Zoher Brahma v Court of Justice of the European Union (T-603/16)

Contents

Judgment of the General Court (Third Chamber)22 November 2018^note(Civil service — Probationers — Probationary period — Extension of the probationary period — Dismissal at the end of the probationary period — Article 34 of the Staff Regulations — Misuse of powers — Obligation to state reasons — Article 25(2) of the Staff Regulations — Right to be heard — Article 90(2) of the Staff Regulations — Responsibility — Formal requirements — Rule of correspondence between complaint and action — Admissibility — Material harm — Non-material damage — Causal link)In Case T‑603/16,Zoher Brahma, residing in Thionville (France), represented by A. Tymen, lawyer,vCourt of Justice of the European Union, represented initially by J. Inghelram and L. Tonini Alabiso, and subsequently by J. Inghelram and Á. Almendros Manzano, acting as Agents,THE GENERAL COURT (Third Chamber),composed of S. Frimodt Nielsen, President, V. Kreuschitz (Rapporteur) and N. Półtorak, Judges,Registrar: M. Marescaux, Administrator,having regard to the written part of the procedure and further to the hearing on 13 November 2017,gives the following

JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.…

III.Law

A.The claim for annulment…

8.The first plea in law, alleging infringement of the maximum duration of the probationary period allowed under Article 34 of the Staff Regulations

182The applicant claims that the duration of his probationary period exceeded the maximum duration of 15 months allowed under Article 34 of the Staff Regulations, which gives rise to the annulment of the decision not to establish the applicant and his establishment as an official. According to the applicant, the 7 months during which he was on sick leave do not affect the calculation of the duration of his probationary period, so that his probationary period lasted 16.5 months instead of the maximum period of 15 months allowed under Article 34 of the Staff Regulations.

183In addition, the applicant considers that both the decision not to establish him and the first probationary report were adopted after the expiry of the probationary period, in breach of Article 34 of the Staff Regulations. Since the Court of Justice of the European Union (‘the Court of Justice’) had not stated its intention to dismiss the applicant before the end of the probationary period, the applicant claims that he should be established as an official. Moreover, the applicant considers that, in reality, his probationary period had been extended until 5 May 2015, the date of the second probationary report, so that his probationary period lasted more than 17 months. On those grounds, he also alleges infringement of Article 34(4) of the Staff Regulations, justifying the annulment of the decision not to establish him.

184The Court of Justice denies having infringed Article 34 of the Staff Regulations. It considers that the last sentence of the second subparagraph of Article 34(1) of the Staff Regulations must be interpreted by taking into account not only the wording of that article, but also the context in which it occurs and the objectives pursued by the rules of which it forms part. It is apparent from the context of that provision that the probationary period must be at least 9 months. Moreover, the purpose of that provision is to make it possible to assess the suitability and conduct of the probationer in order to secure for the institution the service of officials of the highest standard of ability, efficiency and integrity.

185According to the Court of Justice, the present case is a case not provided for by the EU legislature when it adopted Article 34 of the Staff Regulations. The applicant’s extended period of sick leave lasting 7 months during the initial probationary period would have prevented him from completing the minimum 9‑month probationary period if it had been extended by only 6 months to reach 15 months in total. According to the Court of Justice, if the probationary period had been extended until 28 February 2015, that is to say 15 months after the start of the applicant’s probationary period, the applicant would have been assessed only over a period of 8 months. The argument put forward by the applicant, if upheld, would sacrifice the aim of establishing a minimum probationary period, that is to guarantee, in the light of Article 27 of the Staff Regulations, that only a probationer demonstrating the highest standards may be established as an official. Moreover, that argument could lead, in a case such as this one, to the appointing authority having to dismiss a probationer on the ground that he was unable to demonstrate those standards, although he could have done so, depending on the circumstances, if he had indeed completed a 9-month probationary period. Such a consequence is clearly contrary to the interests of probationers who, during their probationary period, are involuntarily prevented from completing their duties for one of the reasons set out in the second subparagraph of Article 34(1) of the Staff Regulations and is discriminatory for those probationers in comparison to those who have completed a 9-month probationary period or even a probationary period lasting up to 15 months. In addition, the Court of Justice points out that the applicant acknowledged, in his observations on the first probationary report, that he had an interest in his probationary period being extended beyond the maximum duration of 15 months and that he did not contest the decision to extend the probationary period of 1 October 2014.

