Judgment — ECLI:EU:F:2008:98
Date: 2008-07-10
Language of the case: English
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: European Personnel Selection Office (EPSO);Probationary period;Prohibition of harassment
Procedure: Staff cases;Action for damages

summary publication, paragraph 33, and Joined Cases T‑373/00, T‑27/01, T‑56/01 and T‑69/01 Tralli v ECB [2002] ECR‑SC I‑A‑97 and II‑453, paragraph 76). 121 It is necessary in the present case to examine the evidence put forward by the applicant which, in her view, is such as to establish that there was a manifest error of assessment. 122 The applicant relies, first of all, on a copy of an e‑mail which was sent to her by the head of the Judicial Cooperation unit at the Council describing the assistance which the applicant had provided to him as ‘excellent’. However, this letter, which is undated and is from a person who does not work at Eurojust, cannot establish that, in deciding that her employment should be terminated, the AACC made a manifest error in assessing the applicant’s professional abilities. 123 The applicant next relies on the pay rise awarded to her, which, in her view, establishes that there was a manifest error of assessment. However, it is apparent from the document in the case‑file that that rise was awarded in March 2004, at a time when the applicant was a member of the temporary staff at Eurojust and was granted, as Eurojust correctly points out, on account of the level of responsibilities assumed by the applicant, not the quality of her performance. 124 Moreover, Eurojust produces documents from which it is apparent that a number of the criticisms in the interim report and the end-of-probation reports were valid. That is so, in particular, with regard to the report for the audit carried out between September and December 2005 concerning the proper conduct of the recruitment procedures organised, in particular, between 16 October 2004 and 6 July 2005, the period during which the applicant was a probationer member of the temporary staff at Eurojust, and from which it is apparent that a significant number of recruitment files for which the applicant was responsible were incomplete. 125 While the applicant disputes the agency’s interpretation of the results of that audit, submitting, inter alia, that she was never criticised during her probationary period for having compiled incomplete recruitment files, it is clear that the applicant’s contentions are contradicted by the probation reports, which refer expressly to the applicant’s shortcomings in this area. 126 Finally, the applicant can derive no support from the memorandum which the Eurojust Staff Committee sent to the AACC to express its disapproval of the dismissal decision. In fact, in that memorandum, the Staff Committee did not offer any assessment of the quality of the applicant’s performance but simply criticised the fact that it had not been consulted before that decision was taken and that the dismissal had taken place in the context of a tense social climate. 127 The applicant’s contention that the AACC committed a manifest error of assessment in considering that her work had not proved adequate to justify retention in her post is therefore not justified. 128 It follows, without there being any need to accede to the applicant’s request for witnesses to give testimony, since the Tribunal is able to adjudicate on the case on the basis of documents produced at the hearing, that the applicant’s second ground of challenge must be rejected. 3. The third ground of challenge, alleging that the dismissal decision is vitiated by errors of law a) Arguments of the parties 129 The applicant submits, in essence, that the transmission of the e‑mail of 16 June 2005 to company A constitutes a breach of the principle of confidentiality and was therefore unlawful. She also argues that such an exchange of correspondence pertaining to her is contrary to Article 26 of the Staff Regulations. 130 Eurojust disputes those assertions. b) Findings of the Tribunal 131 While the applicant essentially submits that the head of unit committed an error of law by informing company A in the e‑mail of 16 June 2005 that the agency intended to dismiss her for incompetence, she fails to establish what effect such a message could have had on the dismissal decision. That argument must therefore be disregarded. In any event, and even if the applicant may be regarded as relying on a breach of Article 10 of the Rules of Procedure, it must be noted that, even if it were established, such a breach would have no effect on the legality of the contested decision by which the AACC dismissed the applicant. 132 The ground of challenge alleging infringement of Article 26 of the Staff Regulations will be rejected in the course of the assessment of the third plea. 133 It follows from the foregoing that the third ground of challenge, alleging that the dismissal decision was vitiated by errors of law, must be rejected. 