JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

2 July 2009

Case F-49/08

Massimo Giannini

v

Commission of the European Communities

(Civil service – Contract staff – Dismissal at the end of the probationary period – Probationary period conducted in improper conditions – Irregularities in the assessment procedure – Travel expenses – Delegation to a third country)

Application: brought under Articles 236 EC and 152 EA, in which Mr Giannini seeks: annulment of the Commission’s decision dismissing him, communicated on 10 July 2007, and, so far as necessary, annulment of the rejection of his complaint against that decision; consequently, an order for the Commission to pay all the pecuniary rights linked to the continuance of his contract; in any event, annulment of the decisions of 27 July 2007 and 20 September 2007 to withhold EUR 5 218.22 from his remuneration for August 2007 and, consequently, reimbursement of that sum plus default interest; in any event, annulment of the decision of 28 August 2007 to limit the installation allowance to one third of the sum received in November 2006 and to recover the other two thirds, that is EUR 4 278.50, from the remuneration of February 2008 and, consequently, reimbursement of that sum plus default interest; the allocation of damages and interest to compensate for the material and non-material harm suffered, provisionally valued at EUR 200 000.

Held: The Commission’s decision of 27 July 2007 ordering the recovery of one third of the sum covering the travel expenses allocated to the applicant for 2007 is annulled. The Commission is to pay the applicant the amount wrongly withheld pursuant to the decision of 27 July 2007, except in so far as it concerns the travel expenses of the applicant’s family, together with default interest from the date when the amount was withheld until the date of the actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by 2 points. There is no need to adjudicate on the claims for annulment of the decision of 28 August 2007 by which the Commission limited the applicant’s installation allowance to one third of the sum received in November 2006. The remainder of the application is dismissed. The applicant is to bear his own costs and to pay three quarters of the Commission’s costs. The Commission is to bear one quarter of its own costs.

Summary

1. Officials – Actions – Unlimited jurisdiction – Disputes of a financial character within the meaning of Article 91(1) of the Staff Regulations – Definition

(Staff Regulations, Art. 91(1))

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

(Conditions of Employment of Other Servants, Art. 84)

3. Officials – Contract staff – Classification – Supervision of a member of the contract staff in function group IV by an official in function group AST

(Conditions of Employment of Other Servants, Art. 80(2))

4. Officials – Recruitment – Probationary period – Conditions – Warning

(Staff Regulations, Art. 34)

5. Procedure – Application initiating proceedings – Formal requirements

(Statute of the Court of Justice, Art. 21, first para., and Annex I, Art. 7(3); Rules of Procedure of the Court of First Instance, Art. 44(1)(c)); Rules of Procedure of the Civil Service Tribunal, Art. 35(1))

6. Officials – Contract staff – Recruitment – Probationary period – Assessment of results

(Conditions of Employment of Other Servants, Art. 84(3))

7. Officials – Equal treatment – Established officials and probationary officials

(Staff Regulations, Art. 43; Conditions of Employment of Other Servants, Art. 84)

8. Officials – Contract staff – Recruitment – Probationary period – Report at the end of the probationary period – Scope and content

(Staff Regulations, Art. 25; Conditions of Employment of Other Servants, Arts 11, first para., and 81)

9. Officials – Contract staff – Recruitment – Probationary period – Report at the end of the probationary period

(Staff Regulations, Art. 25; Conditions of Employment of Other Servants, Arts 11, first para., 81 and 84(3))

10. Officials – Contract staff – Recruitment – Probationary period – Decision to dismiss

(Staff Regulations, Art. 25; Conditions of Employment of Other Servants, Arts 11, first para., and 81)

11. Officials – Contract staff – Recruitment – Probationary period – Negative assessment of the probationer’s abilities – Extension of probationary period

(Conditions of Employment of Other Servants, Art. 84(3))

12. Officials – Reimbursement of expenses – Annual travel expenses

(Staff Regulations, Annex VII, Art. 8)

13. Officials – Reimbursement of expenses – Annual travel expenses

(Staff Regulations, Annex VII, Art. 8(4))

1. ‘Disputes of a financial character’ within the meaning of Article 91(1) of the Staff Regulations include not only actions brought by staff members seeking to have an institution held liable, but also all those seeking payment by an institution to a staff member of a sum which the latter considers to be due to him under the Staff Regulations or other measure governing their working relations. Under Article 91(1) of the Staff Regulations, the Community judicature has unlimited jurisdiction in those disputes, which entrusts it with the task of providing a complete solution to the disputes brought before it, that is to say to rule on all the rights and obligations of the staff member, save for leaving to the institution in question, under the control of the court, the implementation of such part of the judgment and under such precise conditions as the court shall determine. The Community judicature is therefore able, in an appropriate case, to order an institution to pay a sum to which the applicant is entitled under the Staff Regulations or another legal measure.