186In any event, the Court of Justice considers that, even if the duration of the applicant’s probationary period was inconsistent with the second subparagraph of Article 34(1) of the Staff Regulations, that inconsistency could not, in itself, lead to the applicant being established as an official or the invalidity of the decision not to establish him without taking the applicant’s professional qualities into account.

187So far as concerns the applicant’s claim that the actual probationary period lasted until 5 May 2015, the Court of Justice considers that the second probationary report evaluates the applicant’s conduct up to 15 April 2015, in accordance with the decision to extend the probationary period until that date. In addition, it considers that a delay in drawing up the end of probation report cannot call into question the validity of that report or, depending on the circumstances, the decision not to establish the official in question.

188Having regard to the arguments put forward by the parties, it should be borne in mind that the applicant started his probationary period on 1 December 2013, that he was on sick leave from 13 January 2014 to 17 August 2014 and that, by decision of 1 October 2014, his probationary period was extended until 15 April 2015 due to his sick leave. The applicant infers from the above that his probationary period was extended from 1 December 2013 to 15 April 2015 and, therefore, that his probationary period lasted 16.5 months.

189Under the second subparagraph of Article 34(1) of the Staff Regulations, the total length of the probationary period must in no circumstances exceed 15 months. According to a literal interpretation of that provision, nothing that prevents a probationer from performing his duties during the probationary period can justify extending the probationary period beyond 15 months from the date on which that period started.

190Neither the context nor the objectives pursued by the Staff Regulations, which must be considered when interpreting one of the provisions of those regulations (see, to that effect, judgments of 18 November 1999, Pharos v Commission, C‑151/98 P, EU:C:1999:563, paragraph 19, and of 14 July 2016, Latvia v Commission, T‑661/14, EU:T:2016:412, paragraph 39 and the case-law cited), invalidate that interpretation of the second subparagraph of Article 34(1) of the Staff Regulations.

191As regards the objective pursued by the second subparagraph of Article 34(1) of the Staff Regulations, it has been held that setting a maximum length for the probationary period seeks, on the one hand, to limit, in the interests of both the administration and the probationer, the period during which the employment relationship is affected by lack of security and, on the other, to determine the period during which the official’s conduct must be assessed by the appointing authority (judgment of 14 February 2007, Fernández Ortiz v Commission, F‑1/06, EU:F:2007:25, paragraph 53).

192That objective confirms the aforementioned interpretation of the second subparagraph of Article 34(1) of the Staff Regulations. By setting, independently of the reasons preventing the probationer from performing his duties, the maximum duration of his probationary period at 15 months — from the start thereof — the Staff Regulations set an absolute limit in time, in the interest of legal certainty, for the insecure employment relationship between the probationer and the administration and determines the maximum duration of the probationary period which may be taken into account by the appointing authority when assessing the probationer’s conduct.

193The interpretation of the second subparagraph of Article 34(1) of the Staff Regulations, set out above, is not called into question by the twofold objective of the probationary period, that is to enable during the probationary period, on the one hand, institutions to verify whether they are recruiting the service of officials of the highest standard of ability, efficiency and integrity in accordance with the requirements of Article 27 of the Staff Regulations (see, to that effect, judgment of 6 November 2014, DH v Parliament, F‑4/14, EU:F:2014:241, paragraph 52) and, on the other, probationers to demonstrate their ability to perform the duties pertaining to their posts and also their efficiency and conduct in the service (see, to that effect, judgments of 5 March 1997, Rozand-Lambiotte v Commission, T‑96/95, EU:T:1997:25, paragraph 95, and of 18 October 2007, Krcova v Court of Justice, F‑112/06, EU:F:2007:178, paragraph 48). Those objectives of verifying and demonstrating the ability of the probationer do not preclude the fact that the period for achieving them is limited in time. Even when, during the probationary period, the probationer is prevented from performing his duties by sickness, maternity leave, or an accident, the objectives of demonstrating and verifying the ability of the probationer cannot justify there being no maximum duration of the probationary period, in so far as those objectives must be reconciled with the legitimate interest of legal certainty. That interest justifies the express requirement laid down by the legislature for a maximum duration of the probationary period.

