Generation 2004 has recently been receiving a number of cases raising a particularly troubling question: what happens when a Head of Unit or reporting officer who is allegedly harassing a member of staff is also responsible for writing that person’s appraisal report? This is not simply a question of whether the appraisal is fair. It raises a more fundamental issue: can the person responsible for assessing a staff member objectively evaluate someone who has accused them of harassment?
A judgment of the General Court delivered on 4 December 2024, Colombani v EEAS (T-158/23), is particularly relevant to this situation. The Court annulled an official’s appraisal report because, when the appraisal was carried out, his reporting officer was the subject of an ongoing administrative investigation into allegations of psychological harassment made by the official himself. The judgment provides an important reminder that staff do not necessarily have to prove that a reporting officer was actually biased. In certain circumstances, legitimate doubts about impartiality may be sufficient.
The facts of the case
The applicant had submitted a request for assistance under Article 24 of the staff regulations, alleging psychological harassment involving several people, including his immediate superior. Following that request, the EEAS considered that there was sufficient prima facie evidence to justify opening an administrative investigation into the allegations.
The problem arose during the annual appraisal procedure. While the administrative investigation concerning the immediate superior was still ongoing, that same superior remained responsible for assessing the applicant. The appraisal report was completed before the investigation had been concluded. Although the investigation was subsequently closed without further action against the reporting officer, this did not change the Court’s assessment of the appraisal. The decisive question was the situation at the time when the appraisal was carried out: at that moment, the reporting officer was still the subject of an ongoing administrative investigation resulting from allegations made by the very person whose performance he was assessing.
You do not have to prove actual bias
This is one of the most important aspects of the judgment. The applicant did not need to prove that his reporting officer had deliberately allowed personal hostility or prejudice to influence the appraisal. The principle of impartiality also has an objective dimension, meaning that the question is not limited to what the reporting officer was actually thinking. The administration must also ensure that the circumstances surrounding the procedure do not give rise to legitimate doubts about the impartiality of the person responsible for taking the decision.
In this case, the EEAS had itself considered that the allegations against the reporting officer justified opening an administrative investigation. That did not mean that the reporting officer was guilty of harassment. However, while the investigation was pending, there was an obvious potential conflict between the reporting officer’s position as the subject of the allegations and his role as the person responsible for evaluating the official who had made them. The Court concluded that the EEAS had not provided sufficient guarantees to dispel the legitimate doubts about impartiality arising from that situation.
The administration could have acted differently
The Court also attached importance to the fact that the EEAS had sufficient time to address the problem. The administration was aware of the allegations before the appraisal procedure began and could therefore have considered alternative arrangements, including appointing another reporting officer.
This aspect of the judgment is particularly relevant to the situations now being brought to Generation 2004. Institutions cannot necessarily rely automatically on the normal management hierarchy when that hierarchy itself gives rise to legitimate doubts about impartiality. Where a reporting officer is accused of harassment by the person they are supposed to evaluate, the administration must carefully consider whether the normal appraisal arrangements provide sufficient guarantees of impartiality.
Why was the appraisal annulled?
Reporting officers enjoy broad discretion when evaluating staff. Their assessments involve judgments concerning performance, competences and professional conduct, and the EU Courts will not normally replace those assessments with their own. However, precisely because reporting officers enjoy such broad discretion, the procedural safeguards surrounding the appraisal exercise are particularly important.
The Court could not exclude the possibility that the appraisal might have been different if another reporting officer had carried it out. The failure to provide sufficient guarantees of objective impartiality was therefore not treated as a harmless procedural irregularity, and the appraisal report was annulled.
A broader lesson from VE v ESMA
Colombani is not the only case demonstrating that staff appraisal procedures are subject to legal safeguards and judicial scrutiny. In VE v ESMA (Joined Cases T-77/18 and T-567/18), decided by the General Court on 23 September 2020, the Court annulled, among other things, the applicant’s 2016 appraisal report.