(see paras 39-42)

See:

C-135/06 P Weißenfels v Parliament [2007] ECR I‑12041, paras 65, 67 and 68

2. A decision to dismiss at the end of the probationary period must be annulled if the probationer has not been allowed to complete his probationary period under normal conditions.

Although the probationary period, which is designed to enable the probationer’s abilities and conduct to be assessed, cannot be assimilated to a training period, it is still imperative that the probationer be given the opportunity, during this period, to demonstrate his qualities. That requirement means in practice that the probationer must be given appropriate instructions and advice in order to enable him to adapt to the specific needs of the post which he occupies.

The required level of instructions and advice must be assessed not in the abstract, but in practical terms, taking account of the type of duties performed. From that point of view the probationer’s previous experience cannot be ignored. While that experience cannot, as such, call into question the usefulness of the probationary period, it may determine the level of supervision he should be given in order for the purpose of the probationary period to be fulfilled.

(see para. 65)

See:

3/84 Patrinos v ESC [1985] ECR 1421, paras 20-24

T-26/91 Kupka-Floridi v ESC [1992] ECR II‑1615, para. 44; T‑568/93 Correia v Commission [1994] ECR-SC I‑A‑271 and II‑857, para. 34; T-96/95 Rozand-Lambiotte v Commission [1997] ECR-SC I‑A‑35 and II‑97, para. 95

F‑112/06 Krcova v Court of Justice [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 48, on appeal before the Court of First Instance, Case T‑498/07 P; F-73/07 Doktor v Council [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 31 and 33-36, on appeal before the Court of First Instance, Case T‑248/08 P

3. According to Article 80(2) of the Conditions of Employment of Other Servants contract staff in function group IV may perform their tasks under the supervision of officials, without distinction as to category. That provision does not, therefore, prevent the tasks of a member of the contract staff belonging to function group IV from being performed, where appropriate, under the supervision of an official in function group AST.

(see para. 72)

4. A probationary official’s right to serve his probationary period under proper conditions is sufficiently guaranteed by a verbal warning enabling him to adapt and improve his performance according to the requirements of the service.

(see para. 84)

See:

Rozand-Lambiotte v Commission, para. 102

5. Even though an application before the Court of First Instance may be supported and supplemented, in regard to specific points, by references to extracts of documents appended thereto, the annexes have a purely evidential and instrumental function and cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application. The applicant must indicate in its application the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based.

Before the Civil Service Tribunal the annexes may, a fortiori, not develop a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application since, under Article 7(3) of Annex I to the Statute of the Court of Justice, the written stage of the proceedings comprises only one exchange of written pleadings, unless the Tribunal decides otherwise. That particular feature of the procedure before the Civil Service Tribunal explains why, contrary to what is provided for in proceedings before the Court of First Instance or the Court of Justice, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice, the pleas in law and arguments in the application may not be in summary form. Such flexibility would have the practical effect of rendering largely ineffective the special, and later, rule set out in Annex I to the Statute of the Court of Justice.

(see paras 86-87)

See:

T-340/03 France Télécom v Commission [2007] ECR II‑107, para. 167

6. Article 84(3) of the Conditions of Employment of Other Servants confers on the reporting officer and the authority empowered to conclude contracts of employment 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 relevance of the criteria for assessing a probationary period, its review being confined to establishing that there has been no manifest error of assessment or misuse of powers.

(see para. 89)

See:

Rozand-Lambiotte v Commission, para. 112

Krcova v Court of Justice, para. 62

7. The procedural guarantees granted to officials when they are assessed cannot be extended to probationary officials. The legal and factual situations of established officials and probationary officials are fundamentally different. In particular, the situation in practice of a probationary official is not comparable to that of an official who has been in service for a number of years. Moreover, the rules concerning the assessment of officials cannot be transposed to the assessment of probationers. The staff reports of established officials and the end-of-probationary period report of probationary officials have distinct functions, the end-of-probationary-period report being principally intended to evaluate the probationary official’s fitness to carry out the work corresponding to his post, whereas the primary function of the staff report is to provide the administration with periodic information, which is as complete as possible, on the performance of their duties by officials.

