JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
25 October 2018 (*)
(Civil service — EASO staff — Members of the contract staff — Fixed-term contract — Probationary period — Decision to dismiss at the end of the probationary period — Rule of correspondence between the application and the complaint — Liability)
In Case T‑129/17 RENV,
DI, former member of the contract staff of the European Asylum Support Office, residing in [confidential], represented by I. Vlaic and G. Iliescu, lawyers,
applicant,
v
European Asylum Support Office (EASO), represented by W. Stevens, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
APPLICATION under Article 270 TFEU for, first, annulment of the decision of the Executive Director of EASO of 28 February 2013 to dismiss the applicant at the end of his probationary period and, second, damages for the damage allegedly suffered by him and his family,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, K. Kowalik-Bańczyk and C. Mac Eochaidh (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
1        This case has been referred to the General Court by the judgment of 2 March 2017, DI v EASO (T‑730/15 P, not published, ‘the judgment on the appeal’, EU:T:2017:138), setting aside the order of 15 October 2015, DI v EASO (F‑113/13, ‘the initial order’, EU:F:2015:120), which ruled on the action lodged at Registry of the European Union Civil Service Tribunal on 23 January 2014, by which the applicant sought, first, annulment of the decision of the Executive Director of the European Asylum Support Office (EASO) of 28 February 2013 to dismiss him at the end of his probationary period (‘the dismissal decision’) and, second, damages for the material and non-material damage allegedly suffered by him and his family.
Background to the dispute
2        On 1 March 2012, the applicant and EASO signed a contract of employment. According to that contract, the applicant was recruited by EASO on the basis of Article 3a of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), as a member of the contract staff in function group III, grade 9, for a period of three years starting on 16 March 2012, as EASO Security Officer.
3        Pursuant to Article 84 of the CEOS and Article 5 of the contract of employment, the applicant served a probationary period of 9 months, from 16 March 2012, the date of his entry into service, until 15 December 2012.
4        During that time, the applicant reported directly to the Head of the ‘General Affairs and Administration Unit’ (‘the GAAU’). This function was first held by Ms S., then on a temporary basis by the Executive Director of EASO (‘the Executive Director’) and, subsequently, from 1 December 2012, by Mr A., the new Head of the GAAU (‘the new Head of the GAAU’).
5        The applicant’s main tasks, according to Vacancy Notice EASO/2011/026, included developing and implementing internal security-related policies, procedures and guidelines, monitoring the security situation and liaising with local security forces, the security of EASO’s premises and coordinating with the security service contractors.
6        On 24 August 2012, a midterm assessment meeting was held between the Executive Director and the applicant. It is clear from the Note to the File on that meeting, dated 27 August 2012, that the Executive Director voiced his concerns regarding the applicant’s delay in preparing EASO’s rules of procedure in the event of emergency and the security guide. Furthermore, the applicant’s attention was drawn to deficiencies in providing timely information on security-related issues. According to the Note to the File of 27 August 2012, the applicant accepted the abovementioned comments and stated that he would take the necessary corrective measures.
7        On 20 November 2012, a further meeting was held between the Executive Director and the applicant, in the presence of the Human Resources Officer, in order to discuss the assessment of the applicant’s performance, in the light of the fact that the applicant’s 9 month probationary period was to end on 15 December 2012. It is clear from the Note to the File on that meeting, dated 22 November 2012 and signed by the three persons present, that the Executive Director noted that the applicant had made an effort to improve, but judged that improvement insufficient. The note mentions lack of communication both within the organisation and externally, unjustified delay in the preparation of the security rules, which the Executive Director had raised several times, including at the midterm review, as an important priority, deficiencies as regards reports which it had been agreed were to be provided weekly, and the applicant’s general attitude as to perceiving security issues. That note specified that, wishing to give the applicant the opportunity to improve further, the Executive Director had decided to extend the probationary period by 3 months, until 15 March 2013, and that the applicant had accepted ‘all the above’.
8        Following that meeting, the Executive Director drew up a probationary report (‘the first probationary report’) dated 22 November 2012, proposing to extend the probationary period for 3 months. That report stated that the efficiency, ability and conduct of the applicant needed to be improved. In particular, the report advised the applicant to take into account guidance from his superiors and his colleagues on how to perceive EASO security needs, to show more sensitivity to the multicultural working environment and to adapt his conduct according to different persons or situations. In that regard, it was stated to be imperative that the applicant improve his communication skills both internally and externally, and that he interact with parties in a more diplomatic manner. Lastly, the report emphasised the need to report to management on progress in a structured manner. The applicant indicated his agreement with that report by ticking the box ‘I agree’.
9        The applicant’s probationary period was therefore extended by 3 months, from 16 December 2012 to 15 March 2013.
10      On 1 December 2012, the new Head of the GAAU took up his duties as Head of Unit and the applicant’s assessor.
11      On 15 February 2013, a draft report at the expiry of the probationary period (‘the end-of-probation report’) was drawn up by the new Head of the GAAU and sent to the applicant by email. A meeting was held on the same day. Although the applicant’s efficiency and ability were considered to be satisfactory, his conduct was judged insufficient and the assessor’s overall assessment was ‘insufficient’. The end-of-probation report referred to persistent communication problems, a lack of appropriate communication, tension between colleagues when the applicant addressed them during the performance of tasks, difficulties integrating the multicultural environment of the organisation, a lack of sensitivity and adjustment of attitude and language to different persons and situations and, lastly, to reports concerning the applicant’s communication which were made to the new Head of the GAAU and to the administration. In the light of the above considerations, the new Head of the GAAU, as supervisor and assessor, concluded that maintaining the employment relationship between EASO and the applicant after the end of his probationary period, that is to say after 15 March 2013, was not recommendable, in particular having regard to the fundamental requirements for a security officer of sensitiveness, credibility, trust and confidence.
12      On 20 February 2013, the applicant signed the end-of-probation report although he indicated that he did not agree with it, and in particular, with the way his conduct had been assessed. He attached to the report six pages of written comments and requested a discussion with the Executive Director.
13      The requested meeting was held on 27 February 2013.
14      On 28 February 2013, the Executive Director, as the Authority Empowered to Conclude Contracts of Employment (‘AECE’), adopted the dismissal decision, pursuant to Article 84 of the CEOS. In view of the obligation, set out in Article 84(4) thereof, to give a notice period of 1 month, the AECE decided that the contract would end on 15 April 2013, that is, 1 month after the end of the extended probationary period.
15      By an email of 2 May 2013 sent to the Executive Director, the applicant indicated that he was lodging a ‘formal complaint’. That email is worded as follows:
‘…
Taking into consideration the [dismissal decision] sent to me on [28 February 2013], please consider this email a formal complaint against [that dismissal decision].
To my point of view, the evaluation has been done without taking into consideration the facts as they have been, without applying accordingly the [Staff Regulations of the European Union] and EC [Guides’] requirements, without taking into consideration my written comments on the [r]eport at the expiry of the probationary period drafted by [the new Head of the GAAU on] 15 February 2013.
I would kindly request to re-analyse the above mentioned documents and to change the first decision regarding my employment contract.
…’
16      By a second email of 2 July 2013 sent to the Legal Officer of EASO, the applicant indicated that he was lodging a formal complaint in the following terms:
‘…
Please consider this e-mail a formal complaint against [the dismissal decision taken] after [13] months of contract.
I kindly request the decision to be changed by [the AECE] and to allow me to be EASO’s employe[e] until 15 [March] 2015, as the initial contract proposal mentioned.
…’
17      The emails of 2 May and of 2 July 2013 were dealt with by EASO as a single complaint (taken together, ‘the Complaint’), which was rejected by decision of the AECE of 28 August 2013 (‘the Decision rejecting the Complaint’), notified to the applicant on the same day by email and the following day in a letter sent by recorded delivery.
Proceedings before the Civil Service Tribunal and before the General Court on appeal
The initial proceedings before the Civil Service Tribunal
18      By document lodged at the Registry of the Civil Service Tribunal on 28 November 2013, the applicant made an application for legal aid, on the basis of Article 95 of the Rules of Procedure of the Civil Service Tribunal, as then in force, with a view to bringing an action before that tribunal. That application was rejected by order of the President of the Civil Service Tribunal of 13 January 2014.
19      By application lodged at the Registry of the Civil Service Tribunal on 23 January 2014, registered as Case F‑113/13, the applicant brought an action seeking annulment of the dismissal decision and damages for the material and non-material damage suffered, in particular, EUR 90 000 as compensation for material damage, equivalent to 23 months’ salary together with all additional allowances (including the annual travel allowance and the installation allowance which the applicant had to pay back) and EUR 500 000 as compensation for the material and non-material damage that he and his family allegedly suffered.
