JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Single Judge)
25 June 2015
Case F‑67/14
Filip Mikulik
v
Council of the European Union
(Civil service — Officials — Probationary period — Extension of probationary period — Dismissal at the end of the probationary period — Probation carried out under irregular conditions)
Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Mikulik seeks, first, annulment of the decision of the Council of the European Union of 25 June 2013 terminating his contract of employment and of the decision of 8 April 2014 rejecting his complaint against that decision, and, second, compensation for the material and non-material harm which he considers he has suffered.
Held:      The action is dismissed. Mr Mikulik is to bear his own costs and is ordered to pay the costs incurred by the Council of the European Union.
Summary
1.      Officials — Recruitment — Probationary period — Decision not to establish a probationary official — Decision to dismiss an established official — Different legal character — Respective criteria to be applied
(Staff Regulations, Art. 34)
2.      Officials — Recruitment — Probationary period — Purpose — Conditions — Assessment in relation to the duties performed by the probationary official
(Staff Regulations, Art. 34(3))
3.      Officials — Recruitment — Probationary period — Assessment of outcome — Assessment of the suitability of a probationary official — Taking account of the comments of an external consultant who has worked closely with the person concerned — Lawfulness
(Staff Regulations, Art. 34)
4.      Officials — Recruitment — Probationary period — Negative assessment of the person’s suitability — Extension of the probationary period and reassignment — Exceptional nature — Administration’s discretion
(Staff Regulations, Art. 34(1) and (3))
5.      Officials — Recruitment — Probationary period — Negative assessment of the person’s suitability — Obligation to give a warning before expiry of the probationary period — None — Infringement of the rights of the defence — None
(Staff Regulations, Art. 34)
1.      A successful candidate in a competition who is engaged as a probationary official may be appointed as an established official only if he passes the probationary period provided for in Article 34 of the Staff Regulations. In that regard, it is for the appointing authority to provide the probationary official with appropriate material conditions and support in the performance of his duties while he is on probation.
Where, at the end of his probationary period, a probationary official has proved obviously inadequate within the meaning of Article 34(2) of the Staff Regulations, or where his work has not proved adequate for establishment in his post within the meaning of the third subparagraph of Article 34(3) of the Staff Regulations, he must be dismissed. Such a dismissal decision is, in reality, a decision not to establish a probationer as an official, which is, by its very nature, different from a ‘dismissal’ of a person who has been appointed an established official. While in the latter case the grounds justifying the termination of the employment of an established official must be examined in detail, in decisions on the establishment of probationary officials, the examination must be more comprehensive and must relate to whether or not there are a number of positive and/or negative considerations which came to light in the course of the probationary period, showing that establishment of the probationary official is, or is not, in the interests of the service.
(see paras 26, 29)
See:
Judgment in Tréfois v Court of Justice, 290/82, EU:C:1983:334, paras 24 and 25
Judgments in BW v Commission, F‑2/11, EU:F:2012:194, para. 78; De Bruin v Parliament, F‑15/14, EU:F:2014:236, paras 42 and 45, and DH v Parliament, F‑4/14, EU:F:2014:241, paras 53, 54 and 57
2.      Although the probationary period, which is designed to enable the probationer’s abilities and conduct to be assessed, cannot be assimilated to a training period, it is still imperative that the probationer be given the opportunity, during this period, to demonstrate his qualities. That condition, which is inextricably linked with the concept of a probationary period, is contained by implication in Article 34(3) of the Staff Regulations. It also satisfies the requirements of the principles of sound administration and equal treatment, as well as of the duty of care, which reflects the balance of reciprocal rights and obligations which the Staff Regulations have created in relations between the public authority and EU civil service staff. It means in practice that the probationary official must not only be accorded appropriate material conditions but must also be given appropriate instructions and advice in the light of the nature of the duties performed in order to enable him to adapt to the specific needs of the post which he occupies.
In that regard, the required level of instructions and advice in question must be assessed not in the abstract, but in practical terms, taking account of the type of duties performed.
(see paras 27, 28)
See:
Judgments in Mirossevich v High Authority, 10/55, EU:C:1956:14, p. 387-389, and Patrinos v ESC, 3/84, EU:C:1985:202, paras 20 and 21
Judgment in Rozand-Lambiotte v Commission, T‑96/95, EU:T:1997:25, para. 95
Judgments in Krcova v Court of Justice, F‑112/06, EU:F:2007:178, para. 48; Doktor v Council, F‑73/07, EU:F:2008:42, paras 31 and 33 to 36; De Bruin v Parliament, EU:F:2014:236, paras 43 and 44, and DH v Parliament, EU:F:2014:241, paras 55 and 56
3.      In order to assess the work of a probationary official, neither the wording nor the purpose of Article 34 of the Staff Regulations prevents his immediate superiors or the Reports Committee from taking account of the comments of an external consultant responsible for the execution of a project initiated by the institution and with whom the probationary official worked closely, in order to establish a number of positive and/or negative considerations which came to light in the course of the probationary period, showing that establishment of the probationary official is, or is not, in the interests of the service.
(see para. 33)
See:
Judgment in BW v Commission, EU:F:2012:194, para. 78
4.      The terms of the third subparagraph of Article 34(3) of the Staff Regulations by no means suggest that if a probationary official’s work has not proved adequate for him to be established as an official, the appointing authority is under an obligation to consider extending his probationary period and reassigning him to a different department. On the contrary, the use of the words ‘in exceptional circumstances’ in that provision clearly shows that the appointing authority has a wide discretion in determining, according to the facts of the case and the individual circumstances, whether it is desirable to extend the probationary period. That is particularly true, where the probationary period is extended, of reassignment itself, which is presented in Article 34(3) merely as a possibility, given that the total duration of the probation must not under any circumstances exceed 15 months, in accordance with Article 34(1).
(see para. 39)
See:
Judgments in Krcova v Court of Justice, EU:F:2007:178, para. 77, and DH v Parliament, EU:F:2014:241, para. 76
5.      Where a probationary official is dismissed, the principle that the rights of the defence are to be observed applies by virtue of Article 34 of the Staff Regulations, which provides that the report that is to be made one month before the expiry of the probationary period on the ability of the probationary official to perform the duties pertaining to his post and also on his efficiency and conduct in the service ‘shall be communicated to the probationer, 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 probationary official during the probationary period that his performance is unsatisfactory.
Thus, even if the administration has failed to notify the person concerned during his probationary period of his alleged incompetence, such circumstances would not constitute an infringement of the principle that the rights of the defence must be observed, since the reports on which the administration relied in deciding to dismiss him at the end of the probationary period were duly communicated to him.
(see paras 48, 49)
See:
Judgment in Sapara v Eurojust, F‑61/06, EU:F:2008:98, paras 149 and 150