EN
ReportsofCases
ECLI:EU:F:2010 :98 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL (First Ch amber)
14 September 2010
Case F-52/09
Delfina Da Silva Pinto Branco
v
Court of Justice of the European Un ion
(Civil service — Officials — Recruitment — Probationary official — Dismissal at the end of the 
probationary period — Rights of the defence — Evaluation o f abilities — Judicial review)
Application:brought u nder Articles 236 E C and 152 E A, in which M s Da Silva Pinto Branco seeks, 
principally, annulment of th e decision o f th e Court of Justice of 24 October 2008 
dismissing her at the end of her probationary pe riod, as well as an order th at th e 
institution c ompe nsate her for th e non -pecuniary losses suffered as a r esult of that 
dismissal.
Held: The action is dismissed. The applicant is ordered to pay all the costs.
Summ ary
1. Officials — Actions — Act adversely affecting an official — Definition — Preparatory act — 
Measures taken during an official’s probationary period — Not included
(Staff Regulations, Arts 34, 90 a nd 91)
2. Officials — Recruitment — Probationary period — Dismissal at the end of the probationary period — 
Request that the probationary official and the assess or be heard — Refusal — Infringement of the 
principle of observance of the rights of the de fence, the duty to have due regard to the welfare of 
officials and the duty to provide a ssistance — None
(Staff Regulations, Arts 24 a nd 34(3))
3. Officials — Recruitment — Probationary period — Assess ment of outcome — Assess ment of the 
suitability of a p robationary official — Judicial review — Limits
(Staff Regulations, Art. 34)
1. Only me asures which give ri se to binding legal effects capable of dir ectly and imme diately affecting 
the applicant’s interests by significantly altering his legal position c onstitute acts ad versely affecting 
him. In th e case of acts or decisions ad opted by a p rocedure involving several stages, in particular 
where they are the culmination o f an internal procedure, in principle, an act is open to review on ly if 
it is a me asure definitively laying down th e position o f the institution a t the conclusion o f that 
procedure, and no t a p rovisional me asure intended to pave th e way for that final decision. Thus in 
staff cases me asures whose purpose is to prepare a d ecision ar e no t acts ad versely affecting officials
2 ECLI:EU:F:2010 :98SUMM ARY—CASEF-52/09
DA SILVAPINTO BRANCOvCOURT O FJUSTICE
 within th e me aning of Article 90(2) of the Staff Regulations. That is true of the probationary reports 
and th e opinion o f the Reports Committee on w hich a d ecision t o dismiss a p robationary official are 
based.
(see paras 32-34)
See:
T-69/92 S eghers v C ouncil [1993 ] ECR II- 651, para. 28; T-324/02 M cAuley v C ouncil [2003 ] ECR-SC I- A-337 
and II-1657 , para. 28; T-394/03 A ngeletti v C omm ission [2006 ] ECR-SC I- A-2-95 a nd II-A-2-441, para. 36; T-95/04 
Lavagnoli v C omm ission [2006 ] ECR-SC I-A-2-121 a nd II-A-2-569, para. 33
F-27/06 a nd F-75/06 Lo faro v C omm ission [2007 ] ECR-SC I-A-1-155 a nd II-A-1-835, para. 58
2. As far as concerns the dismissal of a p robationary official, the appointing authority’s refusal to grant 
a request to hear th e official and th e assessor cannot be regarded as a b reach of the principle of 
observance of the rights of the defence, the principle th at the parties should be heard, the duty to 
have regard f or the welfare of officials or Article 24 o f the Staff Regulations.
The principle of observance of the rights of the defence, laid d own by Article 34(3) of the Staff 
Regulations, does no t involve a g eneral obligation for the appointing authority to hear a p robationary 
official before taking a d ecision t o di smiss h im, eve n if the Reports Committee s tates that this is 
desirable.
The duty of the administration to have regard f or the interests of its officials, which reflects the balance 
of the rights and obligations established by the Staff Regulations in the relationship between the official 
authority and civil servants, implies that when th e ad ministration t akes a d ecision c oncerning th e 
situation o f an official, it should take into consideration a ll th e factors which m ay affect its decision 
and that when doing so it should take into account not only the interests of the service but also those 
of the official concerned. That applies where it has probationary reports on a n official and the official’s 
observations on th ose reports, in other words information r elating, on th e on e hand, to the interests of 
the service and, on th e other, to the interests of the probationary official concerned.
Lastly, the administration’s duty to provide assistance laid d own in Article 24 o f the Staff Regulations is 
concerned w ith th e defence of officials against acts of third p arties and no t against acts of the 
administration itself, the review of which falls under other provisions of the Staff Regulations.
(see paras 50-53)
See:
10/72 a nd 47/72 d i Pillo v C omm ission [1973 ] ECR 763, para. 16; 417/85 M aurissen v C ourt of Auditors [1987 ] 
ECR 551, para. 12
T-96/95 R ozand-Lambiotte v C omm ission [1997 ] ECR-SC I-A-35 a nd II-97, para. 120
3. The purpose of the probationary pe riod is to enable th e ad ministration t o m ake a c oncrete 
assessment of the probationary official’s suitability for a p articular p ost, th e m anner in w hich he 
performs his duties and his efficiency in th e service. At the end of the probationary pe riod th e 
administration m ust be in a p osition t o determine, without being bound by the assessments made at 
the time o f recruitment, whether the probationary official deserves to be established in th e post to 
which he aspires. That decision involves a c omprehensive assessment of the qualities and conduct of 
the probationary official, taking account of both th e positive a nd negative factors revealed in th e 
course of the probationary period.
ECLI:EU:F:2010 :98 3SUMM ARY—CASEF-52/09
DA SILVAPINTO BRANCOvCOURT O FJUSTICE
The ad ministration h as a w ide discretion w hen it comes to assessing the abilities and pe rformance of 
probationary officials in accordance with th e interest of the service. Accordingly, it is no t for the 
Tribunal to substitute its own judgment for that of the institutions in so far as concerns the outcome 
of a p robationary period and the suitability of a p robationary official for permanent appointment in the 
European Union c ivil service, its review being confined to establishing that there has been no m anifest 
error of assessment or misuse of powers.
(see paras 59, 61)
See:
Rozand-Lambiotte v C omm ission, para. 112
290/82 T réfois v C ourt of Justice [1983 ] ECR 3751 , para. 24