Language of document : ECLI:EU:F:2016:119

Provisional text

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)

12 May 2016

Case F‑50/15

FS

v

European Economic and Social Committee (EESC)

(Civil service — Temporary staff — Article 2(c) of the CEOS — Member of the temporary staff employed in order to carry out the duties of head of unit ‘for a group of the European Economic and Social Committee’ — Second paragraph of Article 44 of the Staff Regulations — Advancement in step granted retroactively at the end of a nine-month probationary period — Application by analogy to members of the temporary staff not provided for ratione temporis in the CEOS — Sui generis probationary period decided upon by contract outside the situations referred to in the CEOS — Extension of the contractual probationary period — Performance as head of unit held to be unsatisfactory — Reassignment to a non-management post — Entitlement to the advancement in step provided for in the second paragraph of Article 44 of the Staff Regulations)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which FS essentially seeks, first, annulment of the decision of the President of the European Economic and Social Committee (EESC) of 25 May 2014 not to confirm her in her position as head of unit and of the decision of the same date, also set out in a draft addendum to her employment contract as head of unit, by which the EESC reassigned her to a non-management post as a grade AD 12 administrator, and second, an order that the EESC compensate her for the material and non-material harm which she claims to have suffered.

Held:      The decision of the President of the European Economic and Social Committee dated 25 May 2014, as supplemented by Addendum No. 2 to FS’s employment contract, by which the authority empowered to conclude contracts of employment of the European Economic and Social Committee did not confirm her in her position as head of unit and reassigned her, with effect from 9 April 2014, to a non-management post is annulled. The European Economic and Social Committee is ordered to pay FS a sum of EUR 2000 by way of compensation for the non-material harm she has suffered. The claims for damages are dismissed as to the remainder. The European Economic and Social Committee is to bear its own costs and is ordered to pay the costs incurred by FS.

Summary

1.      Officials — Members of the temporary staff — Recruitment — Probationary period — Internal candidate already confirmed in her post as a member of the temporary staff — Assignment to a new post involving classification in a higher grade — Subject to a new probationary period — Lawfulness

(Conditions of Employment of Other Servants, Art. 14)

2.      Officials — Members of the temporary staff — Advancement in step — Staff member occupying a management post — Management bonus — Application by analogy of the second paragraph of Article 44 of the Staff Regulations to temporary staff prior to 1 January 2014 — Precluded — Parties having contractually agreed to apply that provision by analogy — Consequences of unsatisfactory performance of duties — Reassignment to a non-management post — Administration’s discretion — Limits

(Staff Regulations, Arts 7(1) and 44, second para.; Conditions of Employment of Other Servants, Art. 10(1))

3.      Officials — Members of the temporary staff — Recruitment — Management post — Probationary period — Conditions under which conducted — Alteration of those conditions in the course of the probationary period — Obligation on the person conducting the appraisal to take account of that alteration

(Staff Regulations, Art. 44, second para.; Conditions of Employment of Other Servants, Art. 14)

4.      Officials — Reports procedure — Appraisal report — Drawing up — Claim of psychological harassment — Unlawfulness of the appraisal report — Need for a link between the harassment and the negative assessments contained in the report — Burden of proof

(Staff Regulations, Arts 12a and 43)

1.      The authority empowered to conclude contracts of employment is entitled to require a member of the temporary staff, when taking up a position as head of unit, to undergo a probationary period as provided for in Article 14 of the 2004 Conditions of Employment of Other Servants, despite the fact that the staff member has already completed a six-month probationary period when he took up his original post with the institution in question, as an administrator in a grade lower than that of the post at issue.

In that regard, the head of unit post may legitimately be regarded by the authority empowered to conclude contracts of employment as involving an interruption in the career path of that member of the temporary staff, in the light of the new duties assigned to him and the higher grade attached to his new post.

(see paras 79, 80)

See:

Judgment of 16 July 2015 in Murariu v EIOPA, F‑116/14, EU:F:2015:89, para. 132

2.      The 2004 Conditions of Employment of Other Servants did not contain any provision for the application by analogy of the second paragraph of Article 44 of the 2004 Staff Regulations, which would have allowed the EU institutions to award temporary staff the advancement in step laid down in that provision solely for officials.

The application by analogy of that provision to temporary staff has been possible under the Staff Regulations only since the entry into force, on 1 January 2014, of the new Article 20(4) of the 2014 Conditions of Employment of Other Servants, which, under Article 2(13) of Regulation No 1023/2013 (which itself came into force on 1 November 2013), replaced Article 20(4) of the 2004 Conditions of Employment.

