JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

5 March 1997

Case T-96/95

Sébastien Rozand-Lambiotte

v

Commission of the European Communities

‛Probationary officials — Non-establishment at the end of the probationary period — Articles 26, 34 and 43 of the Staff Regulations — Rights of the defence — Inadequate statement of reasons — Duty to have regard for the interests of officials — Manifest error of assessment’

Full text in French II-97

Application for:

annulment of the Commission's decision of 12 July 1994 dismissing the applicant at the end of his probationary period.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant was appointed as a probationary official in the European Parliament and was immediately transferred to the Commission, to Unit 5 (‘Nongovernmental organizations, social adjustment, humanitarian aid, science and technology and health’) of Directorate L (‘Relations with Central and East European Countries’) of Directorate-General I (External Economic Relations) (DG I) (Unit I.L.5), where he took up his duties as a probationary official on 16 June 1993. He was recruited as an administrator and classified in Category A, in Grade 7.

By note dated 3 September 1993, Unit 5 (‘Structure, A and LA staff and seconded national experts’) of Directorate A (‘Personnel’) of Directorate-General IX (Personnel and Administration) (DG IX) (Unit IX. A.5) of the Commission reminded DG I that the applicant and five other probationary officials would have completed one half of their probationary period on 16 October 1993. In that note it is stated: ‘If, during this period, you have noted that there have been difficulties in adjustment, [you are requested] to take the necessary steps to give a warning to officials as regards their conduct or, possibly, to test their capacities in other duties which may be available in your Directorate-General, if the organization of work allows this.’

On 28 September 1993, the Head of Unit I.L.5 sent a note for the attention of the assistant to the Director-General of DG I concerning the evaluation of the applicant's work and conduct, within that unit, now that he was half way through his probationary period. In the same note he remarked that ‘although Mr Rozand-Lambiotte is intellectually adapted to the responsibilities entrusted to him [...], the administrative and hierarchiai aspects seem to cause problems for him. There has, however, been appreciable progress on his part, in particular after a number of discussions with his Head of Section. ’

The report on the applicant at the end of his probationary period was drawn up by the Director of Directorate I.L, after consulting the Head of Unit I.L.5, and was signed on 18 February 1994. In that report the applicant was judged to be ‘inadequate’ as regards comprehension, adaptability and judgment and also as regards initiative, quality of work, speed in performing work, relations in the service and relations with third parties. The reporting officer recommended his dismissal at the end of the probationary period.

The repon was communicated to the applicant on 1 March 1994 and he formulated his observations in writing on 4 March 1994. By note dated 16 March 1994 the Director-General of DG IX informed the applicant that, as the appointing authority, it was his duty, after obtaining die opinion of the Reports Committee, to take a formal decision with regard to the applicant. He mentioned that he had inquired in DG I about the matters complained of and referred to a number of documents which he attached to his note. The Director-General invited the applicant to submit to him any additional observations by 25 March 1994 at the latest and drew his attention to the fact that, until the opinion of the Reports Committee had been given and die final decision adopted, he would remain in his position as a probationary official. By note dated 18 March 1994 the applicant forwarded his observations to the Director-General of DG IX.

At its meeting on 2 May 1994 the Reports Committee decided to hear the applicant and his immediate superiors. Since the applicant could not appear on 5 May 1994, the hearing took place at a meeting on 17 May 1994. On 20 May 1994 the Reports Committee issued its opinion in which, by a majority of three to one, it recommended to the appointing authority that it ‘supported] the proposal of DG I (dismissal)’.

On 5 July 1994 the Reports Committee met in another composition, in which all the members were at least in Grade A 7 and were not also members of the Joint Committee. It again issued, by a majority of three to one, an opinion recommending dismissal.

By decision of 12 July 1994 the appointing authority, following a concurring opinion from the Member of the Commission responsible for personnel and administrative matters, dismissed the applicant with effect from 16 August 1994 (contested decision).