20      EASO contended that the Civil Service Tribunal should declare the action inadmissible; in the alternative, dismiss the action in its entirety, and order the applicant to pay the costs.
21      There were two exchanges of pleadings, the second limited to the three pleas of inadmissibility raised by EASO.
22      By the initial order, adopted under Article 81 of the Rules of Procedure of the Civil Service Tribunal, the latter dismissed the action as manifestly inadmissible and ordered the applicant to bear his own costs and pay those incurred by EASO.
23      The Civil Service Tribunal limited its examination to the second plea of inadmissibility raised, namely failure to comply with the rule of correspondence between the application and the complaint. First, EASO claimed that the email of 2 May 2013 contained unsubstantiated allegations and no real plea in law and that the email of 2 July 2013 did not provide any specific grounds. In those circumstances, EASO was not in a position to know in sufficient detail the criticisms made by the applicant of the dismissal decision. Second, EASO stated that none of the pleas put forward in the application appeared in the Complaint.
24      In paragraphs 30 to 32 of the initial order, the Civil Service Tribunal identified two pleas in law in the applicant’s pleadings.
25      According to the Civil Service Tribunal, the first of those pleas in law alleged infringement of an internal EASO document entitled ‘EASO Guide to the Assessment of Probationary Staff’ (‘the Guide to the Assessment of Probationary Staff’), in so far as the applicant’s probationary period was not completed in accordance with that guide. The Civil Service Tribunal took the view that that plea could be broken down into seven grounds of complaint.
26      In paragraphs 26 to 29 and 34 to 37 of the initial order, the Civil Service Tribunal held that the first plea in law raised was manifestly inadmissible for failure to comply with the rule of correspondence between the application and the complaint. The only head of claim put forward in the applicant’s complaint enabling EASO to know in sufficient detail the criticisms that the applicant sought to make of the dismissal decision alleged that he had been evaluated at the end of his probationary period without his written comments on his end-of-probation report having been taken into consideration. According to the Civil Service Tribunal, even when interpreted with an open mind, the content of the applicant’s complaint did not establish that the first plea raised, alleging infringement of the Guide to the Assessment of Probationary Staff, was closely linked to that head of claim.
27      The second plea in law identified by the Civil Service Tribunal in the applicant’s pleadings concerned the incomplete notification of the Decision rejecting the Complaint.
28      In paragraph 33 of the initial order, the Civil Service Tribunal held that the second plea in law was ineffective. According to the Civil Service Tribunal, even if EASO had sent to the applicant, both by email of 28 August 2013 and by registered post of 29 August 2013, only 4 of the 6 pages of the Decision rejecting the Complaint and in this way infringed his rights of defence, that was not capable of invalidating the dismissal decision.
29      As regards the claim for compensation, in paragraphs 39 to 41 of the initial order, the Civil Service Tribunal merely observed that, since the claim for annulment was inadmissible and the claim for compensation was directly linked with the claim for annulment, the claim for compensation was therefore also inadmissible.
Appeal before the General Court in the case having given rise to the judgment on the appeal
30      The initial order was the subject of an appeal, registered as Case T‑730/15 P.
31      In the judgment on the appeal, the General Court upheld two of the grounds of appeal, which together alleged, in essence, that the Civil Service Tribunal had, in paragraphs 24, 26 to 29 and 34 to 37 of the initial order, erred in applying the rule of correspondence between the application and the complaint (judgment on the appeal, paragraph 93).
32      In that regard, the Court found that the Civil Service Tribunal had erred in law in regarding the emails of 2 May and of 2 July 2013 as a complaint seeking merely that the decision rejecting his complaint respond to the applicant’s written comments on the end-of-probation report. The Court held that those emails should have been regarded as a complaint by which the applicant claimed that the considerations on which the dismissal decision was based were incorrect, by relying again on arguments that he had already put forward in his written comments on the end-of-probation report. The Civil Service Tribunal had not taken into account the substance of those written comments in examining whether the rule of correspondence had been complied with (judgment on the appeal, paragraphs 74, 75, 79 to 81).
33      In addition, the Court held that the Civil Service Tribunal was not entitled to find that there was no link between the first plea raised at first instance, alleging breach of the rules of the Guide to the Assessment of Probationary Staff, on the one hand, and the applicant’s complaint, on the other, without taking into account the content of the applicant’s written comments on the end-of-probation report (judgment on the appeal, paragraphs 89 to 92).
34      The Court held that, in examining whether the rule of correspondence between the application and the complaint had been complied with in the present case, it was necessary to examine to what extent the heads of claim set out in the first plea raised before the Civil Service Tribunal tally with those set out in the applicant’s written comments on the end-of-probation report, to which the applicant had referred in the Complaint (judgment on the appeal, paragraph 100).
35      Consequently, the Court set aside the initial order; referred the case to a chamber of the General Court other than that which ruled on the appeal so that the General Court may rule at first instance on the action initially brought before the Civil Service Tribunal, and reserved the costs (judgment on the appeal, paragraphs 94, 99 and 101). The action was thus registered as Case T‑129/17 RENV.
Form of order sought following the referral of the case
36      The applicant claims that the Court should:
–        annul the dismissal decision and all its consequences;
–        order EASO to pay him EUR 90 000 for material damage suffered, equivalent to 23 months’ salary, together with all additional allowances (including the annual travel allowance and the installation allowance which he had to pay back) and EUR 500 000 in compensation for the material and non-material damage suffered by him and his family;
–        order EASO to pay all costs and expenses related to the proceedings.
37      EASO contends that the Court should:
–        declare the action partly inadmissible;
–        in the alternative, dismiss the action in its entirety;
–        order the applicant to pay all costs and expenses related to the proceedings.
Law
38      It follows from the judgment on the appeal that, in the present proceedings following referral, it is for the Court to rule, at first instance, on the action brought by the applicant before the Civil Service Tribunal, namely on the pleas of inadmissibility raised by EASO, since the Civil Service Tribunal examined only one of those pleas, and, if appropriate, on the substance of the case.
Admissibility of the claim for annulment
39      In its defence, EASO formally raises three pleas of inadmissibility, the first alleging that the action is out of time, the second alleging non-compliance with the rule that the application must correspond to the complaint and the third based on infringement of Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal in force when the action was brought.
40      The Court considers it appropriate to examine the first plea of inadmissibility first, then the third plea of inadmissibility and lastly the second plea of inadmissibility.
On whether the action is out of time
41      It is clear from the rejoinder that the first plea of inadmissibility was raised by EASO without its being aware that an application for legal aid had been lodged.
42      In accordance with Article 91(3) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), read in conjunction with Article 100(3) of the Rules of Procedure of the Civil Service Tribunal in force at the material time, an appeal is to be filed within 3 months, extended on account of distance by a single period of 10 days.
43      In the present case, the applicant was informed that his complaint had been rejected by email on 28 August 2013, and by letter of 29 August 2013 sent by recorded delivery, received by the applicant on 3 September 2013. He applied for legal aid on 28 November 2013. That application was therefore lodged within the abovementioned time limit of 3 months.
44      Under Article 97(4) of the Rules of Procedure of the Civil Service Tribunal in force when the application for legal aid was made, such an application suspends the period prescribed for the bringing of the action until the date of notification of the order making a decision on that application.
45      The application for legal aid was rejected by order of 13 January 2014.
46      In the light of the fact that the applicant still had at his disposal the 10-day period on account of distance, referred to in paragraph 42 above, for bringing his appeal, the action brought on 23 January 2014 was therefore lodged in time.
47      The Court therefore dismisses the plea of inadmissibility alleging that the action was out of time.
Infringement of Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal
48      In the defence, EASO claims that the action is inadmissible due to a lack of clarity and detail in the application, which contains neither real pleas in law nor consistent arguments of fact and law, other than a subjective rendition of the facts intertwined with some general statements of principle, case-law references, personal opinion and speculation, primarily based on the written comments provided by the applicant on the end-of-probation report. In its observations following referral of the case, EASO continues to contend that the applicant deprived it of the opportunity to know, with sufficient precision, the criticisms he formulated, due, inter alia, to the lack of precision of the complaint.
