JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

15 February 2012

Case F-113/10

AT

v

Education, Audiovisual and Culture Executive Agency

(Civil service — Member of the temporary staff — Appraisal — Definitive nature — Time-limit for bringing an action — Out of time — Early termination of fixed-term employment contract on ground of incompetence — Review by the courts — Manifest error of assessment)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which AT essentially seeks annulment of his evaluation report for the period from 1 June to 31 December 2008 and of the decision of the Education, Audiovisual and Culture Executive Agency (EACEA) of 12 February 2010 terminating his fixed-term employment contract before its due date, as well as an order that the EACEA pay damages for material and non-material harm.

Held: The action is dismissed. The applicant is to pay all the costs.

Summary

1. Officials — Actions — Prior administrative complaint — Time-limits — Point from which time starts to run — Knowledge of the content of a decision by its addressee — Burden of proof — Proof resulting from an email drawn up by the person concerned

(Staff Regulations, Art. 90(2); Conditions of Employment of Other Servants, Art. 46)

2. Officials — Members of the temporary staff — Actions — Action against a decision to terminate a contract — Plea in law based on the unlawfulness of a staff report not challenged in good time — Not permissible

(Staff Regulations, Arts 90 and 91)

3. Officials — Members of the temporary staff — Termination of a fixed-term employment contract on the ground of incompetence — Administration’s discretion — Scope — Manifest error of assessment — Burden of proof

1. According to Article 90(2) of the Staff Regulations, applicable to members of the temporary staff under Article 46 of the Conditions of Employment of Other Servants, complaints must be lodged within three months starting on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person.

It is however for the party who relies on the expiry of the time-limit to adduce proof of the date on which time began to run. If such evidence cannot be obtained simply from circumstantial factors suggesting that the applicant received the decision on an earlier date than he claims, evidence of the point at which he had knowledge of the decision may be obtained from circumstances other than formal notification of the decision. In particular, it may be obtained from an email from the applicant from which it is undoubtedly clear that he had had effective knowledge of the decision before the date alleged.

(see paras 38, 39)

See:

7 October 2009, F-101/08 Pappas v Commission, paras 43, 44 and 51 to 53

2. To allow a member of the temporary staff who has allowed the mandatory period laid down in Articles 90 and 91 of the Staff Regulations to expire without challenging his staff report to call that report into question incidentally in an action brought against a decision terminating a contract for the adoption of which that report was a preparatory step would be incompatible with the principles governing the legal remedies established by the Staff Regulations and would impair the stability of that system and the principle of legal certainty by which it is guided.

(see para. 70)

See:

29 February 1996, T-547/93 Lopes v Court of Justice, para. 128; 27 September 2006, T-156/05 Lantzoni v Court of Justice, para. 103

3. An error of assessment is manifest where it may easily be detected in the light of the criteria to which the legislature intended the adoption of the administration’s decision against which an action has been brought to be subject. In order to prove that such an error exists, it is for the applicant to adduce sufficient evidence to make the findings of the administration implausible. That evidence is therefore not sufficient if the contested assessment of the administration may be accepted as true or valid. That is particularly so where the decision at issue is vitiated by errors of assessment which, taken together, are of only minor significance unlikely to have influenced the administration.

In the context of the dismissal of a member of the temporary staff for incompetence, the evidence will be deemed insufficient particularly where the decision terminating the staff member’s contract was approved unanimously, if the decision was never challenged, if the staff member was constantly and attentively managed, monitored and assessed by his superiors, and if it was found that his efficiency and ability remained inadequate and that he had difficulty in sustaining the level of cooperation required by his duties. Furthermore, if the staff member can reasonably claim that he was unable to perform his duties satisfactorily because of psychological harassment, or contend that the perpetrator of the psychological harassment he suffered took part in the drawing up or adoption of the decision relating to him, in order to harm him, he must in any event supply documents substantiating his claims.

(see paras 73-77, 82, 84)

See:

23 November 1978, 56/77 Agence européenne d’intérims v Commission, para. 20

8 May 1996, T-19/95 Adia interim v Commission, para. 49; 12 December 1996, T-380/94 AIUFFASS and AKT v Commission, para. 59; 12 February 2008, T-289/03 BUPA and Others v Commission, para. 221; 21 May 2008, T-495/04 Belfass v Council, para. 63; 6 July 2000, T-139/99 AICS v Parliament, para. 39

24 February 2010, F-2/09 Menghi v ENISA, paras 70 and 71; 24 March 2011, F-104/09 Canga Fano v Council, para. 35