194As regards the context, the first subparagraph of Article 34(1) of the Staff Regulations does not preclude the interpretation set out in paragraph 189 above of the second subparagraph of that provision.

195The first subparagraph of Article 34(1) of the Staff Regulations provides that all officials must serve a 9-month probationary period before they can be established.

196While it is true that that provision provides that the probationary period is, in principle, 9 months in duration, it cannot be inferred therefrom, as the Court of Justice does, that the period during which the probationer must demonstrate his ability and the administration must evaluate it is at least 9 months in duration.

197Pursuant to Article 34(3) of the Staff Regulations, the report on the ability of the probationer must be drawn up one month at the latest before the expiry of the probationary period. That report, which forms the basis of the decision to establish or to dismiss the probationer, thus relates to the ability of the probationer to perform his duties over a period of less than 9 months. Failure to take into account the ability of the probationer to perform his duties during the probationary period after the probationary report has been made is not sufficient, in principle, to affect the validity of the decision to establish or to dismiss the probationer.

198In the same way, under the second subparagraph of Article 34(1) of the Staff Regulations, the appointing authority may extend the probationary period of 9 months referred to in the first subparagraph of that provision where, during that period, the probationer is prevented, by sickness, maternity leave, or accident, from performing his duties for a continuous period of at least one month. It follows that where the appointing authority refuses such an extension, in exercising its wide margin of discretion and for valid reasons relating to the ability, efficiency and conduct in the service of the probationer, despite the fact that the probationer was prevented from performing his duties during the probationary period for a continuous period of at least one month, the ability of that probationer must be demonstrated and evaluated over a period of less than 9 months.

199In addition, still in accordance with the second subparagraph of Article 34(1) of the Staff Regulations, where the probationer is prevented from performing his duties for a period of less than one month or which does not constitute a continuous period of at least a month, the appointing authority cannot extend the probationary period of 9 months despite that impediment. In such a case, the ability of the probationer in question must also be demonstrated and evaluated over a period of less than 9 months.

200Lastly, Article 34(2) of the Staff Regulations allows the appointing authority to make a probationary report at any time before the end of the probationary period if the probationer’s work is proving obviously inadequate. In such circumstances, the ability of the probationer will have been evaluated over a probationary period of less than 9 months.

201Accordingly, while a probationer is required to undertake a probationary period of 9 months in order to be established as an official, it is not required that he performs his duties over the entire 9-month period or that the demonstration and evaluation of his ability relate to the effective performance of his duties during a period of at least 9 months. A probationer does not possess the right to be allowed a full 9 months in which to prove himself (Opinion of Advocate General Warner in van de Roy v Commission, 92/75, EU:C:1976:19, p. 357). It is required only that he be given the opportunity to show his ability (see, to that effect, judgment of 1 April 1992, Kupka-Floridi v ESC, T‑26/91, EU:T:1992:53, paragraph 44 and the case-law cited). The first subparagraph of Article 34(1) of the Staff Regulations does not therefore preclude the interpretation set out in paragraph 189 above of the second subparagraph of that provision.