134 Since each of the three grounds of challenge of the second plea has been rejected, that plea must be dismissed as unfounded. C – The third plea, alleging infringement of the rights of the defence 1. Arguments of the parties 135 The applicant puts forward three grounds of challenge in support of the plea alleging infringement of the rights of the defence. 136 First of all, the e‑mail sent on 16 June 2005 by the assistant at the Eurojust human resources unit to company A and the response received on the same day by that assistant were not placed on the applicant’s personnel file before the dismissal decision was taken, in breach of Article 26 of the Staff Regulations and, what is more, were not brought to her attention. None the less, the AACC relied on those documents in dismissing the applicant. 137 Secondly, during the probationary period, the head of unit never invited her to a meeting to inform her of the alleged inadequacy of her performance and, furthermore, did not give her any guidance which would have enabled her to improve her performance. 138 Thirdly, the comments submitted by the applicant after the interim report and the two end-of-probation reports had been produced were greeted with silence by the head of unit. The applicant infers from this that her rights of defence were infringed. 139 Eurojust rejects each of the applicant’s three grounds of challenge. 140 First of all, Eurojust submits that, though notified on 6 July 2005, the dismissal decision was taken on 14 June 2005. Consequently, the exchange of e‑mails on 16 June 2005 did not have any effect on that decision and are therefore unconnected with the present dispute. Eurojust therefore claims that the sole purpose of the exchange of e‑mails was to supplement the information in the applicant’s personnel file and, if necessary, to instigate disciplinary proceedings against her if it were established that, at the time when she was recruited, she had made false statements about her abilities and her professional experience. 141 In second place, Eurojust submits that the applicant had the opportunity to submit comments on the various reports which were drawn up. 142 In third place, Eurojust states that the applicant’s comments were duly and carefully analysed, studied and taken into account by the AACC in the decision‑making process. 2. Findings of the Tribunal a) The first ground of challenge, alleging that the AACC based its decision on e‑mails which had not been placed on the applicant’s personnel file 143 According to settled case‑law, the purpose of the first and second paragraphs of Article 26 of the Staff Regulation, which is applicable to members of the temporary staff by virtue of the reference made in the first paragraph of Article 11 of the Conditions of employment, is to ensure observance of an official’s rights of defence by preventing administrative decisions which affect that official’s administrative status and career from being based on facts relating to his conduct which are not referred to in his personnel file (see Case T‑283/03 Recalde Langarica v Commission [2005] ECR‑SC I‑A‑235 and II‑1075, paragraph 67). 144 However, infringement of Article 26 of the Staff Regulations can lead to annulment of a measure only if it is established that the documents in question could have had a decisive effect on the contested decision (Recalde Langarica v Commission, paragraph 68). 145 In the present case, it is not apparent from any material in the case-file that, in taking the dismissal decision, the AACC acted on the basis of the e‑mails exchanged on 16 June 2005 between Eurojust and company A. While the dismissal decision was taken, as its wording explicitly states, on 6 July 2005, namely after those e‑mails had been exchanged, the AACC, in order to terminate the applicant’s contract, referred expressly only to the interim report and the end-of-probation reports, all of which were produced before the e‑mails were exchanged. Moreover, before the date of that exchange, the head of unit had already recommended to the AACC that the applicant be dismissed. 146 It follows from the foregoing that the e‑mails exchanged on 16 June 2005 cannot be regarded as having a decisive effect on the dismissal decision. There is therefore no foundation for the applicant’s argument that the dismissal decision was taken in breach of the rights of the defence simply because those e‑mails were not placed on her personnel file before that decision was taken. 147 The first ground of challenge must, accordingly, be rejected. b) The second ground of challenge, alleging that the applicant was not informed, during the probationary period, of her alleged incompetence 148 According to established case‑law, observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law. That principle, which serves to ensure sound administration, requires that the person concerned must have been afforded the opportunity effectively to make known his views on any incriminating information taken into account for the purpose of adopting such a measure (see Case C‑344/05 P Commission v De Bry [2006] ECR I‑10915, paragraphs 37 and 38; Case T‑277/03 Vlachaki v Commission [2005] ECR‑SC I‑A‑57 and II‑243, paragraph 64; and Case T‑182/04 Van der Spree v Commission [2006] ECR‑SC II‑A‑2‑1049, paragraph 70). 