(see paras 92, 95)

See:

Doktor v Council, paras 85 and 86

8. The end-of-probationary-period report of a member of the contract staff and subsequent opinions, such as the opinion of his hierarchical superior or of the Reports Committee, are not decisions adversely affecting the staff member within the meaning of Article 25 of the Staff Regulations, to which the first paragraph of Article 11 and Article 81 of the Conditions of Employment of Other Servants refer. Consequently, while the end-of-probationary-period report and subsequent opinions must be sufficiently well-argued to permit the authority empowered to conclude contracts of employment to adopt its decision and to state the reasons on which it is based, they do not need to describe in detail all the underlying facts. In particular, the reporting officer is not required to describe all of the probationary official’s activities or to refer exhaustively and in detail to the difficulties encountered during the probationary period. The reporting officer, the staff member’s hierarchical superior and the Reports Committee also cannot be expected to discuss all the factual and legal issues which the probationary official has raised in his self-assessment or in supplementary notes.

(see para. 93)

See:

98/81 Munk v Commission [1982] ECR 1155, para. 14

9. Although Article 84(3) of the Conditions of Employment of Other Servants is intended to ensure that contract staff have the right to submit any observations they may wish to make to the authority empowered to conclude contracts of employment and also to ensure that those observations are taken into consideration, the first paragraph of Article 11 of those Conditions of Employment and Article 25 of the Staff Regulations, to which Article 81 of the Conditions of Employment refers with regard to contract staff, do not relate to the opinions given by hierarchical superiors who were consulted in the context of an assessment procedure. Those hierarchical superiors cannot therefore be required to give their express views, in a statement of reasons, on all the arguments raised by the probationary official.

(see paras 103, 105)

See:

T-98/98 Trigari-Venturin v Translation Centre [1999] ECR-SC I‑A‑159 and II‑821, para. 57

10. The decision to dismiss a member of the temporary staff at the end of the probationary period is subject to the formal requirement that it must contain a statement of reasons. In so far as Article 81 of the Conditions of Employment of Other Servants refers, as regards contract staff, to the first paragraph of Article 11 of those Conditions of Employment, which is applicable to temporary staff, and in so far as the latter provision extends to temporary staff the benefit of Article 25 of the Staff Regulations, which requires any decision adversely affecting an official to contain a statement of the reasons on which it is based, the decision not to appoint a member of the contract staff as an established official at the end of the probationary period must contain a statement of the reasons on which it is based.

The reasons given for a decision are sufficient if it was adopted in circumstances known to the official concerned which enable him to understand the scope of the measure concerning him. That is the case where the decision was preceded by interviews with the hierarchy which related to the situation in question. Furthermore, a statement of reasons for a decision is sufficient if it refers to a document which is already in the addressee’s possession and which contains the matters on which the institution based its decision.

(see paras 115, 117)

See:

C-116/88 and C-149/88 Hecq v Commission [1990] ECR I‑599, paras 26 and 27

T-331/94 IPK v Commission [1997] ECR II‑1665, para. 52; Trigari-Venturin v Translation Centre, para. 84

11. 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. In particular, the use of the words ‘in exceptional circumstances’ in Article 84(3) of the Conditions of Employment of Other Servants shows that the authority empowered to conclude contracts of employment 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. Consequently, the Community judicature may declare unlawful the institution’s assessment of the outcome of a probationary period only if there has been a manifest error of assessment or misuse of powers.

While the duty of the administration to have regard for the interests of its officials implies that when the authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may 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 duty cannot have the effect of making into a rule the possibility ‘in exceptional circumstances’ of extending the probationary period provided for in Article 84(3) of the Conditions of Employment of Other Servants, without altering that provision, which reflects the balance of the rights and obligations established by the Conditions of Employment in the relationship between the administration and probationary officials.

(see paras 126, 128-129)

See:

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. 76

Krcova v Court of Justice, paras 62 and 77

12. The second sentence of Article 8(4) of Annex VII to the Staff Regulations deals with the question of travel expenses for officials whose place of employment is outside the territory of a Member State. It grants entitlement, for the officials and their families, in each calendar year, to repayment of travel expenses, without that repayment being subject to the pro rata rule set out in Article 8(3), which applies to officials whose place of employment is in the territory of a Member State. An official who is posted to a third country is thus entitled to repayment of his full travel expenses regardless of the actual duration of his duties. Such a difference in treatment is not discriminatory, since the situation of officials whose place of employment is in the territory of a Member State and the situation of officials posted outside that territory are substantially different.

(see paras 155, 158-160)

See:

F-43/05 Chassagne v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 97

13. The mechanism provided for in Article 8(4) of Annex VII to the Staff Regulations for the repayment of travel expenses for officials posted to a third country, which was retained by the Community legislature when the Staff Regulations were reformed in 2004, presupposes that the journey was actually made and the cost actually incurred. Although that provision no longer refers to the obligation to submit supporting documentation, that obligation forms part of the condition that the journey must actually have been made.

(see paras 168-169)