JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

9 July 2009

Case F-85/08

Pietro Notarnicola

v

Court of Auditors of the European Communities

(Civil service – Member of the contract staff – Report at the end of the probationary period – Time-limits – Dismissal after the end of the probationary period – Statement of reasons – Manifest error of assessment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Notarnicola seeks annulment of the decision of the Secretary-General of the Court of Auditors of 16 July 2008 confirming the decision to dismiss him taken on 5 March 2008 by the Director of Human Resources, Information Technology and Telecommunications.

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

Summary

1.      Officials – Contract staff – Recruitment – Probationary period

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

2.      Officials – Contract staff – Recruitment – Probationary period

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

3.      Officials – Contract staff – Recruitment – Probationary period – Decision to dismiss at the end of the probationary period

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

1.      The aim of Article 34 of the Staff Regulations is to ensure that the person concerned has the right to submit any observations he may wish to make to the appointing authority and also to ensure that those observations are taken into consideration by that authority. Article 84 of the Conditions of Employment of Other Servants is also to be regarded as having that aim.

Provided that a probationary member of the contract staff has had the opportunity to submit his views on the reporting officer’s assessment to the administration, a delay in drawing up the end-of-probation report, while it constitutes an irregularity vis-à-vis the express requirements of the Conditions of Employment of Other Servants, is not, regrettable as it may be, such as to call in question the validity of the report or, where appropriate, the decision to dismiss the staff member.

The time-limit laid down in Article 84(3) of the Conditions of Employment of Other Servants, which requires the reporting officer to communicate the end-of-probation report to the probationer at least one month before the probationary period expires, does not constitute a period of notice, but is designed to ensure that the staff member is able to submit his observations before the institution takes a decision whether or not to retain his services on a date which coincides, as far as possible, with the expiry of the probationary period.

(see paras 31-33)

See:

10/72 and 47/72 Di Pillo v Commission [1973] ECR 763, para. 16; 175/80 Tither v Commission [1981] ECR 2345, para. 13; 98/81 Munk v Commission [1982] ECR 1155, para. 8

T-26/91 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. 57

F-112/06 Krcova v Court of Justice [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 33 and 35

2.      While Article 84 of the Conditions of Employment of Other Servants does not lay down any mandatory time-limit, once the probationary official has submitted written observations on the reporting officer’s assessment of his suitability to be retained in his post, for the authority empowered to conclude contracts of employment to decide whether to keep him in his post or to dismiss him, the authority’s decision whether to keep the staff member in his post must be taken on a date which coincides, as far as possible, with the expiry of the probationary period.

(see paras 43-44)

See:

Trigari-Venturin v Translation Centre, para. 74

3.      A decision not to establish a probationary official is inherently different from the ‘dismissal’, in the strict sense, of a person who has been appointed an established official. Whereas in the latter case a detailed examination is required of the reasons justifying termination of an established employment relationship, in decisions concerning the establishment of probationary officials the examination must be general and must be concerned with the question whether or not there is a series of positive considerations identified during the probationary period showing that the establishment of the official is in the interests of the service.

The same is true of Article 84 of the Conditions of Employment of Other Servants, in that the decision not to retain a member of the contract staff in his post at the end of (or during) the probationary period is also inherently different from the dismissal of a staff member who has previously been confirmed in his post on the basis of a positive end-of-probation report. Thus, as with the decision whether or not to establish a staff member as an official, the decision whether or not to retain a staff member in his post requires a general review of the probation period in order to identify whether or not there is a series of positive considerations showing that the retention of the staff member in his post is in the interests of the service.

Furthermore, the administration has a wide discretion when it comes to assessing the abilities and performance of an official or probationary official in accordance with the interest of the service. Accordingly, it is not for the Civil Service Tribunal to substitute its own judgment for that of the institutions in so far as concerns their assessment of the outcome of a probationary period and their appreciation of the suitability of a probationary official for permanent appointment or confirmation of contract in the Community civil service, unless there has been a manifest error of assessment or misuse of powers.

(see paras 70-72)

See:

Munk v Commission, para. 16; 290/82 Tréfois v Court of Justice [1983] ECR 3751, paras 24, 25 and 29; 347/82 Alvarez v Parliament [1984] ECR 1847, para. 16; 3/84 Patrinos v ESC [1985] ECR 1421, paras 13 and 25

Kupka-Floridi v ESC, para. 52; Rozand-Lambiotte v Commission, paras 112 and 113; 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. 76

Krcova v Court of Justice, para. 62