CELEX: 62007FJ0063
Language: en
Date: 2009-03-03
Title: Judgment of the Civil Service Tribunal (Second Chamber) of 3 March 2009. # Maria Patsarika v European Centre for the Development of Vocational Training (Cedefop). # Public service - Re-assignment. # Case F-63/07.

JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
      (Second Chamber) 
      3 March 2009
      Case F-63/07
      Maria Patsarika
      v
      European Centre for the Development of Vocational Training (Cedefop)
      (Civil service – Contract staff – Reassignment – Rights of the defence – Dismissal at the end of the probationary period – Default procedure)
      Application: brought under Articles 236 EC and 152 EA, in which Mrs Patsarika seeks, in particular, annulment of the decision of the Director
         of Cedefop of 20 September 2006 terminating, at the end of her probationary period, her fixed-term contract as a member of
         the contract staff concluded on 27 September 2005 for a period of two years and taking effect on 1 October 2005.
      
      Held: The action is dismissed. The applicant is to bear three quarters of her own costs. Cedefop is to bear its own costs and to
         pay one quarter of the applicant’s costs.
      
      Summary
      1.      Officials – Actions – Time-limits – Point from which time starts to run – Notification
      (Staff Regulations, Art. 91(3))
      2.      Officials – Contract staff – Recruitment – Probationary period – Purpose
      (Conditions of Employment of Other Servants, Art. 84)
      3.      Officials – Contract staff – Recruitment – Probationary period – Option of extending the probationary period
      (Conditions of Employment of Other Servants, Art. 84)
      4.      Officials – Contract staff – Recruitment – Probationary period – Decision to dismiss at the end of the probationary period
            – Criteria
      (Conditions of Employment of Other Servants, Art. 84)
      5.      Officials – Contract staff – Recruitment – Probationary period – Assessment of outcome
      (Conditions of Employment of Other Servants, Art. 84)
      6.      Officials – Contract staff – Decision affecting the administrative situation of a member of the contract staff
      (Staff Regulations, Art. 26; Conditions of Employment of Other Servants, Art. 11, first para.)
      1.      The notification of a decision rejecting a complaint in a language which is neither the mother tongue of the official nor
         that in which the complaint was drafted is lawful provided that the person concerned is able to have effective knowledge of
         it. If, on the other hand, the addressee of that decision considers that he is unable to understand it, it is for him to ask
         the institution, with all due despatch, to provide him with a translation either in the language of the complaint or in his
         mother tongue. Where such a request is made without delay, the time for filing an appeal starts to run only from the date
         on which that translation is notified to the official concerned, unless the institution can demonstrate, without any doubt
         remaining in that regard, that the official was able to have effective knowledge both of the operative part and of the grounds
         of the decision rejecting his complaint in the language of the original notification.
      
      (see para. 31)
      See:
      T-197/98 Rudolph v Commission [2000] ECR-SC I‑A‑55 and II‑241, paras 43-45; T-118/99 Bonaiti Brighina v Commission [2001] ECR‑SC I‑A‑25 and II‑97, paras 16-19
      
      2.      Although the probationary period cannot be assimilated to a training period, it is still imperative that the official or probationary
         staff member be given the opportunity, during this period, to demonstrate his qualities. This requirement meets the requirements
         of proper administration and equal treatment, and the duty to have regard for the interests of officials, which reflects the
         balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official
         authority and civil servants. 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.
      
      (see para. 39)
      See:
      10/55 Mirossevich v High Authority [1956] ECR 333, 340 et seq.; 3/84 Patrinos v ESC [1985] ECR 1421, paras 20 and 21
      
      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; 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. 69
      
      F-112/06 Krcova v Court of Justice [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 48
      
      3.      It is clear just from reading Article 84(3) and (4) of the Conditions of Employment of Other Servants that the option for
         the authority authorised to conclude contracts of engagement to extend the duration of a probationary period and, where appropriate,
         to assign the staff member concerned to another department is by no means subject to the condition that the work of the staff
         member must have proved obviously inadequate. That requirement applies only where the authority decides to dismiss the staff
         member before the expiry of the probationary period. Furthermore, although Article 84(3) of the Conditions of Employment explicitly
         gives the administration the option, if an extension of the probationary period is granted, of assigning the staff member
         to a different department, the staff member must, however, always be given the opportunity to demonstrate his qualities and
         the progress of the probationary period must not be disrupted, so that the equivalence of posts must also be observed.
      
      (see paras 44-45)
      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. The same applies to the probationary periods of contract staff.
      
      (see paras 62, 89)
      See:
      290/82 Tréfois v Court of Justice [1983] ECR 3751, paras 24 and 25; Patrinos v ESC, para. 13
      
      Rozand-Lambiotte v Commission, para. 113
      
      5.      The administration has a wide discretion when it comes to assessing the abilities and performance of probationary staff members
         in accordance with the interest of the service. Accordingly, it is not for the Tribunal to substitute its own judgment for
         that of the administration in so far as concerns the outcome of a probationary period and the suitability of a probationary
         official for permanent appointment in the Community civil service, its review being confined to establishing that there has
         been no manifest error of assessment or misuse of powers.
      
      (see para. 63)
      See:
      98/81 Munk v Commission [1982] ECR 1155, para. 16; Tréfois v Court of Justice, para. 29; 347/82 Alvarez v Parliament [1984] ECR 1847, para. 16; Patrinos v ESC, para. 25
      
      Kupka-Floridi v ESC, para. 52; Rozand-Lambiotte v Commission, para. 112; Tralli v ECB, para. 76
      
      6.      Article 26 of the Staff Regulations, which applies to contract staff pursuant to the first paragraph of Article 11 of the
         Conditions of Employment of Other Servants, and which provides that an official’s personal file is to contain all documents
         relating to his administrative status and all reports relating to his ability, efficiency and conduct, together with any comments
         by the official on such documents, is intended to guarantee an official’s right to a fair hearing by ensuring that decisions
         taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his
         conduct which are not included in his personal file. Consequently, a decision based on such matters is contrary to the guarantees
         contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality.
      
      (see para. 84)
      See:
      21/70 Rittweger v Commission [1971] ECR 7, paras. 29-41
      
      T-78/92 Perakis v Parliament [1993] ECR II‑1299, para. 27; T‑109/92 Lacruz Bassols v Court of Justice [1994] ECR-SC I‑A‑31 and II‑105, para. 68; T-7/01 Pyres v Commission [2003] ECR-SC I‑A‑37 and II‑239, para. 70