Substance

The first plea in law, alleging breach of the rights of the defence and infringement of Articles 26 and 43 of the Staff Regulations and also inadequate statement of reasons

Infringement of Article 26 of the Staff Regulations and breach of the rights of the defence

Article 26 of the Staff Regulations forms part of Title II, entitled ‘Rights and Obligations of Officials’. It follows both from the purpose and the content of the provisions ofthat title that they are applicable to all officials, including probationary officials. Article 26 is therefore applicable to those officials. It should be pointed out that in its judgment in Kupka-Floridi v Economic and Social Committee the Court of First Instance, without expressly mentioning Article 26, which had not been relied on, has already based itself on its case-law concerning that article in determining whether a decision not to establish a probationary official was unlawful (paragraph 41).

See: T-26/91 Kupka-Floridi y ESC [1992] ECR II-1615, para. 39

The purpose of Article 26 of the Staff Regulations is to assure an official's rights of defence, by preventing decisions taken by the appointing authority and affecting his administrative status and his career from being based on facts concerning his conduct which were not mentioned in his personal file. It follows from that provision that a decision based on such matters is contraiy to the guarantees provided by the Staff Regulations and must be annulled as being the outcome of an unlawful procedure (paragraph 42).

See: 21 /70 Rittwegerv Commission [1971] ECR 7, paras 29 to 41; 88/71 Brasseurv Parliament [1972] ECR 499, para. 11; 233/85 Bonino v Coimnission [1987] ECR 739, para. 11; T-82/89 Marcato v Coimnission [1990] ECR II-735, para. 78

However, although the institution, by virtue of subparagraph (a) of the first paragraph of Article 26 of the Staff Regulations, is required to place on an official's personal file all documents concerning his administrative status and all reports concerning his ability, efficiency and conduct, the mere fact that documents were not placed on the individual's file is not such as to justify the annulment of a decision adversely affecting him if they were in fact brought to his knowledge. It follows from the second paragraph of Article 26 of the Staff Regulations that documents concerning the ability, efficiency or conduct of an official may not be used against him only if they have not been communicated to him beforehand. This is not the case as regards documents which, although brought to his knowledge, have not yet been placed on his personal file. Should the institution not place such documents on the personal file of the official, it would still be open to him to submit a request to that effect under Article 90(1) of the Staff Regulations and, if the request were rejected, an administrative complaint. In no case, however, can the institution be prevented from taking a decision in the interests of the service on the basis of documents previously communicated to the person concerned merely because they have not been placed on his personal file (paragraph 43).

See: C-294/95 v Opta v Commission [1996] ECR I-5863, para. 68

In this case the contested decision is based on the applicant's end-of-probation report and on the opinion of the Reports Committee and also, indirectly, through that opinion, on the information supplied by DG I in support of die assessments contained in the end-of-probation report and attached to the note of 16 March 1994. There can be no denying that both the end-of-probation report and the information supplied by DG I before the adoption of the contested decision were communicated to the applicant. He formulated his observations on the end-of-probation report in his note of 4 March 1994 and, on the abovementioned information, both in his note of 18 March 1994 and before the Reports Committee when he was heard by that committee. It is not in dispute, moreover, that the opinion of the Reports Committee was communicated to him (paragraph 44).

The applicant's submission that, by not communicating to him and by not inserting in his personal file the note of 28 September 1993 containing an assessment of his work and conduct half way through his probationary period, the Commission infringed Article 26 of the Staff Regulations and the applicant's right of defence, is unfounded. Neither the contested decision nor the opinion of the Reports Committee referred to that note in any way whatsoever. Even if the Reports Committee did receive a copy of the note before adopting its opinion, which is not proven, its opinion was not based on that note. It follows that the contested decision itself is not based on that note. In any event, the criticism contained in the note also appears in the end-of-probation report. Consequently, failure to communicate the note did not adversely affect the applicant's right to be heard before the adoption of the contested decision (paragraph 45).

See: Kupka-Floridi v ESC, cited above, para. 39

Breach of the obligation to state reasons

The obligation to state reasons is laid down in the second paragraph of Article 25 of the Staff Regulations. The requirements as regards the statement of reasons in the case of the contested decision must be considered in the light of the particular nature of a decision refusing establishment at the end of the probationary period. In this respect, it is necessary to stress the fundamental difference between a dismissal of this type and a dismissal, in the strict sense, of an established official. Whereas, in the latter case, a meticulous examination of the grounds justifying the termination of an established employment relationship is required, in decisions concerning the establishment of probationary officials, the examination has to do with the question whether or not it is evident from a series of positive considerations that the establishment of the probationary official is in the interests of the service (paragraph 48).