49      According to the case-law, under Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal in force when the action was brought, the application must contain the pleas in law and the arguments of fact and law relied on. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Civil Service Tribunal to give judgment in the action, if appropriate, without having to seek further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, coherently and intelligibly, in the application itself (see judgment of 15 February 2011, AH v Commission, F‑76/09, EU:F:2011:12, paragraph 29 and the case-law cited).
50      In the present case, the application contains a non-chronological statement of the facts, in addition to a certain number of allegations, interspersed with references to the case-law. However, it is clear from the heads of claim that the applicant seeks annulment of the dismissal decision and damages in compensation for material and non-material damage allegedly suffered.
51      Although the arguments set out by the applicant are somewhat lacking in clarity, it should be noted, first, that EASO was able to regroup them thematically and, second, that the Civil Service Tribunal was able to identify two pleas in the applicant’s pleadings. In the present proceedings following referral, in which the Court is to give judgment at first instance, it is appropriate, for the sake of simplicity, to adopt the same scheme of the two main pleas in law identified by the Civil Service Tribunal, namely alleged infringement of the Guide to the Assessment of Probationary Staff in the first place and, in the second place, incomplete notification of the Decision rejecting the Complaint.
52      Nevertheless, the Court proposes to reformulate the various limbs of the first plea, which had been divided by the Civil Service Tribunal into seven grounds of complaint. Four of the seven grounds of complaint identified by the Civil Service Tribunal, specifically, the first, second, fourth and fifth grounds of complaint set out in paragraph 31 of the initial order, may be usefully regrouped within a single limb alleging, in essence, that the applicant did not serve his probationary period under proper conditions. Next, the remaining three grounds of complaint identified by the Civil Service Tribunal will form the next three limbs. Lastly, two other limbs, which were not expressly mentioned by the Civil Service Tribunal, can be discerned from the applicant’s pleadings.
53      Therefore, in the present proceedings following referral, ruling as a court of first instance, the Court considers that, by his first plea in law, the applicant alleges that EASO infringed the Guide to the Assessment of Probationary Staff, in so far as his probationary period and his assessment were not conducted in accordance with that guide. In particular:
–        the applicant did not serve his probationary period under proper conditions in so far as he had three different tutors, was not supervised and received no advice, nor meaningful feedback;
–        the first probationary report was not followed by any discussion, contrary to what is stated in section C(10) of the Guide to the Assessment of Probationary Staff, and there were no real and factual reasons for extending his probationary period;
–        the applicant did not obtain, in breach of section D(2) of the Guide to the Assessment of Probationary Staff and of his rights of defence, factual examples of complaints about his conduct that had been addressed to his superiors;
–        EASO did not provide him with the Note to the File of 27 August 2012, the first probationary report, or the full end-of-probation report in so far as documentation justifying the proposal to dismiss was missing, in breach of the Guide to the Assessment of Probationary Staff and of his rights of defence;
–        the applicant was assessed by a person who was himself a staff member for only part of the applicant’s probationary period, who drew up his end-of-probation report with ‘intention to revenge’; and the Executive Director did not follow the appropriate procedure in respect of the applicant’s assessment and acted arbitrarily;
–        the applicant was dismissed due to an email that he sent regarding the conduct of his first supervisor.
54      The Court therefore dismisses the plea of inadmissibility alleging infringement of Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal.
Rule of correspondence between the Complaint and the application
55      EASO claims that the rule of correspondence between the complaint and the application has not been complied with and that the action should be declared to be inadmissible.
56      It should be noted that it is clear from settled case-law that the rule of correspondence between the complaint, within the meaning of the first indent of Article 91(2) of the Staff Regulations, and the subsequent application requires a plea raised before the Courts of the European Union to have been raised during the pre-litigation procedure, so that the Appointing Authority has already been made aware of the criticisms levelled by the person concerned against the contested decision, failing which the application will be inadmissible. That rule is justified by the very purpose of the pre-litigation procedure, which is to allow for an amicable settlement of disputes arising between officials and the administration. Accordingly, the court of first instance is entitled to reject as inadmissible a plea which fails to comply with the rule of correspondence, without being required to examine the merits of such a plea (see the judgment on the appeal, paragraphs 47 to 49 and 64 and the case-law cited).
57      It follows that, as is apparent from settled case-law, in actions brought by officials and servants, claims before the European Union Courts may, at first instance, contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the European Union Courts by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it (see the judgment on the appeal, paragraph 65 and the case-law cited).
58      It should also be noted that, since the pre-litigation procedure is informal in character and those concerned act, in general, without the assistance of a lawyer at that stage, the administration must not interpret complaints restrictively but must, on the contrary, examine them with an open mind. It is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject matter of the complaint. However, in order for the pre-litigation procedure provided for under Article 91(2) of the Staff Regulations to achieve its objective, it is necessary that the authority in question be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision (see the judgment on the appeal, paragraphs 66 and 67 and the case-law cited).
59      In that context, it should be noted that, in respect of the heads of claim made in a complaint within the meaning of Article 90(2) of the Staff Regulations, there is no rule comparable to that applicable to proceedings before the General Court, according to which, under Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and Article 76(d) of the Rules of Procedure of the General Court, the basic matters of law and fact relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself, and according to which a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments which, in accordance with the abovementioned provisions, must appear in the application. The pre-litigation procedure is informal in character. Accordingly, where an interested party has already put forward his observations on a specific point during the administrative procedure, the administration cannot argue that his complaint lacks precision in that regard (see the judgment on the appeal, paragraph 77 and the case-law cited).
60      In addition, it is clear from the case-law that, while it is necessary that the subject matter and cause of action of the dispute remain unchanged between the complaint and the action in order to allow an amicable settlement of the dispute, by informing the Appointing Authority of the criticisms of the person concerned at the complaint stage, the interpretation of those concepts must not have the effect of restricting the scope for the person concerned to challenge effectively a decision adversely affecting him. That is why the concept of the subject matter of the dispute, which corresponds to the claims of the person concerned, and the concept of cause of action, which corresponds to the legal and factual basis of those claims, must not be interpreted restrictively (see the judgment on the appeal, paragraphs 85 and 86 and the case-law cited).
61      In that regard, it must also be made clear that merely changing the legal basis of a dispute is not sufficient for it to be regarded as having a new cause of action. There may be a number of legal bases supporting a single claim and, consequently, a single cause of action. In other words, relying in the application on the infringement of a specific provision which was not relied on in the complaint does not necessarily mean that the cause of action of the dispute has thereby been altered. Consideration must be given to the substance of the cause of action and not merely to the wording of its legal bases, and the European Union judicature must ascertain whether there is a close connection between its bases and whether they essentially relate to the same claims (see the judgment on the appeal, paragraph 87 and the case-law cited).
62      In that respect, it should also be borne in mind that the statement of reasons for a decision rejecting a complaint is deemed to supplement the statement of reasons for the decision against which the complaint was directed. Accordingly, if the complainant is apprised of the reasoning for the act adversely affecting him through the response to his complaint, or if the reasoning for that response substantially alters or supplements the reasoning contained in that act, any plea in law put forward for the first time in the application and seeking to challenge the validity of the reasoning set out in the response to the complaint must be deemed admissible (see the judgment on the appeal, paragraph 88 and the case-law cited).
63      In examining whether, in the present case, the rule of correspondence between the application and the complaint was complied with, it is clear from the case-law cited above and from paragraph 100 of the judgment on the appeal that it is necessary to examine the extent to which the heads of claim set out in the first plea raised in the application tally with the heads of claim set out in the applicant’s written comments on the end-of-probation report to which the applicant referred in the Complaint.
64      In that regard, it should be noted, first of all, that, in his email of 2 May 2013, the applicant explained that, in his opinion, the assessment was conducted without taking into consideration ‘the facts as they have been’, without applying correctly the Staff Regulations, or the requirements of the ‘EC Guides’, and without taking into consideration his written comments on the end-of-probation report. He expressly requested that the Executive Director re-analyse the ‘above mentioned documents’ and change the decision regarding his employment contract. Subsequently, in his email of 2 July 2013, the applicant asked that the dismissal decision be altered by the AECE and that he be allowed to continue to be an EASO employee beyond 15 March 2013.
65      Interpreted with an open mind, those emails must be regarded as a complaint by which the applicant claims that the considerations underlying the dismissal decision were erroneous and relies again on the arguments already put forward at the stage of his written comments on the end-of-probation report (judgment on the appeal, paragraph 75). Furthermore, the applicant claims that the dismissal decision is ‘unfounded and unjustified’ and ‘ill-founded’.