149 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 the third paragraph of Article 14 of the Conditions of employment, 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 conduct and efficiency in the service ‘shall be communicated to the person concerned, who shall have the right to submit his comments in writing’. On the other hand, that principle does not place the administration under an obligation to warn a member of the temporary staff during the probationary period that his performance is unsatisfactory (see, by analogy, Case 3/84 Patrinos v ESC [1985] ECR 1421, paragraph 19, and Case T‑96/95 Rozand-Lambiotte v Commission [1997] ECR‑SC I‑A‑35 and II‑97, paragraph 102). 150 Accordingly, even if, in the present case, Eurojust had failed to notify the applicant of her alleged incompetence, such circumstances would not be sufficient to constitute an infringement of the principle that the rights of the defence must be observed, since the reports on which the administration relied in recommending the dismissal were duly communicated to the applicant. 151 Moreover, in the interim report, the head of unit drew the applicant’s attention to her professional shortcomings and requested her to improve her relations with her colleagues and broaden her knowledge of legal provisions relating to recruitment. 152 The second ground of challenge cannot therefore be upheld. c) The third ground of challenge, alleging that the AACC failed to take account of the applicant’s comments 153 It is not disputed that, on 1 February 2005, the applicant submitted her comments after receiving the interim report. She also submitted observations on 10 March and 13 June 2005, after the two end-of-probation reports had been drawn up. In those circumstances and in view of the fact that the applicant sent those comments to her hierarchical superior, she cannot maintain that there was failure to observe the rights of the defence. 154 Accordingly, the ground of challenge cannot be upheld. 155 It follows from the foregoing that the third plea must be rejected as unfounded. D – The fourth plea, alleging infringement of the general principle of sound administration 1. Arguments of the parties 156 The applicant submits that, on a number of occasions, Eurojust infringed the principle of sound administration. 157 That the principle of sound administration was infringed is thus illustrated by the discrepancy that exists between the formal reason given for her dismissal, namely her allegedly inadequate performance, and the real reasons for the dismissal. 158 Moreover, the head of unit endeavoured, equally in breach of the principle of sound administration, to gain access to documents in order to use them against the applicant without informing her that such a procedure had taken place and without filing them in her personnel file. 159 Lastly, Eurojust extended the probationary period with the sole aim of preparing for her dismissal at some future date. 160 Eurojust disputes that it infringed the principle of sound administration. It submits that it took into consideration both the interests of the applicant, inter alia by extending her probationary period, and the interests of the service, by taking account of the applicant’s inadequate performance. 2. Findings of the Tribunal 161 While the applicant, in pleading infringement of the principle of sound administration, maintains first of all that there is a discrepancy between the formal reason given for her dismissal, namely her allegedly inadequate performance, and the real reasons for the dismissal, such an assertion, which has already been rejected as unfounded in connection with the examination of the preceding pleas, cannot to any greater extent be accepted in connection with this plea. The same applies to the assertion that Eurojust failed to inform the applicant of the existence of the e‑mails exchanged with company A and to place those documents in her personnel file. 162 Nor, moreover, is there any ground for the applicant’s argument that Eurojust infringed the principle of sound administration by deciding to extend her probationary period with the sole aim of preparing for her dismissal at some point in the future, since she produces no objective relevant evidence to establish that such an assertion is well founded. 163 The fourth plea must therefore be rejected. E – The fifth plea, alleging misuse of powers 1. Arguments of the parties 164 In the application, the applicant submits that, in deciding to dismiss her, Eurojust failed to have regard to the general interest and took a decision ‘on a purely subjective basis’, with the sole aim of terminating her contract ‘without any reason’. 