202It the present case, it must be stated that the applicant’s probationary period started on 1 December 2013 so that, pursuant to the second subparagraph of Article 34(1) of the Staff Regulations, it should have ended on 28 February 2015 at the latest. The Court of Justice neither claimed that it would not have been possible to evaluate the applicant’s ability during that period, nor called into question the lawfulness of the second subparagraph of Article 34(1) of the Staff Regulations. Therefore, by extending the applicant’s probationary period until 15 April 2015 due to the applicant’s sick leave lasting 7 months during the probationary period, the Court of Justice infringed the second subparagraph of Article 34(1) of the Staff Regulations.

203That finding is not called into question by the fact alleged by the Court of Justice that the applicant did not challenge the decision of 1 October 2014 extending his probationary period until 15 April 2015 due to sickness during the initial probationary period. An intermediate measure is not capable of forming the subject matter of an action if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step (see order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11 P, not published, EU:C:2012:292, paragraph 57 and the case-law cited). The decision of 1 October 2014 represents a preparatory step in making the decision not to establish him and the infringement of the second subparagraph of Article 34(1) may be relied on in support of an action directed against that final decision which adversely affects the applicant and which is challenged in the present case.

204In addition, the applicant incorrectly infers from the adoption of the second probationary report and the decision not to establish him after the maximum probationary period of 15 months that his probationary period was automatically extended until the date of adoption of those decisions. Such an interpretation is inconsistent with the maximum duration of the probationary period allowed under the second subparagraph of Article 34(1) of the Staff Regulations. While, in principle, the probationary report must be made one month at the latest before the expiry of the probationary period so that the decision to establish or dismiss the probationer coincides, as far as is possible, with the end of the probationary period or the extension thereof, the adoption of those decisions after the duration of the probationary period has no bearing on their validity and does not give rise to an implicit extension of the duration of the probationary period until the date of their adoption. Accordingly, it has been held that whilst it is true that a delay in drawing up the end of probation report constitutes an irregularity having regard to the express requirements of the Staff Regulations, this irregularity, regrettable as it may be, is not such as to call into question the validity of the report or, depending on the circumstances, the decision by which the institution dismisses the probationer or extends his probationary period (judgments of 12 July 1973, di Pillo v Commission, 10/72 and 47/72, EU:C:1973:84, paragraph 5; of 8 October 1981, Tither v Commission, 175/80, EU:C:1981:221, paragraph 13; and of 11 December 2014, CZ v AEMF, F‑80/13, EU:F:2014:266, paragraph 35). The period of one month in question does not constitute a period of notice, but is intended to ensure that the probationer may submit his observations before the institution takes a decision on whether the probationer continues in his post on a date coinciding, as far as is possible, with the end date of the probationary period (see, to that effect, judgment of 11 December 2014, CZ v AEMF, F‑80/13, EU:F:2014:266, paragraph 35).

205For the foregoing reasons, the first plea in law, alleging infringement of the second subparagraph of Article 34(1) of the Staff Regulations must be upheld.

206It follows that the decision not to establish the applicant as an official must be annulled. That decision is based on evidence after 28 February 2015, the date on which the applicant’s probationary period should have ended pursuant to the second subparagraph of Article 34(1) of the Staff Regulations. That provision lays down a substantive condition of establishment, since it sets the period during which the ability in the service of the probationer must be assessed by the administration with a view to his establishment as an official or his dismissal. The evidence after 28 February 2015 taken into account by the appointing authority therefore necessarily constitutes the factual basis on which it exercised its wide margin of discretion in deciding not to establish the applicant as an official.

