JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

13 December 2012

Case F‑2/11

BW

v

European Commission

(Civil service — Officials — Recruitment — Probationary official — Non-establishment following the probationary period — Statement of reasons for the decision to dismiss a probationary official — Rights of the defence)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby BW seeks, primarily, annulment of the decision of the European Commission of 1 March 2010 not to establish him.

Held: The action is dismissed. The applicant is to bear his own costs and is ordered to pay the costs incurred by the Commission.

Summary

1. Officials — Recruitment — Probationary period — End of probationary period report — Obligation to state reasons — Scope — Obligation to substantiate value judgments by specific examples — None

(Staff Regulations, Art. 43)

2. Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the action — Same subject-matter and same case of action

(Staff Regulations, Arts 90 and 91)

3. Officials — Recruitment — Probationary period — Purpose — Conditions of conduct

(Staff Regulations, Art. 34)

4. Officials — Recruitment — Probationary period — Decision not to establish a probationary official — Decision to dismiss an established official — Difference in legal nature — Respective elements of assessment to be applied

(Staff Regulations, Art. 34(2))

5. Officials — Recruitment — Probationary period — Assessment of the results — Assessment of the suitability of a probationary official — Judicial review — Limits — Manifest error of assessment — Concept

(Staff Regulations, Art. 34)

6. Officials — Administration’s duty to have regard for the welfare of officials — Principle of sound administration — Scope — Obligation to assign a probationary official to a new department where his probationary period is extended — None

(Staff Regulations, Art. 34 (3))

7. Officials — Reports procedure — Existence of differences between an official and his immediate superior — No impact on the latter’s ability to assess the merits of the official concerned

8. Officials — Principles — Rights of the defence — Obligation to hear the person concerned before adopting an act adversely affecting him — Scope — End of probationary period report — Not included

(Staff Regulations, Art. 34)

1. Although the setting of objectives for each probationary official at the beginning of the probationary period is necessary, even in the absence of provisions to that effect, so that the assessor may have a basis on which to evaluate the productivity of the probationary official concerned, the obligation to state reasons requires the assessor only to mention the salient characteristics of the probationary official concerned in terms, in particular, of aptitude to perform the tasks involved in his duties, productivity and conduct in the service, and not to indicate the objectives set that were not attained. Likewise, provided that the obligation to state reasons is satisfied, and in so far as the assessment is clearly specific to the person concerned and not impersonal, an assessor is not required to provide details of his assessment by giving specific examples to substantiate each value judgment in a probation report.

As a matter of principle, a probation report is required to contain only assessments relating to the period in respect of which it is made. However, where the probationary official’s probationary period is extended, the assessor may include in the report relating to the period during which the probationary period was extended observations dealing with the initial probationary period without vitiating that report, since such indications are intended to highlight the progress in the applicant’s performance.

Compliance by the administration with its obligation to state the reasons for every probationary report must be assessed when the final version of that report has been drawn up. Consequently, so long as a probationary report has not become final, the fact that its contents are amended cannot constitute a breach of the obligation to state reasons.

(see paras 43-45)

See:

12 September 2007, T‑249/04 Combescot v Commission, para. 86

2. The rule requiring correspondence between the prior administrative complaint and the application can apply only where the application alters the relief sought in the complaint, that is to say, where it contains a plea relating to procedural legality when only pleas relating to substantive legality were raised in the complaint, or, conversely, where it contains a plea relating to substantive legality although only pleas relating to procedural legality were raised in the complaint. The fact that the applicant employed the services of a lawyer in order to lodge his complaint has no impact on whether the relief sought in the dispute was altered.

(see paras 46, 140-41)

See:

1 July 2010, F‑45/07 Mandt v Parliament, para. 119

3. While the probationary period, which is intended to enable the administration to assess the suitability of the probationary official to perform the tasks involved in his duties, and also his productivity and his conduct in the service, cannot be equated to a period of training, it is none the less essential that during that period the probationary official concerned be put in a position to prove his qualities. That condition means in practice that the probationary official must not only be accorded appropriate material conditions but must also be given appropriate instructions and advice in the light of the nature of the duties performed, in order to enable him to adapt to the specific needs of the post which he occupies.

(see para. 104)

See:

15 May 1985, 3/84 Patrinos v ECS, paras 20 and 21

5 March 1997, T‑96/95 Rozand-Lambiotte v Commission, para. 95

16 April 2008, F‑73/07 Doktor v Council, para. 31

4. A decision not to establish a probationary official is, by its very nature, different from ‘dismissal’ in the strict sense of a person who has been appointed an established official. While in the latter case the grounds justifying the termination of the employment of an established official must be examined in detail, in decisions on the establishment of probationary officials the examination must be comprehensive and must relate to whether or not there are a number of positive considerations which came to light in the course of the probationary period, showing that establishment of the probationary official is in the interests of the service.

(see para. 78)

See:

17 November 1983, 290/82 Tréfois v Court of Justice, paras 24 and 25

18 October 2007, F‑112/06 Krcova v Court of Justice, paras 61 and 62

5. It is not for the European Union judicature to substitute its own judgment for that of the institutions so far as concerns their assessment of the outcome of a probationary period and of the suitability of a probationary official for a definitive appointment in the administration of the European Union, its power of review being limited with respect to the substantive legality of a decision to ensuring that there has been no manifest error of assessment or misuse of powers.

(see para. 78)

See:

Tréfois v Court of Justice, paras 24 and 25

Krcova v Court of Justice, paras 61 and 62

6. The duty of the administration to have regard for the welfare of its officials reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between the public authority and civil servants. That duty, together with the principle of sound administration, implies in particular 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. It is clear from the third subparagraph of Article 34(3) of the Staff Regulations that the administration may, but is not under an obligation to, assign a probationary official to another department if it decides to extend his probationary period. If the duty to have regard for the welfare of officials and the principle of sound administration were to have the effect of changing that option into an obligation for the administration, they would alter the balance of the rights and obligations created by the Staff Regulations in the relationship between the public authority and civil servants.

(see paras 112, 122-23)

See:

4 February 1987, 417/85 Maurissen v Court of Auditors, para. 12

Doktor v Council, para. 42

7. Even though the possibility cannot be excluded that differences between an official and his immediate superior may cause a degree of irritation on the part of the immediate superior, that possibility does not, as such, imply that the immediate superior is no longer in a position to carry out an objective assessment of the merits of the person concerned.

(see para. 114)

See:

13 December 2005, T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission, para. 150

8. Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law. That principle requires that the person concerned must be placed in a position in which he may effectively make known his views on the evidence that might be used against him in the measure to be taken.

However, the report on the probationary period does not constitute an act adversely affecting the probationary official concerned, but an act preparatory to a decision to establish or dismiss him. Accordingly, in the absence of a specific provision, the assessor is not required to hear the applicant before drawing up the report. Furthermore, an assessor may amend a probationary period report after hearing the probationary official concerned.

(see paras 136-37, 139)

See:

10 July 1986, 234/84 Belgium v Commission, para. 27; 3 October 2000, C‑458/98 P Industrie des poudres sphériques v Council, para. 99; 9 November 2006, C‑344/05 P Commission v De Bry, para. 37

8 March 2005, T‑277/03 Vlachaki v Commission, para. 64

2 March 2010, T‑248/08 P Doktor v Council, para. 81