JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

6 November 2014

DH

v

European Parliament

‛Civil service — Probationary official — Article 34 of the Staff Regulations — Probation report establishing the obvious inadequacy of the probationary official — Extension of the probationary period — Reassignment — Dismissal at the end of the probationary period — Conditions under which the probationary period progressed — Professional incompetence — Duty of care — Principle of sound administration’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which DH seeks annulment of the decision of the appointing authority of the European Parliament (‘the appointing authority’) of 26 February 2013 dismissing him at the end of his probationary period and, consequently, his reinstatement within the Parliament, as well as, in the alternative, should his reinstatement be impossible, an order that the defendant institution pay him the sum of EUR 35 000, plus default interest, in compensation for the harm he considers he has suffered as a result of his allegedly unlawful dismissal.

Held:

The action is dismissed. DH is to bear his own costs and is ordered to pay the costs incurred by the European Parliament.

Summary

Officials — Recruitment — Probationary period — Organisation of departments — Assignment of staff — Administration’s discretion — Scope — Duties not an extension of the work set out in the vacancy notice but relating to the subject-matter referred to in that notice — Lawfulness of the probationary period

The conditions laid down in Article 27 of the Staff Regulations are reviewed at the end of two consecutive procedures: when candidates sit a competition for entry to the European Union civil service, and upon completion of the probationary period enabling successful candidates to be established as officials. Consequently, a successful candidate in a competition who is engaged as a probationary official may be appointed as an established official only if he passes the probationary period provided for in Article 34 of the Staff Regulations. 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 condition, which is inextricably linked with the concept of a probationary period, is contained by implication in Article 34(3) of the Staff Regulations. It 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. In that regard, 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, which is designed to enable the probationer’s abilities and conduct to be assessed, it may, however, determine the level of supervision he should be given in order for the purpose of the probationary period to be fulfilled. (see paras 52, 53, 55, 56) See: judgments in Mirossevich v High Authority, 10/55, EU:C:1956:14, p. 387 to 389; and Patrinos v ESC, 3/84, EU:C:1985:202, paras 20 and 21 judgment in Rozand-Lambiotte v Commission, T-96/95, EU:T:1997:25, para. 95 judgments in Krcova v Court of Justice, F-112/06, EU:F:2007:178, para. 48; Doktor v Council, F-73/07, EU:F:2008:42, paras 31 and 33 to 36; and Giannini v Commission, F-49/08, EU:F:2009:76, para. 65

Where, at the end of his probationary period, a probationary official has proved obviously inadequate within the meaning of Article 34(2) of the Staff Regulations, or where his work has not proved adequate for establishment in his post within the meaning of the third subparagraph of Article 34(3) of the Staff Regulations, he must be dismissed. Such a dismissal decision is, in reality, a decision not to establish a probationer as an official, which 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 more comprehensive and must relate to whether or not there are a number of positive and/or negative considerations which came to light in the course of the probationary period, showing that establishment of the probationary official is, or is not, in the interests of the service. (see para. 57) See: judgment in Tréfois v Court of Justice, 290/82, EU:C:1983:334, paras 24 and 25 judgment in BW v Commission, F-2/11, EU:F.2012:194, para. 78

The fact that a successful candidate in a competition is in merit group 1 on the reserve list does not bind the appointing authority when assessing the professional abilities of that candidate, which, for the purpose of Article 34 of the Staff Regulations, are those which must be shown in his work as a probationary official. (see para. 61) See: judgment in Da Silva Pinto Branco v Court of Justice, F-52/09, EU:F:2010:98, para. 59

While it is true that the administration has every interest in assigning its officials or other staff to posts in accordance with their aptitudes and their personal preferences, an official cannot for all that be recognised as having a right to perform or retain specific duties. Moreover, the fact that administrative tasks which were not a direct and necessary extension of technical field work described in the vacancy notice for the post in question were assigned to a probationary official does not render his probationary period unlawful, provided that those administrative tasks fell within the area referred to by the vacancy notice, that is to say, data-processing. For the same reasons, the probationary official cannot criticise the appointing authority for not having assigned him a series of tasks corresponding to the various headings mentioned in the vacancy notice, or for not having given priority to assigning him technical field tasks. In that regard, even if it is true that the vacancy notice in question was for the recruitment of a data-processing operations technician, which might be taken to imply that the post mainly involved the performance of technical data-processing field work, the way in which the notice described the duties relating to the post in question obviously made it clear that the tasks involved concerned the management and coordination of data-processing operating teams as well as, among other things, the preparation and monitoring of highly technical calls for tender. (see paras 68-70) See: judgment in Nagels v Commission, 52/70, EU:C:1971:49, paras 5 and 14 judgment in Campoli v Commission, T-100/00, EU:T:2001:75, para. 71