Orders nº T-617/18 of Tribunal General de la Unión Europea, September 16, 2019

• Resolution Date: September 16, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-617/18

(Civil service - Members of the temporary staff - 2016 staff report - Sick leave - Claim for compensation - Complaint brought after expiry of the three-month period prescribed by Article 90(2) of the Staff Regulations - Force majeure - Excusable error - Manifest inadmissibility)

In Case T-617/18,

ZH, represented by L. Levi and N. Flandin, lawyers,

applicant,

v

European Chemicals Agency (ECHA), represented by M. Heikkilä, T. Zbihlej and C.-M. Bergerat, acting as Agents, and by A. Duron, lawyer,

defendant,

APPLICATION pursuant to Article 270 TFEU seeking, first, annulment of the applicant’s 2016 staff report and, second, compensation for the non-material damage which she claims to have suffered,

THE GENERAL COURT (Sixth Chamber),

composed of S. Papasavvas, acting as President, Z. Csehi and O. Spineanu-Matei (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 From 1 November 2008 until 31 October 2018, the applicant, ZH, performed duties as a scientific administrator at the European Chemicals Agency (ECHA). Since she was recruited as a member of the temporary staff under Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), she received an initial contract of 5 years, which was subsequently renewed until 31 October 2018. The applicant was classified at grade AD 9 from 2011.

2 On 16 January 2017, the 2016 appraisal exercise was launched by ECHA. The applicant submitted her self-assessment on 26 January 2017.

3 The applicant then participated in two interviews, the first of which took place on 17 February 2017 with her reporting officer and the second of which took place at the applicant’s request on 17 March 2017 with her reporting officer and the appeal assessor.

4 By email of 29 March 2017, the human resources department of ECHA informed the applicant that, first, her 2016 staff report had become final as a result of the appeal assessor’s review (‘the contested staff report’) and, second, that she was entitled to challenge that report by means of a complaint within 3 months, in accordance with Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

5 In reply to an email of the same day from the applicant, the appeal assessor confirmed to the applicant the circumstances set out in paragraph 4 above. On that same day, the applicant replied to the appeal assessor that she would consider the situation and then decide what she wished to do.

6 From 31 March 2017 until 9 April 2017, the applicant was absent from work because of sickness. From 12 April 2017, she was on uninterrupted sick leave until the end of her contract.

7 On 17 April 2018, through her legal counsel, the applicant lodged a complaint against the contested staff report. In that complaint she asserted that, because of her health conditions, she had not been able previously to assert her rights under the Staff Regulations. In her view, the fact of being unable to do so for medical reasons implied that the period laid down in Article 90(2) of the Staff Regulations could not have started to run or have expired. As regards the substance, the applicant put forward a number of arguments alleging (i) infringement of the procedure which led to the adoption of the contested staff report, (ii) failures in the assessment of some of her tasks, (iii) manifest errors of assessment committed by ECHA, and (vi) breach of the obligation to state reasons on the part of the latter, which, according to the applicant, ought to have led to the annulment of the contested staff report.

8 By decision of 2 July 2018, the Executive Director of ECHA, acting as the authority empowered to conclude contracts of employment, rejected the complaint, finding that it was manifestly inadmissible (‘the decision rejecting the complaint’). The applicant became aware of the decision rejecting the complaint on 3 July 2018.

Procedure and forms of order sought

9 By application lodged at the Registry of the General Court on 12 October 2018, the applicant brought the present action.

10 On 15 February 2019, the applicant submitted a request for a hearing.

11 As a member of the Sixth Chamber was unable to sit, the President of the General Court designated another Judge in order to attain the quorum necessary to give judgment.

12 The applicant claims that the Court should:

- annul the contested staff report;

- also annul, to the extent necessary, the decision rejecting the complaint;

- order that...