JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

30 November 1994

Case T-568/93

Helena Correia

V

Commission of the European Communities

‛Probationer members of the temporary staff — Incompetence — Dismissal’

Full text in French II-857

Application for:

annulment of the Commission's decision of 25 February 1993 dismissing the applicant on the expiry of her probationary period.

Decision:

Annulment.

Abstract of the Judgment

The applicant, who had been successful in Open Competition COM/C/655, applied for a notified vacancy as secretary to the ESPRIT conference. After a two-hour interview with the Head of Unit A2 in DG XIII, she was recruited on 11 May 1992 as a probationary member of the temporary staff ‘as a typist’ in Grade C 5, Step 1. She started her probationary period on 1 June 1992.

On 16 October 1992, the head of the applicant's unit drew up a draft report containing several criticisms of her performance. The report was neither sent to the applicant nor placed on her personal file.

By a memorandum of 9 November 1992, the applicant was informed by the head of the ‘Personnel and Administration’ Unit of DG XIII that the draft report submitted by her superiors was negative and did not warrant a recommendation that she remain in service as a member of the temporary staff. The memorandum did, however, recommend that her probationary period be extended for three months and that she be assigned to another unit, A6.

By a memorandum of 2 February 1993, referring to the negative draft report drawn up by the head of Unit A2, the applicant's new superior pointed out a number of weaknesses in her work, informing her that, if her performance in those areas did not improve, she would be unable to issue a favourable opinion at the expiry of her probationary period.

On 16 February 1993, the applicant received a final report at the expiry of her probationary period, which contained negative assessments. The report did, however, state that an effort to improve had been noted since the warning of 2 February 1993, although, since the improvement concerned only a limited period in relation to the eight months of the probationary period, it did not change the overall impression.

On 22 February 1993 the applicant submitted observations on the report at the expiry of her probationary period and, on this occasion, criticized in detail the conditions in which she had had to serve her probationary period.

By letter of 25 February 1993, she was dismissed in accordance with Article 14(2) of the Conditions of Employment of Other Servants.

Substance

In the Court's opinion, the applicant's three pleas in law - manifest error of assessment, breach of the principles of die protection of legitimate expectations and sound administration and of the rights of the defence, and infringement of Articles 25 and 26 of the Staff Regulations and Article 14 of the Conditions of Employment of Other Servants - must be examined together (paragraphs 18 and 33).

A decision of dismissal at Üte expiry of a probationary period must be annulled if the applicant has not had the opportunity to serve the probationary period under normal conditions (paragraph 34).

See: 3/84 Patrinos v Economic and Social Committee [1985] ECR 1421, paras 20 to 24

The Court finds, first from examining the applicant's contract of employment and, secondly, from the job description for the post she held, diat she was called upon to perform tasks which did not correspond to die grade and step assigned to her. Although the applicant was recruited ‘as a typist’, the post she had to occupy implied a high level of responsibility. The Commission should therefore have provided her with special training and supervision during her probationary period, to ensure that she was enabled to perform the tasks assigned to her (paragraphs 36 to 38).

It is undisputed that, during die first part of her probationary period, die applicant did not receive training and supervision appropriate to her tasks and to her qualifications, which were or should have been known to her superiors by reason of the two-hour interview which preceded her recruitment (paragraph 39).

The applicant's superiors knew that advanced knowledge of English and data processing were necessary for the performance of her duties. They also knew that the competition in which she had been successful was for typists, and must have known, following the interviews which proceeded her recruitment, that she had only limited knowledge of English and data processing (paragraph 40).

Although the applicant was invited to attend courses in English and data processing, it is undisputed, first, that she was unable to take English lessons before the end of September and, secondly, that it was not always possible for her to attend them, due to the requirements of the service. It was therefore wrong for her linguistic weaknesses to be taken into account as a reason for finding her performance on probation insufficient (paragraphs 42 and 44).

Moreover, the Commission cannot claim that it was the applicant's frequent absences which prevented her from being trained in data processing, since her first absence dates from 19 November 1992, more than five and a half months after she took up her duties, whereas, for at least the first month after she joined, she had enough time at her disposal for her superiors to ensure that she was sufficiently trained (paragraph 45).

Therefore, during the first part of her probationary period, which lasted from 1 June until November 1992, the applicant was not given the opportunity to serve her probationary period under normal conditions, having regard to the circumstances of her recruitment (paragraph 46).

As for the second part of the probationary period, the Court considers that, in view of the applicant's numerous absences for holiday or sickness in December and January, the memorandum from her superior of 2 February, informing her of the inadequacy of her performance, was based on an insufficient number of normal working days to justify a decision of dismissal at the expiry of the probationary period. The final report notes an improvement after that memorandum, while considering that that improvement over a limited period did not change the overall impression (paragraphs 48 and 49).

The Court therefore finds that the second part of the probationary period is not sufficient to justify the decision of dismissal, and that the applicant did not have an opportunity to serve her probationary period under normal conditions (paragraphs 50 and 51).

To that first ground for annulling the decision to dismiss the applicant, a second must be added, namely that that decision was taken in breach of the rights of the defence (paragraph 52).

The reasons given for the contested decision refer to the final report of 16 February 1993, which refers to die first part of the probationary period served by the applicant. For that first part of the period, however, the only report in existence is the negative draft report of 16 October 1992, which the Court finds was never communicated to the applicant, either directly or indirectly by placing it on her personal file. When examined as a witness, moreover, die author of the final report acknowledged that her assessment of die first part of the probationary period was based in particular on the letter of 9 November 1992, which was exclusively based on the negative draft report (paragraphs 53 and 54).

That draft report should have been communicated to the applicant, at the latest, at the time when the final report on her probationary period was communicated to her, since the latter could be understood only in the light of the former (paragraph 56).

That infringement of the applicant's rights of defence is particularly significant if account is taken of the fact that the final report notes an improvement in her work, whilst holding that improvement to be insufficient precisely because it relates to a period of no consequence in comparison with the probationary period as a whole, which is essentially covered (June to November) by the negative draft report which was not communicated to the applicant (paragraph 57).

To that infringement of the rights of the defence there must be added a second, namely the fact that, during the proceedings before the Court, the Commission submitted for the first time a number of complaints against the applicant which did not appear in the final report which preceded the adoption of the contested decision (paragraphs 58 to 60).

It follows from the foregoing considerations, taken as a whole, that the decision to dismiss the applicant must be annulled, firstly because of the abnormal conditions under which she served her probationary period, and secondly because of the infringement of her rights of defence resulting from the failure to communicate to her the negative draft report of 16 October 1992 and the belated allegations made against her by the Commission (paragraph 62).

Operative part:

The Commission's decision of 25 February 1993 dismissing the applicant is annulled.