(Officials – Recruitment – Probationary period – Dismissal after the end of the probationary period)

Application: brought under Articles 236 EC and 152 EA, in which Mr Fernández Ortiz seeks annulment of the decision whereby the Commission dismissed the applicant after the end of his probationary period.

Held: The application is dismissed. The parties are ordered to bear their own costs.

Summary

(Staff Regulations, Art. 34(3) and (4))

(Staff Regulations, Art. 34(3) and (4))

3. Officials – Recruitment – Probationary period

(Staff Regulations, Art. 34(3))

(Staff Regulations, Art. 34(3) and (5))

1.Article 34(3) of the Staff Regulations, giving the appointing authority the discretion to dismiss a probationary official for professional inadequacy, and the time-limits it lays down may not be construed as meaning that that authority must, in any event, reach a decision before the end of the probationary period, and that it can lawfully dismiss a probationary official only before that period expires.

However, the fact that the appointing authority is not obliged to act within a mandatory period does not exempt it from having to reach a decision within a reasonable period, for it is obliged to ensure that the situation of each official accords with the Staff Regulations.

The period to be taken into consideration for assessing whether it has reached a decision within a reasonable period starts to run from the time when the end-of-probation report has been drawn up and communicated to the person concerned. It is in this manner and from this date that the probationary official is informed that the dismissal procedure has been initiated against him.

(see paras 41, 44-45)

See:

99/77 D’Auria v Commission [1978] ECR 1267, paras 18 and 19; 10/72 and 47/72 Di Pillo v Commission [1973] ECR 763, para. 9; 92/75 Van de Roy v Commission [1976] ECR 343, para. 12

2.It does not follow from any provision of the Staff Regulations that a probationary official who is the subject of an unfavourable probation report could be established implicitly solely as a consequence of the expiry of his probationary period. The very existence of a probationary period, its possible extension and the dismissal procedure provided for in Article 34(3) of the Staff Regulations shows that the probationary official does not have an unconditional right to be established at the end of his probation, but merely an expectation, since to be established a probationary official must have demonstrated adequate professional ability.

(see paras 53, 55)

See:

Di Pillo v Commission, para. 9

3.Failure to observe the time-limits laid down in Article 34(3) of the Staff Regulations when drawing up probation reports constitutes an irregularity which, although regrettable, is not such as to undermine the validity of those reports where the person concerned has been able to submit his comments within an adequate period, thereby enabling the appointing authority to carry out the assessment it is required to make.

Likewise, a delay in notification of the decision to extend the probationary period does not affect the lawfulness of that decision where the person concerned has been duly informed by the administration, in good time, of the fact that his probation was to continue and has thus not been kept in a state of uncertainty or in a ‘legal vacuum’.

(see paras 59-62)

See:

98/81 Munk v Commission [1982] ECR 1155, paras 8 and 9

T-96/95 Rozand Lambiotte v Commission [1997] ECR-SC I‑A‑35 and II‑97, para. 72

4.The discretion vested in the appointing authority under Article 34 of the Staff Regulations to dismiss a probationary official and to refuse to place him under the rules of the Staff Regulations applicable to established officials does not prejudice any general principle of law applicable to the Community civil service.

The act of dismissal may not be regarded as prejudicing the principle of sound administration or any other general principle, or as infringing the fundamental rights of the person concerned, where the probationary official is kept in his post until the decision of the appointing authority, receives his pay during that period, has his situation settled within a reasonable period and can, in addition, claim the benefit of the compensation provided for in Article 34(5) of the Staff Regulations.

(see paras 69-70)