See: 290/82 Tréfois v Court of Justice [1983] ECR 3751, para. 25; 3/84 Patrinos v ESC [1985] ECR 1421, para. 13

The contested decision refers to the applicant's end-of-probation report and to the opinion of the Reports Committee and also, indirectly, through that opinion, to the information supplied by DG I in support of the assessments contained in the end-of-probation report. The decision thus contained a very ample statement of the reasons on which it was based, enabling the applicant fully to understand the reasons for which the Commission had not established him (paragraph 49).

Infringement of Article 43 of the Staff Regulations and of the Guide to Staff Reports

If it is not to be declared inadmissible, a plea in law raised before the Community judicature must previously have been raised in the pre-litigation procedure, so that the appointing authority was in a position to know in sufficient detail what criticism the person concerned was making against the contested decision. Although the matters which were the subject of the complaint may, before the Community judicature, be further developed by the submission of pleas and arguments not necessarily appearing in the complaint but closely relating to those matters, in this case the applicant's arguments under this limb of his plea relate to none of the matters which were the subject of his complaint. The Commission could not therefore have discovered those arguments even by endeavouring to place a broad construction on the complaint (paragraph 51).

See: T-262/94 Baiwir v Commission [1996] ECRSC II-739, paras 40 and 41

The second plea, alleging infringement of Article 34 of the Staff Regulations

By virtue of Article 34(3) of the Staff Regulations, the end-of-probation report must be drawn up one month at the latest before the expiry of the probationary period. In this case, the end-of-probation report was signed on 18 February 1994 by the applicant's Director and Head of Unit and was therefore made on the same day. It follows that it was made three days late. Furthermore, it was not communicated to the applicant until 11 days later (paragraph 67).

See: Kupka-Floridiv ESC, cited above, para. 19

A delay in drawing up the end-of-probation report constitutes an irregularity vis-à-vis the express requirements of the Staff Regulations which, regrettable as it may be, is not. however such as to call in question the validity of the report. Furthermore, since the applicant was enabled to put forward his point of view on his end-of-probation report under proper conditions, the contested decision could not, in any event, be invalidated solely because of its belated communication (paragraph 68).

See: 98/81 Munk v Commission [1982] ECR 1155, para. 8; Kupka-Floridiv ESC, cited above, para. 20

As regards the date on which the opinion of the Reports Committee was adopted, the documents in the case show that the matter was brought before the Committee on 21 April 1994. In accordance with Article 34(3) of the Staff Regulations, it should have adopted its opinion within three weeks, that is to say on 12 May 1994 at the latest. In fact, the opinion was adopted on 5 July 1994. This delay is however not such as adversely to affect the applicant. The purpose of Article 34(3) of the Staff Regulations is to ensure that the decision on establishment can be made before the expiry of the probationary period. In the applicant's case, the decision not to establish him was made on 12 July 1994, with effect from 16 August 1994. He did not thereby suffer any disadvantage, since he was maintained in his employment and remunerated as a probationary official during that period (paragraphs 70 and 71).

See: Tréfois v Court of Justice, cited above, para. 16

As regards the composition of the Reports Committee, it should be noted that the members present when the definitive opinion of 5 July 1994 was adopted were all senior officials of the Commission, as required by Article 10 of Annex II to die Staff Regulations (paragraph 75).

Neither the presence of a member of the Joint Committee at the hearing nor the replacement of a member between the adoption of the opinion of 20 May 1994 and that of die opinion of 5 July 1994 had any impact on the content of the opinion adopted by the Reports Committee. Those facts cannot therefore vitiate die procedure before the Committee (paragraph 78).

Finally, as regards the fact that two of die members of the Reports Committee who were present when the opinion of 5 July 1994 was adopted had not attended the hearing, it should be observed that, although it is indeed desirable that, in accordance with a rule of good administration, the members of the Committee present when the opinion was adopted should all have been present at the hearing, failure to observe this rule cannot however entail the annulment of a decision unless it is established that it could have had a decisive effect on the contested decision, since no provision in the Staff Regulations requires that the Reports Committee maintain die same composition tiiroughout a procedure (paragraph 79).

