JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Single Judge)

15 October 2014

Case F‑15/14

Evert Anton De Bruin

v

European Parliament

(Civil service — Probationary official — Article 34 of the Staff Regulations — Probation report establishing the inadequacy of the probationary official — Extension of the probationary period — Dismissal at the end of the probationary period — Grounds for dismissal — Performance — Promptness with which tasks performed — Manifest errors of assessment — Procedural irregularities — Period given to the Reports Committee to deliver its opinion)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr De Bruin seeks, principally, annulment of the decision of the appointing authority of the European Parliament (‘the appointing authority’) of 12 April 2013 dismissing him at the end of his probationary period and, consequently, his reinstatement within the Parliament, as well as, in the alternative, should his reinstatement be impossible, an order that the defendant institution pay him the sum of EUR 45 000, plus default interest, in compensation for the harm he considers he has suffered as a result of his allegedly unlawful dismissal.

Held: The action is dismissed. Mr De Bruin is to bear his own costs and is ordered to pay the costs incurred by the European Parliament.

Summary

1. Actions brought by officials — Prior administrative complaint — Rejection decision — Taking into account of the statement of reasons contained in the decision

(Staff Regulations, Arts 90 and 91)

2. Officials — Recruitment — Probationary period — Decision not to establish a probationary official — Decision to dismiss an established official — Difference in legal nature — Respective assessment criteria to be applied

(Staff Regulations, Art. 34)

3. Officials — Recruitment — Probationary period — Assessment of results — Assessment of the abilities of a probationary official — Fact of having passed competition not capable of binding the administration in its assessment

(Staff Regulations, Art. 34)

4. Officials — Recruitment — Probationary period — Assessment of results — Assessment of the abilities of a probationary official — Administration’s discretion — Probationary translator

(Staff Regulations, Art. 34)

5. Officials — Post — Post of translator — Abilities required in terms of meeting translation deadlines

6. Officials — Recruitment — Probationary period — Conditions under which probationary period progressed — Warning

(Staff Regulations, Art. 34)

7. Officials — Recruitment — Probationary period — Report at the end of the probationary period — Drawing up of a second report — Report covering a period of three months — Lawfulness

(Staff Regulations, Art. 34)

1. In view of the evolving nature of the pre-litigation procedure, the statement of reasons contained in the decision rejecting a complaint must also be taken into account in the review of legality of the original act adversely affecting an official, since that statement of reasons is deemed to supplement that act.

(see para. 35)

See:

judgment in Mocová v Commission, F‑41/11, EU:F:2012:82, para. 21

2. A successful candidate in a competition who is engaged as a probationary official may be appointed as an established official only if he passes the probationary period provided for in Article 34 of the Staff Regulations, and it is for the appointing authority to provide him with appropriate material conditions and supervision in the performance of his duties.

Where, at the end of his probationary period, a probationary official has proved obviously inadequate within the meaning of Article 34(2) of the Staff Regulations, or where his work has not proved adequate for establishment in his post within the meaning of the third subparagraph of Article 34(3) of the Staff Regulations, he must be dismissed. Such a decision not to establish a probationer as an official is, by its very nature, different from ‘dismissal’ in the strict sense of a person who has been appointed an established official. While in the latter case the grounds justifying the termination of the employment of an established official must be examined in detail, in decisions on the establishment of probationary officials, the examination must be comprehensive and must relate to whether or not there are a number of positive and/or negative considerations which came to light in the course of the probationary period, showing that establishment of the probationary official is, or is not, in the interests of the service.

(see paras 42, 45)

See:

judgment in Tréfois v Court of Justice, 290/82, EU:C:1983:334, paras 24 and 25

judgment in BW v Commission, F‑2/11, EU:F:2012:194, para. 78

3. Neither the decision of a competition selection board to include a person on a reserve list or in a particular merit group on that list, nor the publication of that list in the Official Journal of the European Union is a measure entitling him to be appointed as an official. The selection board’s decision adopting the reserve list does not confer on successful candidates a right to be appointed, but only eligibility to be appointed.

