JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

2 March 2010

Case T-248/08 P

Frantisek Doktor

v

Council of the European Union

(Appeal — Civil service — Officials — Recruitment — Probationary period — Extension of probationary period — Report at the end of the probationary period — Dismissal at the end of the probationary period — Article 34 of the Staff Regulations — Distortion of facts and evidence — Obligation on the Civil Service Tribunal to state reasons)

Appeal: against the judgment of the European Union Civil Service Tribunal (Third Chamber) in Case F-73/07 Doktor v Council [2008] ECR-SC I-A-1-91 and II-A-1-479, and seeking, first, annulment of that judgment and, second, damages.

Held: The appeal is dismissed. Mr Frantisek Doktor and the Council of the European Union are ordered to bear their own costs incurred in connection with the appeal.

Summary

1.      Procedure — Statement of reasons for judgments — Scope

(Statute of the Court of Justice, Art. 36 and Annex I, Art. 7(1))

2.      Officials — Administration's duty to have regard for the welfare of officials — Scope

(Staff Regulations, Art. 34)

3.      Officials — Actions — Act adversely affecting an official — Definition — Preparatory act — Probationary report in order to decide whether to appoint as established official or dismiss — Not included

(Staff Regulations, Arts 34, 90 and 91)

4.      Appeal — Pleas in law — Inadequate statement of reasons

(Art. 253 EC)

5.      Officials — Decision adversely affecting an official — Obligation to state the reasons on which the decision is based — Scope — Inadequate statement of reasons

(Art. 253 EC; Staff Regulations, Art. 25)

1.      Judgments of the Civil Service Tribunal must contain an adequate statement of reasons to enable the General Court to exercise its judicial review. However, that obligation cannot be interpreted as meaning that the Civil Service Tribunal is obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence.

(see para. 64)

See: C‑274/99 P Connolly v Commission [2001] ECR I‑1611, para. 121; judgment of 4 October 2007 in C-311/05 P Naipes Heraclio v OHIM, not published in the ECR, para. 52; C‑120/06 P and C‑121/06 P FIAMM and FIAMM Technologies v Council and Commission [2008] ECR I‑6513, para. 91

2.      In the light of the duty to have regard for the welfare of officials, which requires a fair balance to be struck between the requirements of the service and the interests of the official concerned, the appointing authority may legitimately decide not to take strict measures immediately against the probationary official in question, but to offer him a second chance to prove that he satisfied the conditions to become an established official.

(see para. 79)

See: C‑298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 38

3.      A probationary report, as a preparatory act for a decision whether to appoint the probationary official as an established official or to dismiss him, does not constitute an act adversely affecting him.

(see para. 81)

See: T-156/08 P R v Commission [2009] ECR-SC I-B-1-11 and II-B-1-51, paras 48 to 55

4.      The extent of the obligation to state the reasons on which a decision of a Community institution is based is a question of law reviewable by the General Court on appeal against a judgment of the Civil Service Tribunal.

(see para. 92)

See: C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, para. 453; judgment of 28 February 2008 in C-17/07 P Neirinck v Commission, not published in the ECR, paras 50 to 52; C‑413/02 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, para. 30

5.      It is possible, first, to remedy an inadequate statement of reasons — but not one which is totally absent — for a decision of a Community institution adopted against an official even during the proceedings if, before his action was brought, the official concerned already had at his disposal information constituting the beginnings of a statement of reasons; second, to regard a decision as containing a sufficient statement of reasons if it is adopted in circumstances which are known to him and enable him to understand its scope; and third, as regards in particular decisions rejecting a promotion or a candidature, to supplement the statement of reasons in the decision rejecting a complaint, the reasons given for the latter decision being deemed to be the same as those for the decision which was the subject of the complaint.

(see para. 93)

See: T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, paras 32 and 36 and the case-law cited therein; T‑171/05 Nijs v Court of Auditors [2006] ECR-SC I‑A‑2‑195 and II‑A‑2‑999, paras 42 and 45; T-502/04 Lopparelli v Commission [2007] ECR-SC I-A-2-145 and II-A-2-995, paras 76 and 83; T‑93/03 Konidaris v Commission [2007] ECR-SC I-A-2-149 and II-A-2-1045, paras 51 to 54