Judgment — ECLI:EU:F:2016:22
Date: 2016-03-01
Language of the case: French
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded

Summary 1. Actions brought by officials — Act adversely affecting an official — Definition — Preparatory act — Probationary report for the purpose of a dismissal decision — Not included (Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 14(1) and (3)) 2. Actions brought by officials — Action for the annulment of a confirmatory decision — Inadmissibility — Condition — Confirmed decision to have become final (Staff Regulations, Art. 91) 3. Officials — Recruitment — Probationary period — Report at the end of the probationary period — Administration’s discretion — Judicial review — Limits — Manifest error of assessment — Definition (Conditions of Employment of Other Servants, Art. 14(1) and (3)) 4. Officials — Recruitment — Probationary period — Assessment of results — Evaluation of abilities of a probationary member of the temporary staff — Scope (Staff Regulations, Art. 34) 5. Officials — Temporary staff — Principles — Rights of the defence — Scope — Obligation to hear the person concerned before adopting a decision to dismiss him — Observance of the rights of the defence in connection with dismissal at the end of the probationary period (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Conditions of Employment of Other Servants, Art. 14(3)) 1. Only acts or measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position can be regarded as acts adversely affecting him. In the case of acts or decisions adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is only those measures which definitively determine the position of the institution upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare the final decision. Acts preparatory to a decision do not adversely affect officials and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure. In that regard, claims for the annulment of reports at the end of the probationary period on which a decision to dismiss a member of the temporary staff is based are inadmissible. Although the decision to dismiss a staff member constitutes an act adversely affecting him in that it definitively determines the administration’s position and thereby affects his interests directly and immediately, the same does not apply to the report at the end of the probationary period, which is merely a preparatory measure for the dismissal decision. (see paras 43-45) See: Judgments of 17 May 2006 in Lavagnoli v Commission, T‑95/04, EU:T:2006:131, para. 33, and 16 March 2009 in R v Commission, T‑156/08 P, EU:T:2009:69, para. 49 and the case-law cited therein Judgment of 2 March 2010 in Doktor v Council, T‑248/08 P, EU:T:2010:57, para. 81 Order of 24 May 2007 in Lofaro v Commission, F‑27/06 and F‑75/06, EU:F:2007:89, para. 59 2. An action by an official or other staff member for the annulment of a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned for lack of any challenge by legal action within the prescribed time-limits. Otherwise, that person is entitled to contest either the confirmed decision or the confirmatory decision or both. (see para. 52) See: Judgments of 27 October 1994 in Chavane de Dalmassy and Others v Commission, T‑64/92, EU:T:1994:260, para. 25 and 25 October 2005 in Dedeu i Fontcuberta v Commission, T‑299/02, EU:T:2005:370, para. 22 Judgment of 5 May 2009 in Simões Dos Santos v OHIM, F‑27/08, EU:F:2009:44, para. 73, not set aside on that point by the judgment of 10 November 2010 in OHIM v Simões Dos Santos, T‑260/09 P, EU:T:2010:461 3. The administration has a wide discretion when it comes to assessing the abilities and performance of an official or other member of staff during his probationary period, and it is not for the Civil Service Tribunal to substitute its own assessment for that of the institutions in so far as concerns the outcome of a probationary period and the suitability of a candidate for permanent appointment or confirmation of contract in the European Union civil service, its review being confined to establishing that there has been no manifest error of assessment or misuse of powers. An error of assessment by the administration may only be characterised as manifest when it is easily recognisable and can be readily detected, having regard to the criteria to which the legislature intended to make the adoption of the administration’s decision subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error of assessment must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid. (see paras 84-86) See: Judgments of 24 March 2011 in Canga Fano v Council, F‑104/09, EU:F:2011:29, para. 35, confirmed on appeal by the judgment of 16 May 2013 in Canga Fano v Council, T‑281/11 P, EU:T:2013:252, para. 127; 29 September 2011 in AJ v Commission, F‑80/10, EU:F:2011:172, para. 35 and the case-law cited therein, and 12 June 2013 in Bogusz v Frontex, F‑5/12, EU:F:2013:75, para. 72 4. Where it is required to adopt a decision confirming the contract of a probationary member of the temporary staff, the administration must conduct a comprehensive examination of whether or not there are a number of positive considerations which came to light in the course of the probationary period showing that confirmation of the probationary staff member’s contract is in the interests of the service. Thus, the examination involves weighing up any positive and negative considerations which came to light during the probationary period in order to ascertain whether or not confirmation of the contract is in the interests of the service. (see para. 97) See: Judgment of 18 October 2007 in Krcova v Court of Justice, F‑112/06, EU:F:2007:178, para. 61, not set aside on that point by the judgment of 8 June 2009 in Krcova v Court of Justice, T‑498/07 P, EU:T:2009:178 5. In accordance with the fundamental principle of respect for rights of the defence, laid down by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, a person to whom a decision is addressed which appreciably affects his interests must have the opportunity effectively to put forward his point of view on the correctness and relevance of the facts and circumstances on the basis of which the decision was adopted. Where a member of the temporary staff is dismissed at the end of the probationary period, the principle that the rights of the defence are to be observed applies by virtue of Article 14(3) of the Conditions of Employment of Other Servants, which provides that the report that is to be made one month before the expiry of the probationary period on the ability of the member of the temporary staff to perform the duties pertaining to his post and also on his efficiency and conduct in the service is to be communicated to the person concerned, who has the right to submit his comments in writing. Furthermore, the fact that the opinion issued by the Joint Evaluation Committee has been forwarded to the probationary official or member of the temporary staff is an adequate guarantee that the rights of the defence have been observed. However, the principle that the rights of the defence are to be observed, which applies by virtue of Article 14(3) of the Conditions of Employment, does not imply that the authority empowered to conclude contracts of employment is under a general obligation to hear a probationary member of the temporary staff orally before taking a decision to dismiss him. Lastly, according to the case-law, the procedure laid down in Article 34 of the Staff Regulations is not intended to give the probationary official concerned the opportunity to state his views on the decision to be taken as a result of his receiving a negative probation report. That case-law applies mutatis mutandis to Article 14 of the Conditions of Employment of Other Servants and to the decision to dismiss a member of the temporary staff at the end of his probationary period. (see paras 114, 115, 121, 127, 128) See: Judgment of 1 April 1992 in Kupka-Floridi v ESC, T‑26/91, EU:T:1992:53, para. 38 Judgments of 18 October 2007 in Krcova v Court of Justice, F‑112/06, EU:F:2007:178, para. 75, confirmed on appeal by the judgment of 8 June 2009 in Krcova v Court of Justice, T‑498/07 P, EU:T:2009:178; 10 July 2008 in Sapara v Eurojust, F‑61/06, EU:F:2008:98, para. 149; 7 October 2009 in Y v Commission, F‑29/08, EU:F:2009:136, para. 45; 14 September 2010 in DaSilva Pinto Branco v Court of Justice, F‑52/09, EU:F:2010:98, para. 51, and 11 December 2014 in CZ v ESMA, F‑80/13, EU:F:2014:266, paras 55 and 57