26 Oct '22

T-298/20: Civil service- Legal value of Reporting Officer’s Practical dossier – Health problems and duty of care

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“67 Although the Reporting Officer’s Practical Dossier states that it has no legal value, it is clear from the wording of the instruction in question that it is indeed a mandatory rule and not mere advice for assessors or an option the exercise of which is left entirely to their discretion….
125 It must therefore be held that the applicant’s health problems persisted during the period in question and that EUIPO was aware of them. The latter was therefore subject to substantially enhanced obligations under the duty of care and therefore had to take due account of the applicant’s health problems with a view to the adoption of the contested report.
126 However, the contested report does not contain the slightest reference to those problems, which EUIPO, moreover, did not in any way dispute before the Court. Nor has EUIPO demonstrated that it took account of those problems in any way in the appraisal procedure.
127 In the statement in defence, EUIPO defended itself by invoking the optional nature of the increase in appraisals given to an official for performance in such a way as to take into account the conditions in which he or she performed his or her duties in spite of having had less actual working time owing to absences on the ground of sickness. At the hearing, it even argued that the taking into account of such absences in an appraisal report had been ‘repeatedly invalidated by the European Court of Justice’.
128 It must, however, be observed that the applicant does not take issue with EUIPO for failing to take into account her absences owing to sickness or the fact that she had less actual working time as a result. She alleges that it failed to take account of her state of health in general.
129 The applicant is therefore justified in claiming that EUIPO did not give the required consideration to her health problems in the contested report and, consequently, breached the duty of care. The present plea must, as a result, be upheld inasmuch as it concerns those problems, without there being any need to take into account Annex C.1. It must be dismissed as to the remainder.”