The third plea, alleging breach of the duty to have regard for the interests of officials

Although the probationary period, which is designed to enable the probationary official's ability and conduct to be assessed, cannot be assimilated to a training period, it is still imperative that the official be given the opportunity, during this period, to demonstrate his qualities. This requirement is indissociable from the concept of a probationary period and is contained by implication in Article 34(3) of the Staff Regulations. In addition, it meets the requirements relating to respect for the general principles of proper administration and equal treatment, and the duty to have regard for the interests of officials, which reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and civil servants. It means in practice that the probationary official must not only be accorded appropriate material conditions but must also be given appropriate instructions and advice in the light of the nature of the duties performed in order to enable him to adapt to the specific needs of the post which he occupies (paragraph 95).

See: 10/55 Mirossevich v High Authority [1956] ECR 333, 342 et seq.; Patrinos v ESC, cited above, paras 20 and 21; Kupka-Floridi v ESC, cited above, para. 44; T-568/93 Correia v Commission [1994] ECRSC 1I-857, para. 34

In this case the probation took place under normal conditions and the applicant received assistance adapted to the requirements of the duties which had been entrusted to him (paragraph 96).

Whilst it is true that a probationary official must receive appropriate instruction and advice from his immediate superiors, it is still the case that every official and probationary official, especially if he is in Category A, must, in the event of doubt, have the sense to ask questions of his superiors and/or his colleagues on the conduct required of him, submit to them his work before sending it out, etc. (paragraph 100).

The administration is under no obligation, at any time whatever, to address a warning to a probationary official that his performance is not giving satisfaction. In any event, the applicant was clearly informed on a number of occasions of the inadequacies of his work. In that respect, it should be pointed out that a probationary official's right to serve his probationary period under proper conditions is sufficiently guaranteed by a verbal warning enabling him to adapt and improve his performance according to the requirements of the service (paragraph 102).

See: Patrinos v ESC, cited above, para. 19; C-17/88 Patriaos v ESC [1989] ECR 4249, summary publication, para. 32; Kupka-Floridi v ESC, cited above, para. 48

Fourth plea, alleging manifest error of assessment

By virtue of the principles laid down by the Staff Regulations governing recruitment and probation, the administration has a wide discretion when it comes to assessing the abilities and performance of probationary officials in accordance with the interest of the service. Accordingly, it is not for the Court of First Instance to substitute its own judgment for that of the institutions in so far as concerns their assessment of the outcome of a probationary period and their appreciation of the suitability of a probationary official for permanent appointment in the Community civil service, unless there has been a manifest error of assessment or misuse of powers (paragraph 112).

See: Munk v Commission, cited above, para. 16; Tréfois v Court of Justice, cited above, para. 29; 347/82 Alvarez v Parliament [1984] ECR 1847, para. 16; 3/84 Patrinos v ESC, cited above, para. 25; C-17/88 Patrinos v ESC, cited above, para. 33; Kupka-Floridi v ESC, cited above, para. 52

It is necessary to bear in mind the difference between a decision not to establish a probationary official and the dismissal, in the strict sense, of an established official. Whereas in the latter case a detailed examination is required of the reasons justifying termination of an established employment relationship, in decisions concerning the establishment of probationary officials the examination is concerned with the question whether or not there is a series of positive considerations showing that the establishment of the official is in the interests of the service (paragraph 113).

See: Tréfois v Court of Justice, cited above, para. 25

In this case the applicant has not shown that the contested decision is vitiated by any manifest error of assessment (paragraph 119).

As regards the alleged breach of the Commission's obligation to provide assistance under Article 24 of the Staff Regulations, that obligation relates to the defence of officials by the institution against the acts of third parties and not against acts emanating from the institution itself, the review of which falls under other provisions of the Staff Regulations (paragraph 120).

See: Munk v >Commission, cited above, para. 21 ; T-64/94 Benecos v Commission [1995] ECRSC II-769, para. 65

Operative part:

The application is dismissed.