JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)
10 July 2008
Case F-61/06
Cathy Sapara
v
Eurojust
(Civil service – Members of the temporary staff – Recruitment – Probationary period – Extension of probationary period – Dismissal at the end of the probationary period – Obligation to state the reasons on which the decision is based – Rights of the defence – Manifest error of assessment – Psychological harassment)
Application: brought under Articles 236 EC and 152 EA, in which Mrs Sapara seeks annulment of the decision by Eurojust of 6 July 2005 to dismiss her at the end of her probationary period, an order for her to be reinstated within Eurojust from 6 July 2005, and an order for Eurojust to pay her by way of material damage the salary she should have received between 6 July 2005 and 15 October 2009, and, by way of non-material damage, the sum, assessed on a provisional basis ex aequo et bono, of EUR 200 000.
Held: The action is dismissed. Each party is to bear its own costs.
Summary
1. Officials – Members of the temporary staff – Recruitment – Probationary period – Decision to extend
(Conditions of Employment of Other Servants, Art. 14, third para.)
2. Officials – Members of the temporary staff – Recruitment – Probationary period – Report at the end of the probationary period
(Conditions of Employment of Other Servants, Art. 14, third para.)
3. Officials – Psychological harassment – Definition
(Staff Regulations, Art. 12a(3); Conditions of Employment of Other Servants, Art. 11, first para.)
4. Officials – Members of the temporary staff – Recruitment – Probationary period – Assessment of outcome
(Conditions of Employment of Other Servants, Art. 14, third para.)
5. Officials – Members of the temporary staff – Recruitment – Probationary period – Negative assessment of abilities of the person concerned
(Conditions of Employment of Other Servants, Art. 14, third para.)
1. It may be inferred from the third paragraph of Article 14 of the Conditions of Employment of Other Servants that if the authority authorised to conclude contracts of engagement decides to extend the probationary period which a probationer member of the temporary staff is required to serve, the authority must base its decision on the report produced at the end of the probationary period. The fact that the staff member’s immediate superior had already proposed that extension in a preliminary report drawn up half way through the probationary period does not constitute an infringement of that provision, since such a proposal, although premature, could not have had any effect on the member of staff’s position.
(see paras 54, 56-57)
2. Although the provisions of the third paragraph of Article 14 of the Conditions of Employment of Other Servants does not expressly provide that, in the event of a temporary staff member’s probationary period being extended, a further end-of-probation report should be drawn up at the end of that extended period, they cannot be interpreted as precluding the administration from being able to draw up a second report at the end of the extended probationary period. Indeed, where the probationary period of the person concerned has been extended, the competent authority may draw up a second report.
(see para. 60)
See:
175/80 Tither v Commission [1981] ECR 2345, para. 12
3. While it is true that it is contrary to the fundamental values on which the Community legal order is based for an official to make jokes about the colour of skin of one of his colleagues, regardless of whether or not the conduct is repeated, such conduct, while reprehensible and unacceptable, cannot as such be classified as psychological harassment within the meaning of Article 12a(3) of the Staff Regulations where it is established that the jokes were not repeated and that they ceased when the colleague concerned requested that they should stop.
(see paras 105-107)
4. In view of the wide discretion which the administration enjoys when it comes to assessing the abilities and performance of a probationer member of the temporary staff in accordance with the interests of the service, it is not for the 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, except where there are manifest errors of assessment or there is a misuse of powers.
(see para. 120)
See:
C-17/88 Patrinos v ESC [1989] ECR 4249, summary publication, para. 33
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
5. Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law. That principle, which serves to ensure sound administration, requires that the person concerned must have been afforded the opportunity effectively to make known his views on any incriminating information taken into account for the purpose of adopting such a measure.
Where a member of the temporary staff is dismissed at the end of the probationary period, the principle that the rights of the defence are to be observed applies by virtue of the third paragraph of Article 14 of the Conditions of Employment of Other Servants, which provides that the report that is to be made one month before the expiry of the probationary period on the ability of the member of the temporary staff to perform the duties pertaining to his post and also on his conduct and efficiency in the service ‘shall be communicated to the person concerned, who shall have the right to submit his comments in writing’. On the other hand, that principle does not place the administration under an obligation to warn a member of the temporary staff during the probationary period that his performance is unsatisfactory. Furthermore, even if the administration has failed to notify the staff member during his probationary period of his alleged incompetence, such circumstances would not be sufficient to constitute an infringement of the principle that the rights of the defence must be observed, since the end-of-probation report on which the administration relied in recommending the dismissal was duly communicated to the applicant.
(see paras 148-150)
See:
3/84 Patrinos v ESC [1985] ECR 1421, para. 19; C-344/05 P Commission v De Bry [2006] ECR I‑10915, paras 37 and 38
T-96/95 Rozand-Lambiotte v Commission [1997] ECR-SC I‑A‑35 and II‑97, para. 102; T-277/03 Vlachaki v Commission [2005] ECR‑SC I‑A‑57 and II‑243, para. 64; T-182/04 Van der Spree v Commission [2006] ECR-SC I-A-2-205 and II‑A‑2‑1049, para. 70