It is not clear from Article 41 of the Conditions of Employment for Staff of the European Central Bank, applicable as of 1 January 2009, that decisions not to confirm the appointment of a member of staff serving a probationary period are subject to a special appeals procedure. In the interests of sound administration and effective legal protection, the provisions governing the internal appeals procedure of an institution must be clear, precise and certain.

With regard to an action brought by a member of the European Central Bank staff against a decision not to confirm his appointment after the expiry of the probationary period, the fact that the action was brought in the absence of a prior special appeal, within the meaning of Article 8.1.6 of the Staff Rules, is not capable of rendering the action inadmissible.

A member of the European Central Bank staff is entitled to rely on excusable error in order to justify bringing his action without lodging a special appeal within the meaning of Article 8.1.6 of the Staff Rules, where he has been informed by the Deputy Director General of the Directorate General for Human Resources, Budget and Organisation that there was no internal procedure against the decision not to confirm the appointment of that member of staff serving a probationary period and that, therefore, he should bring proceedings directly before the European Union Court.

A member of the European Central Bank staff is not deprived of a legal interest in bringing proceedings for annulment of a decision to terminate his contract on the ground that an annulment of that decision would not necessarily lead to the extension of his contract or a new appointment.

The purpose of the probationary period provided for in Article 2.1.1 of the European Central Bank Staff Rules is to enable the Bank to make a concrete assessment of a candidate’s suitability for a particular post, the manner in which he performs his duties and his efficiency in the service. In that context, an extension of the probationary period may be an appropriate measure for that purpose. Consequently, the existence of doubts as to the suitability of a newly-recruited employee can constitute an ‘exceptional circumstance’ within the meaning of Article 2.1.2 of those Rules, thereby justifying an extension of his probationary period. It follows that the expiry of the probationary period substantially changes the legal situation of the member of staff concerned in so far as, from that date, Article 2.1.3 of those Rules does not apply so far as concerns a member of staff’s suitability to fill a post for which he was recruited and to perform the duties connected with it after the expiry of the probationary period.

In those circumstances, in the absence of any information to the contrary from the administration before the expiry of his probationary period, a member of staff is entitled, from the date of his Probationary Record Report, to a legitimate expectation that the ECB would not adopt a decision to extend his probationary period. While the administration has a broad discretion as regards the issue of whether a candidate meets all the personal and professional requirements needed to fill the post for which he was recruited and to perform the duties connected with it, any individual measure taken in the exercise of that broad discretion, which adversely affects a member of staff and has an impact on his personal legal situation, must comply with the principle of legal certainty to which any EU institution is subject in its staff management. In particular, such a principle precludes an individual measure from taking effect as from a date prior to its adoption. However, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of the addressee of the measure are duly respected.

Therefore, a decision of the Bank extending the probationary period with retroactive effect is unlawful on the grounds of infringement of the principle of legal certainty.

(see paras 61-64, 66)

See:

25 January 1979, 98/78 Racke, para. 20; 13 November 1990, C‑331/88 Fedesa and Others, para. 45; 22 November 2001, C‑110/97 Netherlands v Council, para. 151; 26 May 2005, C‑301/02 P Tralli v ECB, para. 73

1 April 1992, T‑26/91 Kupka-Floridi v ESC, para. 43

26 May 2011, F‑83/09 Kalmár v Europol, para. 92, on appeal before the General Court, Case T‑455/11 P; 13 June 2012, F‑31/10 Guittet v Commission, paras 63 and 64 and the case-law cited