JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

8 June 2009

Case T-498/07 P

Erika Krcova

Court of Justice of the European Communities

(Appeal – Civil service – Officials – Recruitment – Probationary period – Extension of the probationary period – End of probation report – Dismissal at the end of the probationary period – Article 34 of the Staff Regulations – Obligation on the Civil Service Tribunal to state reasons)

Appeal: brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 18 October 2007 in Case F-112/06 Krcova v Court of Justice [2007] ECR-SC I-A-0000, for that judgment to be set aside.

Held: The appeal is dismissed. Erika Krcova is ordered to bear her own costs and to pay those incurred by the Court of Justice of the European Communities before the Court of First Instance.

Summary

1. Procedure – Statement of reasons for judgments – Scope – Obligation to rule on each alleged infringement of law

(Statute of the Court of Justice, Art. 36, and Annex I, Art. 7(1))

2. Officials – Recruitment – Probationary period – End of probation report – Drawn up late

(Staff Regulations, Art. 34)

3. Officials – Actions – Acts adversely affecting an official – Definition – Preparatory act – End of probation report – Inadmissibility

(Staff Regulations, Arts 34, 90 and 91)

1. While the obligation of the Civil Service Tribunal to give reasons for its decisions does not go so far as to require it to respond in detail to every argument advanced by the parties, particularly where the arguments were not sufficiently clear and precise and were not based on detailed evidence, it does, at the very least, require it to examine all the infringements of law alleged before it.

(see para. 35)

See: judgment of 25 October 2007 in C-167/06 P Komninou and Others v Commission, not published in the ECR, para. 22

2. The purpose of Article 34 of the Staff Regulations is to ensure that a probationary official can state his observations on the assessments made by his assessor and that the institution then has sufficient time to take a decision on whether to appoint the person concerned as an established official on a date which coincides, as far as possible, with the date on which his probationary period expires. While failure to comply with the time-limits laid down in Article 34 of the Staff Regulations constitutes a breach of the express requirements of the Staff Regulations, that breach, however regrettable, is nevertheless not such as to call into question the validity of a decision to dismiss a probationary official for incompetence, since the purpose of Article 34 of the Staff Regulations is satisfied. That does not prejudice the possibility for the probationary official, where that breach has caused him harm, to seek compensation from the institution concerned.

(see para. 45)

See 10/72 and 47/72 di Pillo v Commission [1973] ECR 763, paras 23 to 25; 98/81 Munk v Commission [1982] ECR 1155, paras 8 to 10; T‑26/01 Kupka-Floridi v ESC [1992] ECR II‑1615, para. 20 ; T‑96/95 Rozand-Lambiotte v Commission [1997] ECR-SC I‑A‑35 and II‑97, para. 68; T‑98/98 Trigari-Venturin v Translation Centre [1999] ECR-SC I‑A‑159 and II‑821, para. 74

3. The end of probation report is in the nature of a preparatory act, since it forms part of a procedure which has no purpose other than to enable the appointing authority to adopt a decision to appoint the probationary official as an established official at the end of his probationary period or, if appropriate, to dismiss him for incompetence. Consequently, the validity of an end of probation report may be challenged by the person concerned only indirectly, in support of an action against any decision taken by the appointing authority to dismiss him at the end of his probationary period in the light of the negative assessments contained in that report.

(see para. 56)