66      Next, it is to be noted that both the application and the written comments contain a non-chronological statement of the facts in addition to a certain number of allegations, interspersed with references to the case-law. It is clear from those written comments that the applicant indicated his disagreement with the end-of-probation report by ticking the relevant box and by his handwritten comment that, in essence, he did not agree with the way in which his conduct was assessed. He requested that the proposal to terminate his employment contract be revoked. He cited the same recommendations in the Guide to the Assessment of Probationary Staff as those included in his application.
67      It is also clear from those written comments that the various complaints set out in the application are closely linked to the heads of claim in those comments. That is the case, in particular, as regards the breaches of the Guide to the Assessment of Probationary Staff by which the applicant alleged lack of supervision, advice and meaningful feedback; that certain tasks were not taken into consideration in the applicant’s end-of-probation report and that there was no discussion or meeting following the first probationary report. That is also the case as regards the applicant’s allegations concerning the new Head of the GAAU’s comments and conduct and regarding the assessment procedure in general and his rights of defence.
68      In the light of the foregoing considerations, of the case-law cited in paragraphs 58, 59, 61 and 62 above according to which a complaint need not adhere to standard formulations in order to be valid and must be examined with an ‘open mind’, and of the fact that EASO was fully aware of the applicant’s written comments, the Court dismisses the plea of inadmissibility alleging non-compliance with the rule of correspondence between the application and the complaint.
Substance
The claim for annulment
69      As stated in paragraphs 51 and 53 above, the applicant relies, in essence, on two pleas in law in support of his claim for annulment. First, he claims that EASO breached the Guide to the Assessment of Probationary Staff, in so far as his probationary period and his assessment were not conducted in accordance with that guide. Second, he asserts that the Decision rejecting the Complaint was not notified to him in full, which affected his rights of defence.
The first plea in law alleging breach of the Guide to the Assessment of Probationary Staff
70      The first plea in law in support of the claim for annulment of the dismissal decision is comprised, in essence, of six limbs. The first limb alleges that the applicant did not serve his probationary period under proper conditions. The second limb alleges that the first probationary report was not followed by a discussion and that there was no real reason for extending his probationary period. The third limb alleges that the applicant was not given factual examples of complaints about his conduct that had been addressed to his superiors. The fourth limb alleges that EASO did not provide the applicant with the Note to the File of 27 August 2012, the first probationary report, nor the full end-of-probation report. The fifth limb alleges, inter alia, that the applicant was assessed by the new Head of the GAAU and calls into question the procedure used. The sixth limb concerns the grounds underlying the dismissal decision.
The first limb alleging that the applicant did not serve his probationary period under proper conditions
71      By the first limb of the first plea in law, the applicant claims that he did not serve his probationary period under proper conditions for several reasons. First of all, he had three different tutors, each of whom had diverging approaches and expectations, and he was not supervised throughout the duration of his probationary period. In addition, he asserts that he did not receive advice or practical support for at least half of the first 9 months of his probationary period and from 22 November 2012 to 15 February 2013, the date on which he was handed the end-of-probation report, and that, in breach of section D(1) of the Guide to the Assessment of Probationary Staff, he was not provided with frequent and constructive feedback on how to perform his duties.
72      EASO contests those arguments.
73      It should be noted, as a preliminary matter, as regards the legal nature of the Guide to the Assessment of Probationary Staff, that it is clear from the case-law that, while guidelines cannot be regarded as rules of law with which the administration is required in all cases to comply, they nevertheless lay down rules of conduct indicating the approach to be adopted from which the administration cannot depart, in an individual case, without giving reasons which are compatible with the principle of equal treatment. By adopting such rules and announcing by publishing them that it would apply them to the cases to which they relate, the institution in question imposes a limit on the exercise of its own discretion and cannot depart from those rules, without being found, in some circumstances, to be in breach of general principles of law, such as the principles of equal treatment or of the protection of legitimate expectations. It is not therefore inconceivable that, in certain circumstances and depending on their content, such rules of conduct of general application may produce legal effects (see judgment of 19 October 2017, Possanzini v Frontex, T‑686/16 P, not published, EU:T:2017:734, paragraph 43 and the case-law cited).
74      It should also be noted, as regards the rules relating to the burden of proof and the taking of evidence, that, as a general rule, in order to satisfy the Court as to a party’s claims or, at the very least, as to the need for the Court itself to take evidence, it is not sufficient merely to refer to certain facts in support of the claim. There must also be adduced sufficiently precise, objective and consistent indicia of their truth or probability (judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 113).
75      Next, it should be noted that a member of the contract staff may be retained in his post only if he passes the probationary period provided for in Article 84(1) of the CEOS and that it is for the AECE to provide him with appropriate material conditions and supervision in the performance of his duties (see, by analogy, in respect a probationary official, judgment of 25 June 2015, Mikulik v Council, F‑67/14, EU:F:2015:65, paragraph 26 and the case-law cited).
76      As regards a decision to dismiss at the end of a probationary period, according to case-law, such a decision must be annulled if the applicant has not been allowed to complete his probationary period under normal conditions. More specifically, 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 requirement means in practice that the probationer must be given appropriate instructions and advice in order to enable him to adapt to the specific needs of the post which he occupies. Lastly, the required level of those instructions and advice must be assessed not in the abstract, but in practical terms, taking account of the type of duties performed. From that point of view the probationer’s previous experience cannot be ignored. While that experience cannot, as such, call into question the usefulness of the probationary period, which is designed to enable the probationer’s abilities and conduct to be assessed, as set out above, it may determine the level of supervision he should be given in order for the purpose of the probationary period to be fulfilled (see judgment of 2 July 2009, Giannini v Commission, F‑49/08, EU:F:2009:76, paragraph 65 and the case-law cited).
77      In addition, as regards the evaluation of the information in a probationary report justifying a decision to terminate a contract, account must be taken of the fact that the administration has a wide discretion when it comes to assessing the abilities and performance of an official or member of staff during his probationary period and that it is not for the Court 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 probationer for a permanent appointment or confirmation of contract in the EU civil service, its review being confined to establishing that there has been no manifest error of assessment or misuse of power. The purpose of the probationary period is to enable the administration to make a more concrete judgment of the probationer’s ability to perform the duties required by a particular post and his efficiency and conduct in the service (see judgment of 12 June 2013, Bogusz v Frontex, F‑5/12, EU:F:2013:75, paragraph 72 and the case-law cited).
78      Furthermore, as regards the limited review by the European Union judicature of the administration’s assessment, an error of assessment by the administration may be characterised as manifest only 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. That is particularly the case where the decision at issue is vitiated by errors of assessment which, taken together, are of only minor significance and hence are unlikely to have influenced the administration (see judgment of 12 June 2013, Bogusz v Frontex, F‑5/12, EU:F:2013:75, paragraphs 73 and 74 and the case-law cited).
79      Furthermore, where there are several grounds for a decision to terminate the contract of a member of the contract staff at the end of a probationary period, in order for the decision to be lawful it is enough for some of the grounds to be valid and for it to be clear that the administration would have made the same decision on the basis of those grounds alone. This is particularly so, given that a decision to terminate a contract at the end of a probationary period is different in nature from a dismissal of a member of staff after the probationary period has expired. While in the latter case the grounds justifying the termination of an established employment relationship must be examined in detail, in the former it is only a general examination that is required. This relates only to whether or not there are a number of positive considerations which came to light in the course of the probationary period and show that it would be in the interests of the service for the member of staff to continue in his post (see judgment of 12 June 2013, Bogusz v Frontex, F‑5/12, EU:F:2013:75, paragraph 75 and the case-law cited).
80      The first limb of the first plea in law alleging that the applicant did not serve his probationary period under proper conditions must be examined in the light of the considerations referred to in paragraphs 73 to 79 above.
81      In the present case, contrary to what the applicant claims, it does not appear that the probationary period was conducted improperly given the particularities of EASO’s start-up phase, of which the applicant was aware, and despite the changes in the GAAU’s personnel.
82      In that regard, it follows from the case-law set out in paragraphs 76 and 77 above that the probationary period cannot be assimilated to a training period in which the probationary member of the contract staff is constantly monitored and supervised. The purpose of the probationary period is to enable the administration to make a more concrete judgment of the probationer’s ability to perform the duties required by a particular post and his efficiency and conduct in the service. It is therefore completely normal and consistent with the Guide to the Assessment of Probationary Staff that EASO gave the applicant a period of time in which to demonstrate his skills, abilities and conduct. Furthermore, if it is the case that the performance of the probationary member of the contract staff requires greater supervision, this may indicate that he is not able to perform the duties required by his post and that it is not in the interests of the service for that member of staff to continue in that post.
