JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

16 March 2009

Case T-156/08 P

R

v

Commission of the European Communities

(Appeal – Civil service – Probationary officials – Probation report – No act adversely affecting the applicant – Time-limit for initiating proceedings – Lateness)

Appeal: brought against the order of the European Union Civil Service Tribunal (First Chamber) of 19 February 2008 in Case F-49/07 R v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, requesting that that order be set aside.

Held: The appeal is dismissed. R is ordered to pay his own costs as well as those incurred by the Commission in the context of the present appeal.

Summary

1.      Procedure – Application initiating proceedings – Formal requirements – Statement of the forms of order sought

(Rules of Procedure of the Court of First Instance, Art. 44(1)(c) and (d))

2.      Officials – Actions – Act adversely affecting an official – Definition – Preparatory act – Measures taken during an official’s probation period – Not included

(Staff Regulations, Arts 34, 90 and 91)

3.      Officials – Actions – Procedural framework – Article 236 EC and Articles 90 and 91 of the Staff Regulations – Action for compensation based on infringement of Regulation No 45/2001

(Art. 236 EC; Staff Regulations, Arts 90 and 91; European Parliament and Council Regulation No 45/2001)

4.      Community law – Principles – Rights of the defence – Right to a judicial hearing – Obligation to include all the parties’ submissions in the decision – None

1.      In order to satisfy the requirements of Article 44(1)(c) and (d) of the Rules of Procedure of the Court of First Instance, an application need not necessarily contain formal claims provided that it is clear from the applicant’s overall arguments which is the disputed measure. However, an application which does not expressly refer to the measure whose annulment is sought and which does not enable that measure to be identified sufficiently precisely does not satisfy the abovementioned requirements.

(see paras 36-37)

See: C‑388/93 PIA Hifi v Commission [1994] ECR I‑387, para. 10

2.      In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, in principle, an act is open to review only if it is a measure definitively laying down the position of the institution at the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision. Acts preparatory to a decision do not adversely affect officials and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure.

That is precisely true of probation reports, which are intended to pave the way for the administration’s decision on whether to appoint the person concerned as an established official at the end of his probation period or to dismiss him, and of measures relating to the progress of the probation period adopted on the basis of Article 34 of the Staff Regulations, such as a decision to reassign the probationer to a different department to continue his probation, or a decision to extend the probation period. Those measures are clearly intended to enable the administration better to assess the probationer’s qualities and to pave the way for the decision on his establishment or dismissal to be taken at the end of the probation period, and they cannot therefore be contested independently by an action for annulment. They cannot be regarded as an act adversely affecting the official concerned, even if they involve negative assessments of him, since they do not, in themselves, alter his legal position. Those assessments may, if appropriate, be the subject of an action for damages for the harm allegedly suffered by the official in question.

(see paras 49, 55, 56, 58)

See: T‑275/02 D v EIB [2005] ECR-SC I‑A‑51 and II‑211, para. 44 and the case-law cited therein

3.      An action for compensation brought by an official against his institution and based on the alleged infringement by that institution of Regulation No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data falls within the scope of Article 236 EC and Articles 90 and 91 of the Staff Regulations, and it is therefore admissible only if the prelitigation procedure provided for in the Staff Regulations is complied with. Regulation No 45/2001 does not contain any provision to the contrary.

(see para. 73)

4.      The right to be heard in the context of judicial proceedings does not mean that the court has to incorporate in full in its decision all the submissions put forward by each party. The court, after listening to the submissions of the parties and assessing the evidence, has to decide whether or not to grant the relief sought in the application and give reasons for its decision.

(see para. 87)

See: C‑221/97 P Schröder and Others v Commission [1998] ECR I‑8255, para. 24