JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

1 March 2016

Antonio Pujante Cuadrupani

v

European GNSS Agency (GSA)

‛Civil service — Recruitment — Temporary staff — Dismissal at the end of the probationary period — Action for annulment brought against both the dismissal decision and the confirmatory dismissal decision — Whether admissible — Article 14(3) of the CEOS — Misuse of powers and abuse of process — Manifest error of assessment — Rights of the defence — Consultation of the Joint Evaluation Committee — Opinion based on examining written material without hearing the applicant — No infringement of the rights of the defence’

Application:

under Article 270 TFEU, in which Mr Pujante Cuadrupani seeks, first, annulment of the report drawn up at the end of his probationary period at the European GNSS Agency (GSA) and, second, annulment of the decision of the Executive Director of the GSA of 15 October 2014 dismissing him at the end of his probationary period, as well as annulment of the decision of the Chairperson of the GSA Administrative Board of 30 October 2014 confirming that dismissal decision.

Held:

The action is dismissed. Mr Pujante Cuadrupani is to bear his own costs and to pay the costs incurred by the European GNSS Agency.

Summary

Officials — Temporary staff — Principles — Rights of the defence — Scope — Obligation to hear the person concerned before adopting a decision to dismiss him — Observance of the rights of the defence in connection with dismissal at the end of the probationary period

Only acts or measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position can be regarded as acts adversely affecting him. In the case of acts or decisions adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is only those measures which definitively determine the position of the institution upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare the final decision. Acts preparatory to a decision do not adversely affect officials and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure. In that regard, claims for the annulment of reports at the end of the probationary period on which a decision to dismiss a member of the temporary staff is based are inadmissible. Although the decision to dismiss a staff member constitutes an act adversely affecting him in that it definitively determines the administration’s position and thereby affects his interests directly and immediately, the same does not apply to the report at the end of the probationary period, which is merely a preparatory measure for the dismissal decision. (see paras 43-45) See: Judgments of 17 May 2006 in Lavagnoli v Commission, T‑95/04, EU:T:2006:131, para. 33, and 16 March 2009 in R v Commission, T‑156/08 P, EU:T:2009:69, para. 49 and the case-law cited therein Judgment of 2 March 2010 in Doktor v Council, T‑248/08 P, EU:T:2010:57, para. 81 Order of 24 May 2007 in Lofaro v Commission, F‑27/06 and F‑75/06, EU:F:2007:89, para. 59

An action by an official or other staff member for the annulment of a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned for lack of any challenge by legal action within the prescribed time-limits. Otherwise, that person is entitled to contest either the confirmed decision or the confirmatory decision or both. (see para. 52) See: Judgments of 27 October 1994 in Chavane de Dalmassy and Others v Commission, T‑64/92, EU:T:1994:260, para. 25 and 25 October 2005 in Dedeu i Fontcuberta v Commission, T‑299/02, EU:T:2005:370, para. 22 Judgment of 5 May 2009 in Simões Dos Santos v OHIM, F‑27/08, EU:F:2009:44, para. 73, not set aside on that point by the judgment of 10 November 2010 in OHIM v Simões Dos Santos, T‑260/09 P, EU:T:2010:461

The administration has a wide discretion when it comes to assessing the abilities and performance of an official or other member of staff during his probationary period, and it is not for the Civil Service Tribunal to substitute its own assessment for that of the institutions in so far as concerns the outcome of a probationary period and the suitability of a candidate for permanent appointment or confirmation of contract in the European Union civil service, its review being confined to establishing that there has been no manifest error of assessment or misuse of powers. An error of assessment by the administration may only be characterised as manifest when it is easily recognisable and can be readily detected, having regard to the criteria to which the legislature intended to make the adoption of the administration’s decision subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error of assessment must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid. (see paras 84-86) See: Judgments of 24 March 2011 in Canga Fano v Council, F‑104/09, EU:F:2011:29, para. 35, confirmed on appeal by the judgment of 16 May 2013 in Canga Fano v Council, T‑281/11 P, EU:T:2013:252, para. 127; 29 September 2011 in AJ v Commission, F‑80/10, EU:F:2011:172, para. 35 and the case-law cited therein, and 12 June 2013 in Bogusz v Frontex, F‑5/12, EU:F:2013:75, para. 72

Where it is required to adopt a decision confirming the contract of a probationary member of the temporary staff, the administration must conduct a comprehensive examination of whether or not there are a number of positive considerations which came to light in the course of the probationary period showing that confirmation of the probationary staff member’s contract is in the interests of the service. Thus, the examination involves weighing up any positive and negative considerations which came to light during the probationary period in order to ascertain whether or not confirmation of the contract is in the interests of the service. (see para. 97) See: Judgment of 18 October 2007 in Krcova v Court of Justice, F‑112/06, EU:F:2007:178, para. 61, not set aside on that point by the judgment of 8 June 2009 in Krcova v Court of Justice, T‑498/07 P, EU:T:2009:178