JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

12 June 2013

Case F‑5/12

Slawomir Bogusz

v

European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)

(Civil service — Members of the temporary staff — Frontex staff — Change in the conditions for the conduct of the probationary period provided for by Article 14 of the CEOS — Dismissal at the end of the probationary period — Setting objectives — Ground raised for the first time at the hearing)

Application:      by Mr Bogusz pursuant to Article 270 TFEU, applicable to the EAEC Treaty by virtue of article 106a thereof, seeking annulment, firstly, of the decision of 15 April 2011 revoking his rights of administrator access to the computer network of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and of physical access to the servers and certain equipment rooms within Frontex’s Information and Communication Technology department and, secondly, of the decision of 24 May 2011 terminating his contract at the end of his probationary period.

Held:      The application is dismissed. Frontex is to bear its own costs and is ordered to pay one quarter of those incurred by Mr Bogusz. Mr Bogusz is to bear three quarters of his own costs.

Summary

1.      Officials — Members of the temporary staff — Recruitment — Probationary period — Purpose — Conditions — Change of conditions during the probationary period — Assessor’s obligation to take such changes into account — None where change connected to the conduct of the member of staff

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

2.      Officials — Members of the temporary staff — Recruitment — Probationary period — Decision to dismiss at the end of the probationary period — Statement of reasons — Requirements

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

3.      Officials — Members of the temporary staff — Recruitment — Probationary period — End of probation report — Drawing-up of probation report before end of probationary period — Lawfulness

(Conditions of Employment of Other Servants, Art. 14(3))

4.      Officials — Members of the temporary staff — Recruitment — Probationary period — Setting of objectives to be achieved — Change in the list of objectives at the time of drawing up the probation report — Not permissible

(Conditions of Employment of Other Servants, Art. 14(3))

1.      Although the purpose of a probationary period is to decide, on the basis of performance, whether a member of staff’s contract should be continued, it is still imperative that the probationary member of staff is given the opportunity, during that period, to demonstrate his qualities, which means in practice, that the physical working conditions of the official or probationer and the equipment available to him should be appropriate for the tasks entrusted to him.

Where the administration decides to alter the conditions under which a probationary period is served, for reasons unrelated to the official or member of staff in question, the assessor must take this into account in determining the extent to which the official or member of staff has achieved his objectives, and thereafter assessing his performance. By contrast, where such an alteration is made as a result of the conduct of the person concerned, that person cannot rely on it in support of a claim that he was not put in a position to carry out the duties entrusted to him and seek to justify, on that basis, the fact that he did not achieve the objectives set for him. Thus an official or member of staff may not rely on his own act so as to escape his professional obligations.

(see paras 56-57)

See:

5 March 1997, T‑96/95 Rozand-Lambiotte v Commission, para. 95

3 March 2009, F‑63/07 Patsarika v Cedefop, para. 39 and the case-law cited

2.      Where there are several grounds for a decision to terminate the contract of a member of staff at the end of a probationary period, in order for the decision to be lawful it is enough for some of the grounds to be valid and for it to be clear that the administration would have made the same decision on the basis of those grounds alone.

This is particularly so, given that a decision to terminate a contract at the end of a probationary period is different in nature from a dismissal of a member of staff after the probationary period has expired. While in the latter case the grounds justifying the termination of an established employment relationship must be examined in detail, in the former it is only a general examination that is required. This relates only to whether or not there are a number of positive considerations which came to light in the course of the probationary period and show that it would be in the interests of the service for the member of staff to continue in his post.

(see para. 75)

See:

9 July 2009, F‑85/08 Notarnicola v Court of Auditors, para. 70 et seq.; 28 March 2012, F‑36/11 BD v Commission, para. 83

3.      The administration need not wait until the end of the probationary period to determine whether the objectives set for that period have been achieved. The third paragraph of Article 14 of the Conditions of Employment of Other Servants provides that, although the authority authorised to conclude contracts of employment may decide to dismiss a member of the temporary staff whose work is obviously inadequate on the basis of the probation report, such dismissal must take place before the end of the probationary period, which presupposes that the report is drawn up before the period has ended. The fact that the report is drawn up before that time does not prevent the member of staff’s ability to achieve his objectives by the end of the period from being comprehensively assessed.

(see paras 78-79)

4.      As a rule, an assessor may not change the list of objectives assigned to an official or probationary member of staff at the time the probation report is drawn up, as to do so would be to hold against him the fact that he had not achieved objectives of which he was not aware at the beginning of the probationary period. Undoubtedly, where an official or member of staff has been assigned different objectives from those agreed at the beginning of the period, the assessor may disregard the original objectives and consider others in the probation report, but in such a case, the administration must establish that the new objectives were indeed assigned to the person concerned during the period. If new objectives are so assigned, the probation report must indicate this, so that (amongst other things) the assessor is aware that the probationer has had less time to achieve them than had been anticipated, and can take this into account.

(see paras 80-82)

See:

14 September 2010, F‑85/09 Rossi Ferreras v Commission, para. 58