83      It should be noted, in addition, that it is for the probationary member of the contract staff to be proactive, namely to ask questions and make inquiries of colleagues, to seek more specific instructions, if necessary, as well as feedback on his work. In that regard, the point must be made that, at the material time, EASO was a small organisation, which would have facilitated communication between members of staff. Accordingly, it can be presumed that the applicant was able to benefit from assistance from his colleagues and was able, on his own initiative, to ask his superiors for advice and further instructions in order to perform the duties which he was assigned properly.
84      In the present case, not only has the applicant not adduced any precise, objective and consistent evidence that he was left without, or unable to benefit from, any supervision during his probationary period, but he has himself referred to weekly reports to Ms S., meetings and other interactions with the Executive Director, inter alia on 24 August and on 20 November 2012, regarding various security-related issues and his difficulties with the new Head of the GAAU, and to weekly meetings with the new Head of the GAAU following his arrival. In addition, the applicant does not deny that discussions and ad hoc as well as weekly meetings took place, even though he is himself confused as to their content, asserting, in paragraph 44 of the application, that they did not concern his way of performing his duties, only to state that they partly concerned his way of performing those duties.
85      In addition, although in his written comments on the end-of-probation report, the applicant mentions certain tasks which were, in his opinion, not taken into consideration in his assessment, and, in the application, he states that certain tasks required supplementary efforts of him, it should be noted that a probationary report need not describe in detail all the underlying facts. In particular, the assessor is not required to describe all of the probationary member of staff’s activities or to refer exhaustively and in detail to the difficulties encountered during the probationary period. The assessor or the staff member’s hierarchical superior also cannot be expected to discuss all the factual and legal issues which the probationary member of staff may have raised in his written comments (see judgment of 2 July 2009, Giannini v Commission, F‑49/08, EU:F:2009:76, paragraph 93 and the case-law cited). The obligation to state reasons requires the assessor only to mention the salient characteristics of the performance of the probationary member of the contract staff concerned in terms, in particular, of aptitude to perform the tasks involved in his duties, productivity and conduct in the service (see, by analogy, judgments of 12 September 2007, Combescot v Commission, T‑249/04, EU:T:2007:261, paragraph 86, and of 13 December 2012, BW v Commission, F‑2/11, EU:F:2012:194, paragraph 43).
86      Lastly, it is also not apparent from the case file that the applicant complained of the conditions under which he was required to perform his duties, of the approaches adopted by his supervisors or of his supervision during his probationary period.
87      In those circumstances, the Court rejects the first limb of the first plea in law as unfounded.
The second limb alleging that the first probationary report was not followed by a discussion and that there was no reason for extending his probationary period
88      In essence, the second limb of the first plea in law comprises two complaints. The applicant claims, first, that the first probationary report was not followed by a discussion, contrary to what is provided by section C(10) of the Guide to the Assessment of Probationary Staff and, second, that there was a failure to state the reasons for extending his probationary period. He maintains that he was apprised of the first probationary report, but that he did not agree with it or accept it, having to ‘face a limit situation where the only thing he could normally do was to sign where so indicated by the [Human Resources O]fficer’.
89      EASO has not specifically commented on the absence of a meeting after the first probationary report, or the alleged breach of the Guide to the Assessment of Probationary Staff. As regards the complaint alleging a failure to state reasons for extending the probationary period, EASO claims that that complaint is inadmissible, since extending the probationary period is not a measure adversely affecting the applicant, and that that complaint is, in any event, unfounded.
90      It should be noted, first of all, that, in accordance with Article 84(3) of the CEOS, the end-of-probation report is to be communicated to the probationer, who is to have the right to submit his comments in writing. A member of the contract staff whose work has not proved adequate to justify retention in his function is to be dismissed. However, the AECE may, in exceptional circumstances, extend the probationary period.
91      As regards the Guide to the Assessment of Probationary Staff, section A(2) of that guide recommends that a report is to be communicated to the job holder and, on the basis of that report, and the comments of the job holder, the assessor has to make his/her recommendation, either to confirm the contract or not, to the AECE, which, in the present case, is the Executive Director. According to section C(5) of that guide, the report must be ‘shown’ to the probationer, who has the right to make written comments. It is specified in section C(8) of that guide that the report is to be given to the probationer who either signs it or makes his/her comments. Section D(2) of that guide states that, having arranged a meeting, the assessor will give the probationer the draft written probationary report and arrange a meeting to discuss the report. Once the discussion has been held, section D(3) recommends that, should the probationer wish to make a written response, a reasonable time period should be allowed for its preparation. Lastly, section E(2) states that only in exceptional circumstances may the probationary period be prolonged or, if the Executive Director deems it justified, following a recommendation to that effect from the Joint Committee. The probationer is to be notified of this extension in good time. Section C(10) of that guide relied on by the applicant concerns the objectivity of the assessment.
92      As regards the complaint concerning the absence of a discussion of the first probationary report, it should be noted, first of all, that, if the applicant’s work had not proved adequate, EASO could have dismissed him. In the present case, in the first probationary report, the categories ‘efficiency’, ‘ability’ and ‘conduct’ were each assessed as ‘to be improved’, and the applicant accepted and signed the Note to the File of the meeting of 20 November 2012, as well as that report, by ticking the box ‘I agree’. He did not add any comments to that report, despite the fact that he had the opportunity to do so.
93      Next, it is true that section D(2) of the Guide to the Assessment of Probationary Staff provides for a discussion after notification of the draft probationary report, and that that discussion, having regard to the case file provided to the Court, does not seem to have taken place. Furthermore, the Note to the File of the meeting of 20 November 2012 and the first probationary report do not refer to any recommendation from the Joint Committee or to exceptional circumstances.
94      However, the Executive Director’s assessment and the approach which he intended to adopt, namely extension of the probationary period, were discussed at the meeting of 20 November 2012 and it does not appear from the case file that the applicant challenged that approach. In addition, it is not apparent from the case file that the applicant himself requested a meeting to discuss the first probationary report. Lastly, the applicant does not indicate what he would have wanted to say had there been a meeting and has not established that the absence of a discussion had any effect on the substance of the first probationary report or on the dismissal decision against which the present action has been brought.
95      It is settled case-law that breaches of procedural rules constitute substantial irregularities of such a kind as to render an assessment report invalid if the applicant can show that in the absence of those irregularities the content of that report might have been different (see judgment of 29 September 2009, Wenning v Europol, F‑114/07, EU:F:2009:130, paragraph 97 and the case-law cited).
96      The Court considers that the same applies, by analogy, to a report at the end of an initial probationary period, and to a dismissal decision at the end of an extended probationary period. In the present case, the applicant has not shown how the first probationary report or the dismissal decision might have been different had the first probationary report been followed by a discussion. The complaint based on the absence of a discussion of the first probationary report must therefore be rejected as unfounded.
97      Next, it must be stated, without it being necessary to rule on its admissibility, that the complaint concerning the alleged failure to state the reasons justifying the extension of the probationary period is unfounded.
98      In that regard, it is clear from the case-law that, in order to determine whether the requirement to state reasons has been satisfied, it is necessary to take into account not only the documents giving notice of the decision but also the circumstances in which that decision was taken and brought to the knowledge of the individual concerned. It is thus possible to regard the reasons given for a decision as sufficient if the decision was adopted in a context known to the member of staff concerned which enables him to understand its scope. Furthermore, awareness by the member of staff concerned of the context in which a decision was adopted may constitute a statement of reasons for that decision (see judgment of 8 September 2017, Gillet v Commission, T‑578/16, not published, EU:T:2017:590, paragraph 59 and the case-law cited).
99      In the present case, the applicant had been informed of the deficiencies in his work, the first probationary report states that the applicant’s efficiency, ability and conduct all needed to be improved and the applicant accepted the extension of his probationary period without challenging it or making any comments.
100    On the assumption that the applicant is seeking to rely on a complaint alleging a breach of procedure, in that there were no exceptional circumstances, within the meaning of Article 84(3) of the CEOS or of section E(2) of the Guide to the Assessment of Probationary Staff, the fact remains that no such complaint is mentioned in his written comments or in his complaint. Moreover, he has not put forward arguments in support of such a position. He did not challenge the extension of his probationary period at the meeting of 20 November 2012. Nor did he add comments to the first probationary report, despite the fact that he had the opportunity to do so, and he did not lodge a complaint against the first probationary report or the decision to extend the probationary period.