165 The applicant adds that the head of unit intended to dismiss her regardless of the quality of her work. Thus, on 15 December 2004, that is, less than two months after the beginning of her probationary period, he instructed the assistant at the unit to contact company A with the aim of gathering evidence that could justify terminating her contract. 166 In her reply, the applicant states that the dismissal decision was taken, not in the interests of the service, but because of the hostility of the head of unit, who wanted Mr F. to be engaged on the basis of vacancy notice 04/EJ/32 and not, as it transpired, the applicant. 167 Eurojust contends that the applicant fails to adduce any evidence to indicate that the agency used its powers for any purpose other than that for which they were conferred on it. 2. Findings of the Tribunal 168 According to the applicant, the contested decision is marred by misuse of power, since it fails to have regard to the ‘general interest’. However, according to established case‑law, the concept of misuse of powers refers primarily to the use of powers by an administrative authority for a purpose other than that for which they were conferred on it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the purpose of achieving an end other than that stated (Case C‑121/01 P O’Hannrachain v Parliament [2003] ECR I‑5539, paragraph 46). 169 In the present case, the plea alleging that the dismissal decision is vitiated by misuse of powers relies essentially on a ground of challenge previously referred to in connection with the second plea, namely the claim that the dismissal decision was taken because of the hostility of the head of unit, who would have preferred Mr F. to be engaged on the basis of vacancy notice 04/EJ/32. That grievance was rejected on the ground that the applicant failed to adduce any evidence to support her contentions. Accordingly, for the same reasons, this plea must be rejected as unfounded. 170 Since all of the pleas put forward by the applicant in support of her claim for the annulment of the dismissal decision have been rejected, that claim must be dismissed as unfounded. II – The claim that the applicant should be reinstated within Eurojust with effect from 6 July 2005 171 The Tribunal has no jurisdiction to issue orders in the context of judicial review based on Article 91 of the Staff Regulations and cannot, therefore, order Eurojust to reinstate the applicant to her post (Case T‑588/93 G v Commission [1994] ECR‑SC I‑A‑277 and II‑875, paragraph 26, and Case T‑197/98 Rudolph v Commission [2000] ECR‑SC I‑A‑55 and II‑241, paragraph 92). 172 That claim is therefore inadmissible. III – The claim for damages A – Arguments of the parties 173 The applicant submits that she suffered material and non‑material damage. She maintains that the head of unit attempted, first of all, to prevent her being engaged by the agency and then, having failed in that endeavour, tried to discourage her from remaining there. Since that endeavour was also unsuccessful, he attempted to obtain any evidence that could justify her dismissal and, to that end, approached a former employer of the applicant’s without informing her of that approach, in breach of the principle of confidentiality. He attempted, by unlawful means, to have Mr F. engaged for a post for which the duties were very similar, not to say identical, to those performed by the applicant. He also produced three successive reports, the sole purpose of which was to denigrate the applicant and to justify her dismissal at some point in the future. Lastly, he slandered her in public, falsely accusing her of destroying documents in a previous job. The applicant also claims that she was subjected to psychological harassment by her hierarchical superior. 174 Eurojust contends that the claim for damages should be dismissed, observing, in essence, that the applicant has failed to establish that the dismissal decision was unlawful and or to adduce any evidence that could demonstrate that she was subjected to psychological harassment. B – Findings of the Court 175 According to settled case‑law, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages is admissible only if it has been preceded by a pre‑litigation procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time‑limit, a complaint directed against the act in question. Where there is a direct link between an action for annulment and an action for damages, the action for damages is admissible as being ancillary to the action for annulment, without necessarily having to be preceded by a request to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the correctness of the implied or express rejection of the request. In the second case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request (Case T‑15/96 Liao v Council [1997] ECR‑SC I‑A‑329 and II‑897, paragraphs 57 and 58; Case T‑378/00 Morello v Commission [2002] ECR‑SC I‑A‑311 and II‑1497, paragraph 102; and Case T‑324/02 McAuley v Council [2003] ECR‑SC I‑A‑337 and II‑1657, paragraph 91). 