207Accordingly, it is apparent from the second probationary report on which the decision not to establish him is based that the applicant’s conduct, during the organisation of the hearing on 18 March 2015, was taken into account in order to illustrate his lack of judgment and common sense and his difficulty in adapting to situations that are not routine. That same behaviour was used in the second probationary report to illustrate the negative impact of his contribution to working conditions within his department. The applicant’s unexplained absence from the English course on 24 March 2015 and the number of adjustments made to the applicant’s working time management system between 1 January and 17 April 2015 were taken into account in the second probationary report to demonstrate the applicant’s difficulties in organising himself and the impact that had on the management structure. The rate of completion of the hearing transcripts by the applicant between 27 March and 27 April 2015, his absence from work on 17 April 2015, and the hearings on 10 and 17 March 2015 at which he was present were taken into account in the second probationary report in order to assess the quantity of his services. Moreover, the assessment of the applicant’s conduct in the service and, in particular, the lack of reasons for the applicant’s superiors to place their trust in him were set out in the second probationary report on the basis of a number of adjustments made to the working time management system between 1 January and 17 April 2015, the problems encountered by the applicant with regard to clocking in and out working hours on 24 March and 14 April 2015 and the requests made for leave without first consulting his superior in respect of the week of 20 April 2015. Lastly, the second probationary report was based on the applicant’s conduct during preparations for the hearing on 18 March 2015 in order to illustrate his difficulty in working as part of a team and the inappropriate character of his attitude in relations with others.

208It also follows that the decision rejecting the complaint must be annulled, in so far as the Complaints Committee considered there to be no infringement of the second subparagraph of Article 34(1) of the Staff Regulations.

209The appointing authority and the Complaints Committee have a wide discretion when it comes to assessing the abilities and performance of an official during his probationary period, and it is not for the General Court to substitute its own assessment for that of the administration in so far as concerns the outcome of a probationary period and the suitability of a candidate for permanent appointment in the European Union civil service, its review being confined to establishing that there has been no manifest error of assessment or misuse of powers (see, to that effect, judgments of 25 March 1982, Munk v Commission, 98/81, EU:C:1982:111, paragraph 16; of 5 April 1984, Alvarez v Parliament, 347/82, EU:C:1984:147, paragraph 16; and of 5 March 1997, Rozand-Lambiotte v Commission, T‑96/95, EU:T:1997:25, paragraph 112).

210In addition, it is apparent from settled case-law that it is not for the General Court, in the context of a review of legality under Article 263 TFEU, to substitute its own reasoning for that of the author of the contested act (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited). That is also the case in the context of a review of legality carried out by the General Court under Article 270 TFEU (see, to that effect, judgment of 15 January 2014, Stols v Council, T‑95/12 P, EU:T:2014:3, paragraph 29 and the case-law cited). It follows that it is not for the General Court to decide whether the assessments made in the decision not to establish the applicant relating to the probationary period carried out between 1 December 2013 and 28 February 2015 are sufficient to justify the decision not to establish the applicant as an official.

211Consequently, for the reasons set out above, the decision not to establish the applicant as an official and the decision rejecting the complaint must be annulled.

212Contrary to what the applicant claims, the annulment of those decision cannot, however, lead to his establishment. An official may only be established in accordance with the requirements and procedures laid down by the Staff Regulations (see, to that effect, judgment of 13 May 1970, Fournier v Commission, 18/69, EU:C:1970:37, paragraph 8). There is no provision of the Staff Regulations that sanctions failure to comply with the probationary period by establishing an official without assessment. A probationer cannot, therefore, be established as an official solely as a consequence of the expiry of his probationary period (see, to that effect, judgment of 14 February 2007, Fernández Ortiz v Commission, F‑1/06, EU:F:2007:25, paragraph 53).…

Operative part

On those grounds,THE GENERAL COURT (Third Chamber)hereby:

1.Annuls the decision of the Registrar of the Court of Justice of the European Union, acting as the appointing authority, of 17 July 2015 dismissing Mr Zoher Brahma at the end of his probationary period, with effect from 31 July 2015;

2.Annuls the decision of the Complaints Committee of 16 March 2016 rejecting the complaint against the decision of the Registrar of the Court of Justice of the European Union, acting as the appointing authority, of 17 July 2015 dismissing Mr Brahma at the end of his probationary period, with effect from 31 July 2015;

3.Dismisses the action as to the remainder;

4.Orders the Court of Justice of the European Union to pay the costs.

Delivered in open court in Luxembourg on 22 November 2018.