101    It follows from the foregoing considerations that the complaint alleging a failure to state the reasons for extending the probationary period must be rejected as unfounded.
102    In the light of the foregoing considerations, the Court rejects the complaints regarding the absence of a discussion of the first probationary report and a failure to state the reasons for the extension of the probationary period as unfounded.
103    The Court therefore dismisses the second limb of the first plea in law in its entirety.
The third limb alleging that, in breach of section D(2) of the Guide to the Assessment of Probationary Staff and of his rights of defence, the applicant was not given factual examples of complaints about his conduct that had been addressed to his superiors
104    The applicant claims, in essence, that, in breach of section D(2) of the Guide to the Assessment of Probationary Staff and of his rights of defence, the applicant was not given factual examples of his weaknesses in respect of his communication skills and of the complaints regarding his conduct that were allegedly made to his superiors. Although he requested access to those complaints, the new Head of the GAAU refused to grant him such access.
105    EASO contests those arguments and maintains that the complaints were made orally.
106    First of all, the Court notes that, in accordance with the fundamental principle of respect for the 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. In that regard, an official must have the opportunity to comment on every document which an institution intends to use against him (see judgment of 1 March 2016, PujanteCuadrupani v GSA, F‑83/15, EU:F:2016:22, paragraph 114 and the case-law cited).
107    Where a member of the contract 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 84(3) of the CEOS, which provides that the report that is to be made 1 month before the expiry of the probationary period on the ability of the member of 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’. That provision is thus precisely intended to ensure compliance with the rights of the defence by allowing the member of the contract staff in question to submit any comments that he may have on the probationary report and by ensuring that those comments are taken into consideration by the AECE when taking its decision on the outcome of the probationary period (see, to that effect, by analogy, in the case of a temporary member of staff dismissed following his probationary period, judgment of 1 March 2016, PujanteCuadrupani v GSA, F‑83/15, EU:F:2016:22, paragraph 115 and the case-law cited).
108    Next, it should be recalled that, according to the case-law on the assessment of officials, although the fundamental principle of respect for the rights of the defence and Article 26 of the Staff Regulations require that the individual concerned must be afforded the opportunity effectively to make known his view on the evidence which could be laid against him, they do not impose an obligation to give prior warning, nor do they require documents formalising any criticism of the conduct of the individual concerned to be prepared beforehand (see, to that effect, judgment of 9 November 2006, Commission v De Bry, C‑344/05 P, EU:C:2006:710, paragraphs 39, 41 and 42).
109    In addition, as has been set out in paragraph 85 above, the probationary report need not describe in detail all the underlying facts. Furthermore, the assessor is not required to refer exhaustively and in detail to the difficulties encountered during the probationary period or to discuss all the factual and legal issues which the probationary member of the contract staff has raised.
110    Lastly, it should be noted, first, that section B(1) of the Guide to the Assessment of Probationary Staff states that ‘the opinion of other staff members with whom the probationer works may be taken into account’. It should be noted, second, that section D(2) of that guide recommends that ‘any matters referred to should be supported by factual examples of work performed during the probationary period’.
111    In the present case, as EASO claims, concerns specifically relating to the applicant’s communication problems were voiced with the applicant at the meetings of 24 August and 20 November 2012, as evidenced in the relevant notes to the file. According to the case file those problems were raised again at the meetings of 15 and 27 February 2013. The end-of-probation report mentions persistent communication problems and tensions between colleagues when the applicant addressed them during the performance of tasks related to the implementation of security and safety measures, or related administrative preparations. The same assessments appear in the annex to the Decision rejecting the Complaint. Both of those documents also note that reports relating to the applicant’s lack of appropriate communication were addressed to the administration and to the new Head of the GAAU. Lastly, the dismissal decision does not expressly refer to such reports of inappropriate communication, but it is based on ‘the assessment included in the end-of-probation report’. More specifically, that decision is based on the assessment included in the end-of-probation report, the applicant’s written comments and the additional discussions held with the applicant on 27 February 2013.
112    As regards the ‘reports’ relating to the applicant’s lack of appropriate communication in particular, it should be noted, as has been stated in response to a measure of organisation of procedure, that they were only oral reports or
observations, which, as has been set out in paragraph 108 above, did not have to be formalised. Therefore, EASO did not fail to comply with the Guide to the Assessment of Probationary Staff, the principle of respect for the rights of the defence or Article 26 of the Staff Regulations by raising against the applicant, in the end-of-probation report and in the annex to the Decision rejecting the Complaint, the fact that reports relating to the applicant’s lack of appropriate communication were addressed to the administration, without providing the applicant with documentation referring to those reports or including such documentation in the applicant’s personal file.
113    It follows from the foregoing that the third limb of the first plea in law must be rejected as unfounded.
The fourth limb alleging that, in breach of the Guide to the Assessment of Probationary Staff and of his rights of defence, EASO did not provide the applicant with the Note to the File of 27 August 2012, the first probationary report, or the full version of the end-of-probation report
114    The fourth limb of the first plea in law comprises, in essence, two complaints. First, the applicant maintains in the application that he was not provided with the end-of-probation report in breach of his rights of defence. However, in his observations following referral of the case, the applicant clarified that the end-of-probation report had been given to him, although only in part, since documents and files justifying the proposal to dismiss were missing.
115    Second, the applicant claims that, despite a request to that effect, the notes to the file, in particular that of 27 August 2012, and the first probationary report were given to him only on 15 February 2013, the day he was sent the draft end-of-probation report and of the meeting with the new Head of the GAAU, contrary to the Guide to the Assessment of Probationary Staff and to his rights of defence.
116    In its pleadings, EASO does not specifically address this fourth limb of the first plea in law, having regrouped the applicant’s arguments thematically for the purposes of its defence. However, it is clear from the defence that, in essence, EASO contests this limb.
117    The first complaint, as amended by the applicant in his observations following referral of the case, that the end-of-probation report was given to the applicant only in part, must be rejected since the applicant has not provided any further information such as to enable the substance of that complaint to be assessed. In so far as, by that complaint, the applicant seeks again to raise a complaint relating to an alleged lack of documentation justifying the end-of-probation report or the dismissal decision, the Court reiterates, as has been set out in relation to its examination of the third limb of the first plea in law in paragraph 108 above, that respect for the fundamental principle of the rights of the defence does not require documents formalising any criticism of the conduct of the individual concerned to be prepared.
118    As regards the complaint alleging that EASO did not provide the applicant with the Note to the File of 27 August 2012 or the first probationary report, despite his request to that effect, so as to enable him to act on their recommendations, it is true that section C(8) and section D(3) of the Guide to the Assessment of Probationary Staff recommend that a copy of the notes to the file on the meetings relating to the probationary period and the probationary report be sent to the probationer, which EASO does not claim to have done in the present case before the meeting of 15 February 2013.
119    However, although the applicant claims to have requested the first probationary report, he has not produced any evidence in relation to that request, the response that he may have received or as to whether he attempted to follow up on that request. It is not apparent from the pleadings that he requested the report or the Note to the File of 27 August 2012. He has also not explained why, despite the fact that he was present at the midterm and initial end-of-probation meetings and that he signed the notes to the file and the related reports, he was unable ‘to act on [the] recommendations’ in those reports, nor how he would have tried to act on them if he had been provided with the reports earlier. Furthermore, the Court notes that the end-of-probation report mentions an effort and commitment on the part of the applicant in several areas, and refers to an improvement in the categories ‘ability’ and ‘efficiency’.
120    In that regard, as has been set out in paragraph 95 above, even if the late provision of the notes to the file, in particular that of 27 August 2012, and of the first probationary report amounted to a breach of the Guide to the Assessment of Probationary Staff, it would constitute a substantial irregularity of such a kind as to render a dismissal decision invalid only if in the absence of that irregularity the content of the end-of-probation report or the dismissal decision might have been different. However, the applicant merely relies a posteriori on a potential irregularity which he himself could have raised with his superiors earlier. It has therefore not been established that the content of the end-of-probation report and the dismissal decision might have been different had he been provided with the notes to the file, in particular that of 27 August 2012, and the first probationary report earlier.