The circumstances of VE v ESMA were different, and the judgment should not be presented as another case identical to Colombani. Nevertheless, it provides a useful reminder that appraisal reports are not simply internal management documents beyond legal scrutiny. Institutions and reporting officers have broad discretion when evaluating staff, but that discretion must be exercised within a lawful procedure and in accordance with the safeguards provided by the Staff Regulations and the applicable rules.
Taken together, VE v ESMA and Colombani v EEAS underline an important principle: managerial discretion does not remove the administration’s obligation to respect the procedural guarantees protecting staff.
Why Generation 2004 is raising this issue now
The judgment in Colombani v EEAS is not new. However, the issue it addresses has become particularly relevant in light of the number of cases recently brought to Generation 2004 involving staff members who allege that they are being harassed by their Head of Unit or reporting officer while that same person continues to be responsible for assessing their performance.
These situations raise obvious concerns. An allegation of harassment does not automatically mean that the person accused is guilty, and not every difficult relationship between a manager and a staff member requires the appointment of a new reporting officer. However, Colombani makes clear that the administration cannot simply ignore circumstances that give rise to legitimate doubts about impartiality. Where such circumstances exist, the institution must ensure that sufficient guarantees are in place.
What this means for your appraisal in practice
If your reporting officer is the subject of an Article 24 request or an administrative investigation connected with allegations you have made, it is important not to wait until the appraisal report has been finalised before raising the issue. Concerns about the reporting arrangements should be raised before or during the appraisal procedure, preferably in writing.
Staff may also wish to ask the administration how it intends to ensure that the appraisal is conducted impartially. Depending on the circumstances, this may require consideration of alternative arrangements, including the appointment of another reporting officer.
It is equally important to keep a written record of the relevant facts and communications, including the request for assistance, information concerning any administrative investigation, the appraisal timetable and any concerns raised regarding the reporting arrangements. At the same time, staff should focus on the objective circumstances of their case. A difficult relationship with a manager will not automatically demonstrate a lack of impartiality; the key question is whether the concrete circumstances are capable of giving rise to legitimate doubts about the reporting officer’s ability to assess the staff member objectively.
Finally, staff should remember that reporting officers have broad discretion, but appraisal reports are not immune from legal review. As VE v ESMA and Colombani v EEAS demonstrate, serious procedural problems can have consequences for the validity of an appraisal.
The bottom line
The question is not simply whether a Head of Unit or reporting officer was actually biased when writing an appraisal. The circumstances themselves may create legitimate doubts about that person’s ability to act impartially, particularly where the reporting officer is the subject of an ongoing investigation arising from allegations made by the staff member being assessed.
This distinction is particularly important for staff who find themselves in the difficult position of being evaluated by the very person they have accused of harassment. Colombani v EEAS provides an important reminder that, in such circumstances, the administration may have to look beyond the normal reporting hierarchy and ensure that the appraisal procedure provides genuine and sufficient guarantees of impartiality
What this means for your appraisal in practice
- Raise concerns early
If your reporting officer is the subject of an Article 24 request or an administrative investigation connected with allegations you have made, raise the issue before the appraisal is finalised.
- Ask how impartiality will be guaranteed
Where appropriate, ask the administration how it intends to ensure an impartial appraisal. Depending on the circumstances, an alternative reporting officer may be necessary.
- Keep a written record
Keep copies of relevant communications, including your request for assistance, information concerning an investigation, the appraisal timetable and any concerns you raise regarding impartiality.
- Focus on objective circumstances
A difficult relationship with a manager will not automatically demonstrate a lack of impartiality. What matters are the concrete circumstances capable of giving rise to legitimate doubts.
- Remember that appraisal procedures can be challenged
Reporting officers have broad discretion, but appraisal reports are not immune from legal review. Serious procedural irregularities can have consequences for the validity of an appraisal. You can reject and appeal a report.
Generation 2004 will continue to monitor the legal situation in this area and keep colleagues informed.
