ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

15 October 2015

DI

v

European Asylum Support Office (EASO)

‛Civil service — EASO staff — Member of the contract staff — Probationary period — Dismissal for obviously inadequate work — Action for annulment — Correspondence between the application and the complaint — None — Manifest inadmissibility — Action for damages’

Application:

under Article 270 TFEU, by which DI seeks, first, annulment of the decision of the Executive Director of the European Asylum Support Office (EASO) of 28 February 2013 to dismiss him at the end of his probationary period and, secondly, compensation for the material and non-material damage allegedly suffered by him and his family.

Held:

The action is dismissed as being manifestly inadmissible. DI is to bear his own costs and is ordered to pay the costs incurred by the European Asylum Support Office.

Summary

Actions brought by officials — Members of the temporary staff — Prior administrative complaint — Correspondence between the complaint and the application — Same relief sought and heads of claim — Pleas in law and arguments not made in the complaint but closely related to it — Admissibility

(Staff Regulations, Art. 91(2); Conditions of Employment of Other Servants, Art. 73)

With regard to the rule that the application must correspond to the complaint, the first indent of Article 91(2) of the Staff Regulations, applicable to contract staff under Article 73 of the Conditions of Employment of Other Servants, provides that an action before the Tribunal is admissible only if the appointing authority or the authority empowered to conclude contracts of employment, as the case may be, has previously had a complaint submitted to it. Furthermore, that rule requires that, for a plea before the EU judicature to be admissible, it must have already been raised in the pre-litigation procedure, so that the appointing authority or, where appropriate, the authority empowered to conclude contracts of employment has already been made aware of the criticisms levelled by the person concerned against the contested decision.

That rule is justified by the very purpose of the pre-litigation procedure, which is to allow for an amicable settlement of disputes arising between officials and the administration. Accordingly, in actions brought by officials, claims for relief before the EU judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the EU judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it. In addition, since the pre-litigation procedure is an informal procedure and those involved at that stage are generally acting without the assistance of a lawyer, the administration must not interpret complaints restrictively but should, on the contrary, examine them with an open mind.

Furthermore, Article 91 of the Staff Regulations is not intended to be strictly and definitively binding for the purposes of a possible contentious stage of the procedure, provided that neither the heads of claim nor the relief sought in the complaint are changed in the action brought. However, in order for the pre-litigation procedure provided for under Article 91(2) of the Staff Regulations to achieve its objective, it is necessary that the appointing authority or, where appropriate, the authority empowered to conclude contracts of employment be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision.

(see paras 20, 26-29)

See:

Judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraphs 70 to 73, 76 and 77 and the case-law cited therein