In that regard, in a situation where a successful candidate is appointed as a probationary official, he cannot rely, against a negative probation report, on the fact that he passed the tests in the competition in order to demonstrate the allegedly inconsistent or unconvincing nature of the appointing authority’s assessment of his performance under normal working conditions in the institution. At the end of the probationary period the appointing authority decides whether to appoint the probationer as an established official without being bound by the assessments made when the person was recruited or by the merit group in which he is included on the reserve list, but solely by judging, on the basis of an overall assessment of his qualities and conduct, whether the probationary official deserves to be established in the post to which he aspires.

(see paras 53, 54)

See:

judgment in Luxem v Commission, T‑306/04, EU:T:2005:326, para. 22 and the case-law cited therein

judgment in Da Silva Pinto Branco v Court of Justice, F‑52/09, EU:F:2010:98, para. 59

4. The appointing authority’s broad discretion in assessing the abilities and performance of a probationary official in accordance with the interest of the service means precisely that it is for each institution to define the level of quality and speed required of its officials in their performance, particularly in an area such as translation, subject always to the provisions of the Staff Regulations. A supposedly independent third party cannot therefore be assigned to assume the role of the institution in defining the quality standard to be expected of a probationary official.

As regards the assessment of the results of a probationary official appointed to a post of translator, the appointing authority cannot be bound by observations issued by a private company, albeit one specialising in translation. Such an entity, which has, in principle, no understanding of the interests of the European civil service, cannot substitute its own assessment of what the quality requirements of a Union institution must be for that of the institution itself. However, the examination of the probationer’s translations requested by the Reports Committee may lawfully be relied on by the institution concerned since it comes under the exercise of the appointing authority’s power of assessment in that field.

Furthermore, even considering that there may be several possible ways of translating the same text, certain repeated errors, such as punctuation or grammatical mistakes, and certain oversights cannot, by their very nature, be regarded as aspects of the translator’s freedom to choose the translation style, which is inherent in every translation.

Finally, as regards the automatic involvement of revisers in the translation process, their existence has no effect on the level of quality expected of the original translations submitted to them for revision. Such an argument, first, would be tantamount to accepting that probationary officials may, despite a mediocre performance, be established as translators on the ground that revisers can rectify their inadequacies and, second, disregards the fact that every translator, particularly after the probationary period as an established official, is generally expected also to be able, in the medium term, to translate texts which will not all necessarily be revised.

(see paras 57, 59-61)

5. As an administrator, a translator must be capable of realising when a translation deadline for a document which he has the task of translating is about to expire, and therefore he cannot hide behind an alleged mistake made by a person in the assistants category before the document reached him.

(see para. 72)

6. A probationary official’s right to serve his probationary period under proper conditions is guaranteed by a verbal or written warning enabling him, in good time, to adapt and improve his performance according to the requirements of the service.

In that regard, such a warning would become nugatory if it were given too late in the probationary period, since it would no longer enable the person concerned to adapt the quality and speed of his performance in order to demonstrate, at the end of the probationary period, professional abilities capable of justifying his establishment.

Consequently, the appointing authority’s action in warning a probationary official two months after entering the service is entirely consistent with its obligations under the principle of sound administration and its duty to have regard for the welfare of staff.

(see paras 77-79)

See:

judgment in Rozand-Lambiotte v Commission, T‑96/95, EU:T:1997:25, paras 100 and 102

judgments in Doktor v Council, F‑73/07, EU:F:2008:42, para. 36; and Giannini v Commission, F‑49/08, EU:F:2009:76, para. 84

7. The second probation report covering the professional performance of a probationary official over a period of almost three months between the date of adoption of the appointing authority’s decision to extend his probationary period and the date of that second report, that period is sufficient to ascertain whether he has improved his professional performance in order to be able to seek to be established.

Moreover, if the Reports Committee considers that that period prevents it from drafting an opinion in accordance with the requirements of the Staff Regulations, it may request further information or more time.

(see paras 96, 98)