121    In those circumstances, the fourth limb of the first plea in law must be dismissed.
The fifth limb alleging that the applicant was assessed by a person who was himself a staff member for only part of the applicant’s probationary period, who drew up his end-of-probation report with ‘intention to revenge’, and that the Executive Director did not follow the appropriate procedure in respect of the applicant’s assessment and acted arbitrarily
122    The fifth limb of the first plea in law comprises three complaints. First, the applicant criticises EASO for the fact that he was assessed by a person who was himself a staff member for only part of the applicant’s probationary period; second, the applicant maintains that his end-of-probation report was drawn up by the new Head of the GAAU with ‘obvious intention to revenge’; third, the applicant claims that the Executive Director did not follow the appropriate procedure in respect of the applicant’s assessment and acted arbitrarily by condoning a breach of his rights of defence.
123    EASO does not specifically address the complaints regarding the assessment of the applicant by a person who was himself a staff member for only part of the applicant’s probationary period or the allegation of revenge, having regrouped the applicant’s arguments thematically for the purposes of its defence. However, as far as concerns the alleged breach of the applicant’s rights of defence and the procedure followed, it is clear from EASO’s pleadings that, in essence, EASO contests this limb.
124    First of all, the Court notes that it is true that, in his written comments on the end-of-probation report, the applicant refers to negative remarks made by the new Head of the GAAU to the applicant shortly after the new Head of the GAAU’s entry into service. However, his written comments and the Complaint do not contain any express and specific particulars such as to make it possible to interpret them as amounting to complaints that his hierarchical superior, who was himself a staff member only from 1 December 2012, drew up his end-of-probation report, or that that report was drawn up with vengeance in mind.
125    Next, the Court finds, without it being necessary to rule on their admissibility, that the three complaints of the present limb are unfounded.
126    In that regard, in the first place, as regards the fact that the applicant was assessed by the new Head of the GAAU, it should be noted that it is settled case-law that the institutions have a wide discretion in the organisation of their departments according to the tasks conferred on them and in the assignment, in view of those tasks, of staff who are made available to them (see judgment of 14 October 2004, Pflugradt v ECB, C‑409/02 P, EU:C:2004:625, paragraph 42 and the case-law cited).
127    In EASO’s organisational structure, the applicant was a member of the GAAU and reported directly to the Head of Unit, who was his assessor for the purpose of the probationary period. It was therefore perfectly normal that, after his arrival, the new Head of the GAAU, as the applicant’s direct hierarchical superior, undertook the role of the applicant’s assessor.
128    Furthermore, it is clear from the end-of-probation report that the new Head of the GAAU referred to the previous assessments of the applicant. That report shows improvement in the applicant’s performance in respect of the ‘Efficiency’ and ‘Ability’ categories and of the applicant’s efforts, and refers to the Notes to the File of 27 August and 22 November 2012, the extension of the probationary period and persistent difficulties.
129    In the second place, as regards the allegation of vengeance, first, it should be noted that it is clear from the case-law that, even though the possibility cannot be excluded that differences between a member of staff and his immediate superior may cause a degree of irritation on the part of the immediate superior, that possibility does not, as such, imply that the immediate superior is not in a position to assess objectively the merits of the person concerned (see judgment of 13 December 2005, Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, paragraph 150 and the case-law cited).
130    Second, on the assumption that, in alleging vengeance, the applicant is seeking to rely on a plea of misuse of powers, it must be recalled that, according to the case-law, such action implies that an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may be vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated. It is not, therefore, sufficient to refer to certain facts in support of claims; there must also be adduced evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability (see judgment of 29 September 2009, Wenning v Europol, F‑114/07, EU:F:2009:130, paragraph 170 and the case-law cited).
131    However, the fact remains that the applicant has not adduced any precise, objective and consistent evidence from which it could be established that the new Head of the GAAU drew up the applicant’s end-of-probation report with an intention of ‘revenge’.
132    In the third place, as regards the procedure followed, the Court notes, first of all, that the applicant’s confirmation in his post was subject to a successful probationary period. In that regard, throughout his probationary period, the applicant benefited from regular meetings and oral and written feedback on his performance and he was able to exercise his right to make written and oral comments on the first probationary report and on the end-of-probation report, whether or not he made use of that opportunity. Even if certain recommendations in the Guide to the Assessment of Probationary Staff were not followed, it has not been established that, in the absence of those irregularities, the content of the end-of-probation report or the dismissal decision might have been different. It follows that the complaint that the Executive Director did not follow the appropriate procedure in respect of the applicant’s assessment and acted arbitrarily must be rejected as unfounded.
133    Next, and still as regards the procedure followed, the Court notes that the applicant seems to wish to call into question the fact that the person who took the dismissal decision is also the person responsible for examining his complaint, that is to say that within EASO, the same person is both the Appointing Authority and the AECE, according to a combined reading of Article 31(6)(g) and of Article 38 of Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (OJ 2010 L 132, p. 11).
134    In that regard, first, the Court notes that, under Article 31(6)(g) of Regulation No 439/2010, the Executive Director is responsible, inter alia, for exercising the powers laid down in Article 38 of that regulation in respect of staff. Article 38(3) of that regulation states that the powers conferred on the Appointing Authority by the Staff Regulations and on the AECE by the CEOS are to be exercised by EASO in respect of its own staff. Article 90(2) of the Staff Regulations, applicable to members of the contract staff under Article 117 of the CEOS, provides a preliminary means of seeking redress whereby the administration is enabled to reconsider its decision before an application is made to the Court. Under the terms of that article the complaint must be addressed to the Appointing Authority, that is to say, in this case, pursuant to Regulation No 439/2010, to the Executive Director. In accordance with the requirements of the Staff Regulations, the CEOS and Regulation No 439/2010, the Executive Director therefore had no alternative but to decide on the complaint himself (see, by analogy, judgment of 24 March 1983, Colussi v Parliament, 298/81, EU:C:1983:94, paragraph 12).
135    Second, the applicant has not established that the Executive Director, acting as the Appointing Authority to whom his complaint was to be addressed, was no longer open to his arguments. The fact that the Executive Director did not reach a different conclusion from that proposed by the new Head of the GAAU is not sufficient to demonstrate that the Executive Director did not perform his duties correctly.
136    Third, under Article 91 of the Staff Regulations, applicable to members of the contract staff under Article 117 of the CEOS, EU law provides for a system of judicial review of the decisions taken by EASO. Therefore, EASO’s decisions are subject to a review of legality conducted by the European Union judicature. In the present case, the applicant made effective use of his right to make written comments on the end-of-probation report, to make a complaint and to lodge an action for the annulment of the dismissal decision.
137    It follows, on the assumption that the applicant is seeking, by this complaint concerning the procedure followed, to rely on an infringement of the nemo judex in sua causa principle, that that complaint must be rejected as unfounded.
138    The Court therefore rejects the fifth limb of the first plea in law in its entirety as unfounded.
The sixth limb concerning the grounds underlying the decision to dismiss the applicant
139    The applicant claims that he was dismissed due to an email that he sent regarding the conduct of his first supervisor. The applicant also claims that the dismissal decision was ‘unfounded and unjustified’ or ‘ill-founded’.
140    EASO contests the applicant’s arguments. It contends that the dismissal decision gives sufficient reasons and that the applicant was fully aware of the underlying reasons for that decision.
141    In the first place, as regards the claim that the applicant was dismissed due to an email that he sent regarding the conduct of his first supervisor, it should be noted, on the assumption that the applicant is seeking to rely on a claim of misuse of power, that, once again, he has not adduced any precise, objective and consistent evidence from which it could be established that the dismissal decision was taken for purposes other than those stated, namely in the interests of the service, in accordance with the case-law cited in paragraph 130 above. As EASO claims, the applicant’s allegation is based on mere speculation, is not supported by any evidence and is inconsistent with the fact that the applicant’s probationary period was extended.
142    It follows that that allegation must be rejected as unfounded.
143    In the second place, as regards the merits of the dismissal decision, the Court notes that, in his email of 2 May 2013, the applicant claims that his assessment was conducted without taking into consideration ‘the facts as they have been’, without applying correctly the Staff Regulations, nor the requirements of the ‘EC Guides’, and without taking into consideration his written comments on the end-of-probation report. In that regard, the Court has already held, in paragraph 75 of the judgment on the appeal, that the applicant’s complaint should have been classified as a complaint by which the applicant claimed that the considerations on which the dismissal decision was based were incorrect, by relying again on arguments already put forward at the time of his written comments on the end-of-probation report.
144    Having considered the applicant’s various complaints regarding his probationary period and the procedure followed in respect of his assessment above, it is now appropriate to address the matter of the grounds underlying the dismissal decision and whether or not the applicant’s written comments were taken into account.
