JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

7 October 2009

Case F-29/08

Y

v

Commission of the European Communities

(Civil service – Contract staff – Dismissal for obviously inadequate work – Conduct in the service inadequate)

Application: brought under Articles 236 EC and 152 EA, in which Y seeks annulment of the decision of the authority authorised to conclude contracts of employment of 24 May 2007 to dismiss him, and an order that the Commission pay him, first, the remuneration which he would have continued to be paid had his contract not been terminated prematurely, and, second, the sum of EUR 500 000 for the non-material damage he considers he has suffered as a result of the contested decision.

Held: The action is dismissed. The applicant is to bear all the costs.

Summary

1. Officials – Contract staff – Recruitment – Probationary period – Decision to dismiss before the end of the probationary period – Opinion of the Reports Committee not notified

(Staff Regulations, Art. 34(2); Conditions of Employment of Other Servants, Art. 84(4))

2. Officials – Contract staff – Recruitment – Probationary period – Decision to dismiss before the end of the probationary period – Obviously inadequate work – Concept

(Conditions of Employment of Other Servants, Art. 84(4))

3. Officials – Contract staff – Recruitment – Probationary period

(Conditions of Employment of Other Servants, Art. 84(4))

4. Officials – Contract staff – Recruitment – Probationary period – Decision to dismiss before the end of the probationary period – Obviously inadequate work

(Conditions of Employment of Other Servants, Art. 84(4))

1. Observance of the rights of the defence constitutes a fundamental principle of Community law which must be observed, even in the absence of an express provision to that effect, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person. In accordance with that principle, the Community judicature must ensure that the person concerned was given the opportunity, before the drawing up of the decision concerning him, to make his views effectively known as to the truth and relevance of the facts and circumstances on which that decision was based. Moreover, according to the general principle that the rights of the defence must be observed, an official must have the opportunity to comment on every document which an institution intends to use against him. Where he is not given such an opportunity, the undisclosed documents must not be taken into consideration as evidence.

The failure to communicate to a member of the contract staff the opinion issued by the Reports Committee when invited to give its opinion on the proposal to dismiss him entails an infringement of the rights of the defence only if certain conditions are met. First, the opinion must mention facts or complaints on which the dismissal decision is based. These may also include factors in the staff member’s favour, in so far as those factors deviate from the conclusions reached in that decision. Second, the staff member must not have been given the opportunity, as a result of the failure to notify him of the Reports Committee’s opinion, to make his views of those facts, complaints or factors effectively known. That applies where they have not been mentioned except in the opinion.

Accordingly, it is not so much the failure, in itself, to communicate the opinion of the Reports Committee which may result in an infringement of the rights of the defence, as the failure to communicate a fact or complaint on which the dismissal decision is based, or a factor likely to be useful to the defence of the staff member concerned, in so far as that fact, complaint or factor is mentioned only in the Reports Committee’s opinion.

Consequently, the failure to communicate the Reports Committee’s opinion does not constitute an infringement of the rights of the defence, even if the dismissal decision refers to it, as long as it is clear from the wording of that decision that the institution based its decision solely on complaints and factual elements mentioned in the probationary report which was communicated to the staff member prior to the adoption of the dismissal decision.

Furthermore, Article 84(4) of the Conditions of Employment of Other Servants, the provisions of which are applicable to contract staff, does not, unlike Article 34(2) of the Staff Regulations, the provisions of which are applicable to officials, make it an obligation for the authority authorised to conclude contracts of employment to consult the Reports Committee. While Article 34(2) of the Staff Regulations requires the administration to obtain the opinion of the Reports Committee regarding officials, it does not, however, require that opinion to be communicated to the person concerned. Consequently, the failure to communicate the opinion of the Reports Committee cannot lead to a finding of a separate procedural irregularity.

(see paras 34, 36-38, 41-46, 51, 53)

See:

44/69 Buchler v Commission [1970] ECR 733, para. 9; 234/84 Belgium v Commission [1986] ECR 2263, para. 27; C-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I‑565, para. 44; C-191/98 P Tzoanos v Commission [1999] ECR I‑8223, para. 34; C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, para. 99

T-26/91 Kupka-Floridi v ESC [1992] ECR II‑1615, para. 38; T-182/04 Van der Spree v Commission [2006] ECR-SC I‑A‑2‑205 and II‑A‑2‑1049, para. 56

2. According to Article 84(4) of the Conditions of Employment of Other Servants, a member of the contract staff may be dismissed, on the basis of a report drawn up at any time during the probationary period, if his work is ‘obviously inadequate’. Given the use of the term ‘obviously’, the finding of obvious inadequacy must be fairly evident.

Consequently, when an institution adopts a decision to dismiss a staff member pursuant to the provisions of Article 84(4) of the Conditions of Employment, it must base that decision on sufficiently clear factual aspects which, on an objective view, are capable of being regarded as constituting obvious inadequacy. It is then for the Union judicature, in reviewing whether there has been a manifest error of assessment and taking account of the administration’s discretion in assessing the ability of the staff member during the probationary period, to satisfy itself that such aspects are present.

Thus a mere reference to an ongoing criminal prosecution, and therefore one which has not yet led to factual findings in a judicial decision that has become final, rather than to facts which the institution might have established or which might be admitted by the person concerned, is not based on established factual aspects capable of justifying a finding of obvious inadequacy.

In the case of a staff member responsible for tasks requiring a strong bond of trust with the institution for which he works, who has conducted an investigation to establish the existence of problems within his own department without informing any member of the institution, and using methods likely to lead to misunderstanding and to prejudice the image of the institution, the fact of remaining silent about that investigation and justifying that silence by a lack of confidence in his superiors may legitimately be regarded by the institution as characterising, in the light of his duties and responsibilities, obvious inadequacy to perform his duties. That finding may therefore lead the institution to decide to dismiss him, without vitiating that decision by a manifest error of assessment, and whatever the reasons which led the staff member to take that action.

(see paras 68, 70, 71, 75, 81-82)

3. The instructions given on the form used to draw up the end-of-probation report of a member of the contract staff have no normative scope whatsoever and the institution concerned may therefore take other types of skills into account in order to assess the conduct of the person concerned in the service, including, in particular, his ability to fulfil his duty to act in good faith towards the institution employing him.

Moreover, the fact that events predate that staff member’s recruitment does not necessarily and automatically prevent the institution from taking them into account in order to assess his ability to perform his duties, since the concept of ‘ability’ is broader than that of ‘efficiency’ and ‘conduct in the service’.

(see paras 83, 86)

4. Where scrutiny of the conduct of a member of the contract staff leads to the conclusion that the conditions for the application of Article 84(4) of the Conditions of Employment of Other Servants are satisfied, the administration is entitled to use the form of dismissal from the service provided for in that article, even though the facts which led the administration to establish obvious inadequacy might lead to disciplinary proceedings being brought.

(see para. 111)

See:

101/79 Vecchioli v Commission [1980] ECR 3069, para. 8