ORDER OF THE GENERAL COURT (Appeal Chamber)

25 April 2016

Filip Mikulik

v

Council of the European Union

‛Appeal — Civil service — Officials — Recruitment — Dismissal at the end of the probationary period — Appeal in part manifestly inadmissible and in part manifestly unfounded’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Single Judge) of 25 June 2015 in Mikulik v Council (F‑67/14, EU:F:2015:65), seeking to have that judgment set aside.

Held:

The appeal is dismissed. Mr Filip Mikulik is ordered to pay the costs.

Summary

1. Officials — Recruitment — Probationary period — Assessment of results — Assessment of the suitability of a probationary official — Taking into account of the observations of an external consultant who had worked closely with the person concerned — Lawfulness — Application by analogy of a prohibition on the involvement of third parties provided for in the guide to the staff reports procedure — Precluded

   (Staff Regulations, Arts 34, 43 and 110)

2. Officials — Recruitment — Probationary period — Purpose — Conditions under which conducted

   (Staff Regulations, Art. 34(3))

1.  When assessing the suitability of a probationary official, a prohibition on taking into account the observations of an external consultant may not be based on an application by analogy of the institution’s guide to staff reports, which relates only to reports on established officials.

   Application of a provision by analogy, with regard to an economic operator, is possible where the legal rules applicable, on the one hand, are very similar to those which it is sought to have applied by analogy and, on the other hand, contain an omission which is incompatible with a general principle of EU law and which can be remedied by application by analogy of those other rules.

   In that regard, there can be no question of an omission given that, first of all, Article 34 of the Staff Regulations concerning the procedure for assessing probationary officials is sufficiently detailed and, second, whereas Article 43 of the Staff Regulations on staff reports on established officials provides for the adoption of general implementing provisions for that procedure, in accordance with Article 110 of the Staff Regulations, that is not the case with Article 34. An application by analogy of the staff reports guide to the appraisal of probationary officials would therefore be contrary to the intention of the author of that document.

   (see paras 25, 26)

   See:

   Judgment of 12 December 1985 in Krohn, 165/84, EU:C:1985:507, para. 14

2.  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 also satisfies the requirements of the principles of sound administration and equal treatment, as well as of the duty of care, which reflects the balance of reciprocal rights and obligations which the Staff Regulations have created in relations between the public authority and EU civil service staff. 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. 31)

   See:

   Judgment of 5 March 1997 in Rozand-Lambiotte v Commission, T‑96/95, EU:T:1997:25, para. 95 and the case-law cited therein