145    The end-of-probation report, despite noting improvements in the applicant’s ability and efficiency, refers, inter alia, to persistent problems of communication, lack of sensitivity and difficulties in integrating. In the light of the fundamental requirements for a security officer of sensitiveness, credibility, trust and confidence, that report concluded that maintaining the employment relationship was not recommended. The dismissal decision itself refers to discussions on the applicant’s ability, efficiency and conduct at different stages of the probationary period, to the fact that the applicant exercised his right to submit comments in writing and to the fact that, having carefully taken into consideration those comments, the end-of-probation report deemed that the probationary period had to be regarded as unsuccessful. That decision states that it is on the basis of the assessment included in the end-of-probation report, the applicant’s written comments and further dialogue with the applicant on 27 February 2013, that the Executive Director decided, on 28 February 2013, to terminate the applicant’s employment as of 15 April 2013.
146    It should be noted that the fact that the Executive Director did not reach a different conclusion from that proposed by the new Head of the GAAU is not sufficient to demonstrate that the Executive Director did not correctly perform his duties or that the dismissal decision was unlawful (see paragraph 135 above).
147    Furthermore, as has been set out in paragraph 77 above, it is not for the Court to substitute its own assessment for that of EASO in so far as concerns the outcome of the probationary period and the suitability of the applicant for confirmation of his contract in the EU civil service, unless there has been a manifest error of assessment or a misuse of power. In the present case, the applicant has not adduced sufficient evidence, for the purposes of the case-law cited in paragraph 78 above, as to make EASO’s findings implausible.
148    Next, as regards the complaint that the Executive Director failed to consider the applicant’s written comments, that complaint cannot succeed.
149    First of all, Article 84(3) of the CEOS is intended to ensure that members of the contract staff have the right to submit any comments they may wish to make to the AECE and also to ensure that those comments are taken into consideration (see judgment of 2 July 2009, Giannini v Commission, F‑49/08, EU:F:2009:76, paragraph 103 and the case-law cited).
150    Next, as set out in paragraph 85 above, the assessor or the staff member’s hierarchical superior cannot be expected to discuss all the factual and legal issues which the probationary member of staff may have raised in his written comments. Furthermore, hierarchical superiors cannot be required to give their express views, in a statement of reasons, on all the arguments raised by the probationary member of staff (judgment of 2 July 2009, Giannini v Commission, F‑49/08, EU:F:2009:76, paragraph 105).
151    In the present case, the end-of-probation report was sufficiently clear in providing the AECE with information such as to enable it to take a reasoned decision, especially since the AECE was fully aware of the applicant’s previous assessments and the level of his performance.
152    It is true that the dismissal decision, the comments and the Note to the File of the dismissal decision dated 28 February 2013 do not expressly mention the considerations to which the applicant refers in his written comments. However, in the light of the case-law set out in paragraphs 85 and 150 above, it cannot be inferred from a simple comparison of the end-of-probation report, the dismissal decision and the Notes to the File of 27 and 28 February 2013 with the applicant’s written comments that his arguments were not taken into consideration.
153    In addition, in the Decision rejecting the Complaint, it is stated that the applicant expressed his dissatisfaction on account of the fact that ‘the procedure[s] … have not been followed’ and that his written comments on the end-of-probation report were not taken into consideration. Furthermore, the Executive Director expressly referred to the complaints made by the applicant in his written comments in the subheadings of the annex to the Decision rejecting the Complaint regarding the conditions under which the applicant served the probationary period, on the one hand, and the procedure for adopting an end-of-probation report, on the other.
154    Thus, the activities assigned to the applicant, training and the general framework of EASO in its start-up phase were mentioned in the abovementioned first subheading regarding the conditions of the probationary period, thereby reflecting the concerns raised by the applicant in relation to the opportunities for training and the tasks which had been assigned to him. In the abovementioned second subheading, regarding the procedure for adopting the end-of-probation report, it is explained, inter alia, that the rules were applied, to the extent possible, in the interest of the applicant and that the end-of-probation report had to be understood together with other relevant documents on the assessment of the probationer, the regular meetings and the verbal and written indications on his performance. It is also reiterated that the end of the probationary period does not lead automatically to the confirmation of the probationer in his post and that the applicant was able to exercise his right to submit written and oral comments throughout the procedure.
155    In addition, in the subheading of the annex to the Decision rejecting the Complaint regarding the aims of the probationary period, reference is made to the fact that a probationary period cannot be assimilated to a training period. It is also specified in that subheading that a decision to terminate employment on the ground that the probationary period has not proved successful cannot be assimilated to the dismissal or assessment of an established official and that, therefore, the procedural guarantees cannot be transposed. It also set out the procedure for informing the probationer of the assessment; referred to the fact that the rights of the defence are to be complied with by giving the opportunity to make comments, and that the comments are to be taken into consideration before any decision is made. It should be noted that those considerations reflect the concerns raised by the applicant in his written comments in respect of the rights of the defence and compliance with procedures.
156    It follows that the Decision rejecting the Complaint responds to the main complaints raised in the Complaint and in the applicant’s written comments, and specifies the relevant considerations which led to the dismissal decision, the Appointing Authority not being required to refer exhaustively to all the issues raised in the applicant’s written comments. In any event, the Decision rejecting the Complaint allowed the applicant to put forward his pleas and arguments for the annulment of the dismissal decision.
157    It follows from the foregoing that the sixth limb of the first plea in law must be regarded as unfounded and that the first plea in law should therefore be dismissed in its entirety.
The second plea in law alleging incomplete notification of the Decision rejecting the Complaint
158    By the second plea in law for annulment of the dismissal decision, the applicant alleges that EASO deliberately sent him an incomplete version of the Decision rejecting the Complaint in order to undermine his rights of defence. He claims that the version of the annex to that decision sent by email on 28 August 2013 and that sent by recorded delivery on 29 August 2013 (received on 3 September 2013) contained only four pages, yet the annex should have contained six pages.
159    EASO contests those arguments.
160    First, it must be stated that, in his reply, the applicant has not challenged the substance of EASO’s email of 12 December 2013, provided in Annex B.15, confirming to the applicant that the full annex of six pages to the Decision rejecting the Complaint was enclosed in the letter sent by recorded delivery on 29 August 2013. Furthermore, he was sent a copy of the document in an attachment to that email. In addition, the six pages of that annex are included in the case file.
161    Second, in any event, it should be noted that the applicant has not explained why the absence of the two pages of the annex to the Decision rejecting the Complaint in the email of 28 August 2013 should lead to annulment of the dismissal decision or how he was affected by, or suffered damage as a result of, those missing pages.
162    In that regard, it should be noted that the applicant was able to lodge his application within time and that the full annex was included in the case file. Furthermore, his claim for damages does not refer to this plea in law.
163    In those circumstances, the Court dismisses the second plea in law, alleging incomplete notification of the Decision rejecting the Complaint, as unfounded.
164    Having regard to all the foregoing considerations, the Court dismisses the claim for annulment of the dismissal decision in its entirety.
The claim for damages
165    Claims for compensation for material or non-material damage must be rejected where, as in the present case, they are closely associated with claims for annulment which have themselves been dismissed as unfounded (see, to that effect, judgment of 6 November 2014, DH v Parliament, F‑4/14, EU:F:2014:241, paragraph 86 and the case-law cited).
166    In the present case, since the examination of the pleas in law raised in support of the claim for annulment has not revealed any illegality or, therefore, any fault of such a nature as to render the European Union liable, the claim for damages must also be dismissed.
167    It follows from all the foregoing that the action must be dismissed in its entirety.
Costs
168    In accordance with Article 133 of the Rules of Procedure, a decision as to costs shall be given in the judgment which closes these proceedings. Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, according to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any costs.
169    In the judgment on appeal, the General Court reserved the costs. Consequently, in this judgment, the Court must make an order relating to the costs of the initial proceedings before the Civil Service Tribunal, the appeal proceedings before the General Court and the present proceedings following referral.
170    It follows from the reasoning set out above that the applicant has ultimately failed in his action. As regards the proceedings in Case T‑730/15 P, the appeal was brought by the applicant and EASO was unsuccessful.
171    In the present case, an order that each party is to bear its own costs in Case F‑113/13, in Case T‑730/15 P and in the present proceedings following referral will constitute a fair application of those provisions.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders each party to bear its own costs, including those relating to Case F‑113/13 and to Case T‑730/15 P.
GervasoniKowalik-BańczykMac Eochaidh
Delivered in open court in Luxembourg on 25 October 2018.
E. Coulon
S. Gervasoni
Registrar
President
*      Language of the case: English.