JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

18 October 2007

Case F-112/06

Erika Krcova

v

Court of Justice of the European Communities

(Civil service – Probationary official – Article 34 of the Staff Regulations – Dismissal of a probationary official – Discretion – Duty to state reasons – Duty to have regard for the welfare of officials – Principle of sound administration )

Application: brought under Articles 236 EC and 152 EA, in which Ms Krcova seeks annulment of the Court of Justice decision of 17 October 2005 dismissing her at the end of her probationary period, and, in so far as is necessary, annulment of the Court’s decision of 16 September 2005 extending her probationary period for the second time, for six months from 1 August 2005, together with her third probation report dated 12 September 2005, which concluded that it was not possible to propose to the appointing authority that she be appointed.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials – Recruitment – Probationary period – Report drawn up at the end of the probationary period – Delay in drawing up report

(Staff Regulations, Art. 34)

2. Officials – Recruitment – Probationary period – Purpose – Conditions

(Staff Regulations, Art. 34)

3. Officials – Recruitment – Probationary period – Assessment of results

(Staff Regulations, Art. 34)

4. Officials – Recruitment – Probationary period – Negative assessment of abilities of the person concerned – Extension of probationary period and reassignment

(Staff Regulations, Art. 34)

1. As long as a probationary official has been given the opportunity to state his opinion on the assessments given in his probation report, a delay in drawing up that report or in consulting the Joint Reports Committee, however regrettable the irregularity which it constitutes in the light of the requirements laid down in Article 34 of the Staff Regulations, is not such as to call into question its validity or, where appropriate, the validity of the decision to dismiss that official.

(see para. 35)

See:

175/80 Tither v Commission [1981] ECR 2345, para. 13; 98/81 Munk v Commission [1982] ECR 1155, para. 8

T-26/91 Kupka-Floridi v ESC [1992] ECR II‑1615, para. 20; T‑96/95 Rozand-Lambiotte v Commission [1997] ECR-SC I‑A‑35 and II‑97, para. 68; T-98/98 Trigari-Venturin v Translation Centre [1999] ECR-SC I‑A‑159 and II‑821, para. 74

2. Although the probationary period provided for in Article 34 of the Staff Regulations cannot be assimilated to a training period, it is nevertheless imperative that the official be given the opportunity, during this period, to demonstrate his qualities. This requirement meets the requirements 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.

(see para. 48)

See:

10/55 Mirossevich v High Authority [1956] ECR 333; 3/84 Patrinos v ESC [1985] ECR 1421, paras 20 and 21

Kupka-Floridi v ESC, para. 44; T-568/93 Correia v Commission [1994] ECR-SC I‑A‑271 and II‑857, para. 34; Rozand-Lambiotte v Commission, para. 95; T‑373/00, T‑27/01, T‑56/01 and T‑69/01 Tralli v ECB [2002] ECR-SC I‑A‑97 and II‑453, para. 69

3. 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 Tribunal to substitute its own judgment for that of the institutions in so far as concerns the outcome of a probationary period and the suitability of a probationary official for permanent appointment in the Community civil service, its review being confined to establishing that there has been no manifest error of assessment or misuse of powers.

(see para. 62)

See:

Munk v Commission, para. 16; 290/82 Tréfois v Court of Justice [1983] ECR 3751, para. 29; 347/82 Alvarez v Parliament [1984] ECR 1847, para. 16; Patrinos v ESC, para. 25; C-17/88 Patrinos v ESC [1989] ECR 4249, para. 33

Kupka-Floridi v ESC, para. 52; Rozand-Lambiotte v Commission, para. 112; Tralli v ECB, para. 76

4. The procedure laid down in Article 34 of the Staff Regulations is not intended to give a probationary official the opportunity to state his views on the decision to be taken as a result of his receiving a negative probation report. Moreover, the terms of the third subparagraph of Article 34(3) of the Staff Regulations by no means suggest that if a probationer’s work has not proved adequate for him to be established as an official, the appointing authority is under an obligation to consider extending his probationary period and reassigning him to a different department. On the contrary, the use of the words ‘in exceptional circumstances’ in that provision clearly shows that the appointing authority has a wide discretion in determining, according to the facts of the case and the individual circumstances, whether it is desirable to extend the probationary period. That is particularly true, where the probation period is extended, of the reassignment itself, which is presented merely as a possibility, given that the total duration of the probation must not under any circumstances exceed 15 months, in accordance with Article 34(4).

(see paras 75, 77)

See:

10/72 and 47/72 Di Pillo v Commission [1973] ECR 763, para. 16