 4 May 2005, Castets v Commission, T 398/03, EU:T:2005:159, paragraph 32).
30 Secondly, it amounts to rendering the applicant’s fundamental right to an effective remedy and access to an independent tribunal subject to a condition which is not apparent from the applicable legislation or from foreseeable and accessible case-law and, therefore, infringes Article 47 and Article 52(1) of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 3 July 2019, PT v EIB, T 573/16, EU:T:2019:481, paragraph 135 (not published)).
31 The interpretation of GIP 43 proposed by EUIPO must therefore be rejected. It follows that the present plea of inadmissibility must be rejected, without there being any need to examine the applicant’s argument that EUIPO’s application of GIP 43 is contrary to Article 110 of the Staff Regulations.”