JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)
11 December 2014
Case F‑80/13
CZ
v
European Securities and Markets Authority (ESMA)
(Civil service — Recruitment — Temporary staff — Extension of the probationary period — Dismissal at the end of the probationary period)
Application: under Article 270 TFEU, in which CZ challenges in particular the decision by which the European Securities and Markets Authority (ESMA) dismissed him at the end of his probationary period as a member of the temporary staff, and seeks an order that the ESMA compensate him for the material and non-material harm allegedly suffered.
Held: The action is dismissed. The European Securities and Markets Authority is to bear its own costs and is ordered to pay those incurred by CZ.
Summary
1. Officials — Temporary staff — Recruitment — Probationary period — End-of-probation report — Drawn up late — Validity
(Conditions of Employment of Other Servants, Art. 14(3))
2. Officials — Temporary staff — Principles — Rights of the defence — Scope — Obligation to hear the person concerned before adopting a decision to dismiss him — Observance of the rights of the defence in connection with dismissal at the end of the probationary period
(Conditions of Employment of Other Servants, Art. 14(3); Charter of Fundamental Rights of the European Union, Art. 41(2)(a))
3. Officials — Temporary staff — Recruitment — Probationary period — Purpose — Conditions under which completed
(Conditions of Employment of Other Servants, Art. 14)
1. The time-limit laid down in the first sentence of Article 14(3) of the Conditions of Employment of Other Servants does not constitute a period of notice, but is designed to ensure that the temporary 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. 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 by which the authority authorised to conclude contracts of employment dismisses the temporary staff member or extends his probationary period.
It follows that a member of the temporary staff remains a probationer until his professional abilities have been assessed by the authority empowered to conclude contracts of employment on the basis of a report drawn up by his line manager.
(see paras 35, 36)
See:
Judgments in Fernández Ortiz v Commission, F‑1/06, EU:F:2007:25, para. 56, and Notarnicola v Court of Auditors, F‑85/08, EU:F:2009:94, paras 33 and 42 to 46
2. Observance of the rights of the defence constitutes a fundamental principle of EU law. It follows from that principle that the person concerned must be given the opportunity, before the drawing up of a decision adversely affecting him, to make his views effectively known as to the truth and relevance of the facts and circumstances on which that decision was based. The principle was set out in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, which recognises that every person has the right to be heard before any individual measure which would affect him or her adversely is taken.
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 Article 14(3) 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 efficiency and conduct in the service is to be communicated to the person concerned, who has the right to submit his comments in writing.
(see paras 55-57)
See:
Judgment in Commission v De Bry, C‑344/05 P, EU:C:2006:710, para. 37
Judgment in L v Parliament, T‑317/10 P, EU:T:2013:413, para. 81
Judgments in Sapara v Eurojust, F‑61/06, EU:F:2008:98, para. 149, and CH v Parliament, F‑129/12, EU:F:2013:203, para. 33
3. A decision to dismiss at the end of the probationary period must be annulled if the probationer has not been allowed to complete his probationary period under normal conditions. More specifically, 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 requirement means in practice that the probationer must be given appropriate instructions and advice in order to enable him to adapt to the specific needs of the post which he occupies. Moreover, the required level of instructions and advice must be assessed not in the abstract, but in practical terms, taking account of the type of duties performed.
A temporary staff member’s right to serve his probationary period under proper conditions is sufficiently guaranteed by a verbal warning enabling him to adapt and improve his performance according to the requirements of the service.
(see paras 67, 68)
See:
Judgment in Giannini v Commission, F‑49/08, EU:F:2009:76, paras 65 and 84