176 In the present case, while the applicant has claimed that Eurojust should be ordered to pay her the sum of EUR 200 000 by way of compensation for the damage she suffered, she has failed to provide, either in the written pleadings or in the explanations given at the hearing, any indication as to the quantum of the damage suffered as a result of the decision, on the one hand, and as a result of conduct on the part of the administration which contains nothing in the nature of a decision, on the other hand. 177 However, without there being any need for that quantum to be stated, the claim for compensation in question cannot be upheld. 178 As regards the claim for compensation only for the damage arising, according to the applicant, as a result of the dismissal decision, the heads of claim seeking annulment of that decision have been rejected as unfounded. Accordingly, the applicant’s claim for compensation for the damage she suffered as a result of that decision cannot be upheld. 179 The claim for compensation for the damage resulting from conduct on the part of the administration which contains nothing in the nature of a decision and which is independent of the dismissal decision was not preceded by any request to the administration for reparation for such damage or a complaint in which the applicant challenged the correctness of the implied or express rejection of her request. Such a claim for damages must therefore be dismissed as inadmissible. 180 In those circumstances, all of the claims for damages must be rejected. 181 It follows from all of the foregoing that the action must be dismissed. Costs 182 Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs are to apply only to cases brought before the Tribunal from the date on which those rules entered into force, namely 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance on the subject are to continue to apply mutatis mutandis to cases pending before the Tribunal before that date. 183 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, pursuant to Article 88 of the same rules, in proceedings between the Communities and their servants the institutions are to bear their own costs. Since the applicant has been unsuccessful, each party must be ordered to bear its own costs. On those grounds, THE TRIBUNAL (Third Chamber) hereby: 1. Dismisses the action; 2. Orders each party to bear its own costs. Mahoney Boruta Tagaras Delivered in open court in Luxembourg on 10 July 2008. W. Hakenberg P. Mahoney Registrar President The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu Table of contents Legal context Background to the dispute Forms of order sought by the parties Law I – The claims for annulment of the dismissal decision A – The first plea, alleging infringement of Article 14 of the Conditions of employment and Article 9 of the Staff Regulations 1. Arguments of the parties 2. Findings of the Tribunal B – The second plea, alleging infringement of the general principle of law requiring reasons to be given for the decision and manifest errors of assessment of the facts resulting in errors of law 1. The first ground of challenge, claiming that the reasons given for the dismissal decision are inadequate and contradictory a) Arguments of the parties b) Findings of the Tribunal 2. The second ground of challenge, alleging that the dismissal decision is vitiated by manifest errors of assessment a) The first part of the second ground of challenge, alleging that the dismissal decision was in fact based on grounds other than those stated by Eurojust The first subsection of the first part – Arguments of the parties – Findings of the Tribunal The second subsection of the first part – Arguments of the parties – Findings of the Tribunal b) The second part of the second ground of challenge, alleging that the applicant’s abilities were such that she merited being appointed as an established official Arguments of the parties Findings of the Tribunal 3. The third ground of challenge, alleging that the dismissal decision is vitiated by errors of law a) Arguments of the parties b) Findings of the Tribunal C – The third plea, alleging infringement of the rights of the defence 1. Arguments of the parties 2. Findings of the Tribunal a) The first ground of challenge, alleging that the AACC based its decision on e‑mails which had not been placed on the applicant’s personnel file b) The second ground of challenge, alleging that the applicant was not informed, during the probationary period, of her alleged incompetence c) The third ground of challenge, alleging that the AACC failed to take account of the applicant’s comments D – The fourth plea, alleging infringement of the general principle of sound administration 1. Arguments of the parties 2. Findings of the Tribunal E – The fifth plea, alleging misuse of powers 1. Arguments of the parties 2. Findings of the Tribunal II – The claim that the applicant should be reinstated within Eurojust with effect from 6 July 2005 III – The claim for damages A – Arguments of the parties B – Findings of the Court Costs * Language of the case: English.