Even if the parties had agreed to the application by analogy of the second paragraph of Article 44 of the 2004 Staff Regulations by contractually providing for the completion of a probationary period and payment of a contractual bonus to the staff member concerned if he performed his management duties satisfactorily, the second paragraph of Article 44 of the 2004 Staff Regulations does not provide that the staff member must be reassigned to a non-management post if his performance of those duties was unsatisfactory.

In that regard, the employment contract and any addenda thereto fall, pursuant to Article 10(1) of the 2004 Conditions of Employment of Other Servants, within the scope of Article 7(1) of the 2004 Staff Regulations.

Even though the 2004 Staff Regulations, and particularly Article 7, do not expressly provide for the possibility of ‘reassigning’ an official, the institutions enjoy a wide discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks on condition, however, that the staff are assigned in the interest of the service and in conformity with the equivalence of posts. It follows that, in practice, decisions to reassign are subject, like transfers, as regards the protection of the rights and legitimate interests of the official or other staff member concerned, to the rules of Article 7(1) of the Staff Regulations.

(see paras 84, 85, 90, 92, 93)

See:

Judgment of 11 July 1996 in Aubineau v Commission, T‑102/95, EU:T:1996:104, para. 27

Judgments of 25 January 2007 in de Albuquerque v Commission, F‑55/06, EU:F:2007:15, para. 55; 19 June 2014 in BN v Parliament, F‑157/12, EU:F:2014:164, paras 45 and 46, and 10 September 2014 in Tzikas v ERA, F‑120/13, EU:F:2014:197, para. 91

3.      The rationale for the probationary period under the second paragraph of Article 44 of the 2004 Staff Regulations is similar to that for the probationary period required of temporary staff under Article 14 of the 2004 Conditions of Employment of Other Servants.

The authority empowered to conclude contracts of employment must ensure that a member of the temporary staff who is subject to a probationary period, such as that provided for in Article 14 of the 2004 Conditions of Employment of Other Servants, is in a position to complete that period under normal conditions. Thus, even though the probationary period is designed to enable the staff member’s abilities and conduct in his new (management) post to be assessed, and cannot therefore be treated in the same way as a training period, it is nevertheless essential that, during that probationary period, the staff member is given the opportunity by the authority empowered to conclude contracts of employment to demonstrate his professional abilities, by giving him appropriate instructions and advice in the light of the nature of the duties performed, as well as any verbal or written warnings enabling him to adjust and improve his performance in accordance with the requirements of the service.

From that point of view, the previous experience of a temporary staff member who is subject to a new probationary period should not be overlooked. Although such experience cannot, as such, call into question the need for the probationary period, it may, however, determine the degree of support he requires for the new probationary period to serve its purpose.

Moreover, it is only where there are rules within the institution which require an official to be set objectives at the beginning of an appraisal period that infringement of those rules is substantial and warrants a declaration that the contested appraisal is unlawful on the ground that the job description was not adequate in terms of fixing objectives.

Finally, a member of the temporary staff required to undergo a probationary period must be accorded appropriate material conditions to perform the duties assigned to him and, where the administration decides to alter the conditions under which the probationary period is conducted for reasons unrelated to the staff member concerned, the person conducting the appraisal must take account of that in determining to what extent the staff member achieved his objectives and, accordingly, appraising his performance.

(see paras 97-100, 103)

See:

Judgments of 12 June 2013 in Bogusz v Frontex, F‑5/12, EU:F:2013:75, paras 56 and 57; 26 March 2014 in CP v Parliament, F‑8/13, EU:F:2014:44, paras 57 and 58 and the case-law cited therein; 15 October 2014 in De Bruin v Parliament, F‑15/14, EU:F:2014:236, para. 44; 6 November 2014 in DH v Parliament, F‑4/14, EU:F:2014:241, paras 55 and 56, and 11 December 2014 in CZ v ESMA, F‑80/13, EU:F:2014:266, paras 67 and 68

4.      Just because it has been proved that an official or other staff member has suffered psychological harassment, that does not mean that every decision adversely affecting that person and occurring while he or she is the target of conduct constituting psychological harassment is thereby unlawful. It is still for the applicant to show that that conduct, if proven, has affected the content of the contested decision. It is thus for the applicant to adduce proof that the appraisal of his performance as head of unit in his appraisal form is an expression of psychological harassment against him.

(see paras 109, 110)

See:

Judgments of 24 February 2010 in Menghi v ENISA, F‑2/09, EU:F:2010:12, para. 69; 9 March 2010 in N v Parliament, F‑26/09, EU:F:2010:17, para. 86; 19 June 2013 in CF v EASA, F‑40/12, EU:F:2013:85, para. 79; 10 July 2014 in CW v Parliament, F‑48/13, EU:F:2014:186, para. 129, and 26 March 2015 in CW v Parliament, F‑41/14, EU:F:2015:24, paras 89 and 90