C-290/82

JUDGMENT OF 17. 11. 1983 — CASE 290/82

the end of his probationary period the bound by the assessments made at the probation report was supplemented time õf recruitment, whether the by further comments made by his probationary official deserves to be superiors to the appointing authority established in the post to which he is not such as to affect adversely the aspires. That decision involves a probationary official where his right comprehensive assessment of the to a hearing was respected at every qualities and conduct of the stage of the procedure and he had the probationary official, taking account opportunity, before the final decision of both the positive and the negative was taken by the competent authority, factors revealed in the course of the to submit his point of view on all the probationary period. criticisms of his behaviour during the probationary period.

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, represented by François- Xavier Zwickert, Director of Administration, assisted by Alex Bonn of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 22 Côte d'Eich, defendant,

APPLICATION for the annulment of the decision of the President of the Court not to establish the applicant at the end of her probationary period,

T H E C O U R T (Second Chamber)

composed of: K. Bahlmann, . President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General : P. VerLoren van Themaat Registrar: H. A. Rühi, Principal Administrator

gives the following

The report contains an assessment of the It is possible, however, that Mrs Tréfois main duties carried out during the could work satisfactorily in a different probationary period with six heads post in the Court where the conditions considered "satisfactory" and four heads required were less onerous and which considered "unsatisfactory"; it refers in involved duties better suited to her particular to Mrs Tréfois physical un- interests." suitability, frequent absences, limited interest and inadequate output, resulting The report was communicated to Mrs from her absences. Tréfois on 29 March 1982; on the same day she submitted her objections in In the statement of the grounds for those writing and stated the reasons for which marks, the report makes the following she was unable to accept any of the comments: negative observations in the report.

In a letter of 16 July 1982, Mrs Tréfois terminating her probationary period was sent a note addressed by the without establishing her. President to the Director of the Library and Documentation Directorate and memoranda in reply from the latter and from Mrs Tréfois's superior. On 29 July I l l — C o n c l u s i o n s of t h e p a r t i e s 1982 Mrs Tréfois submitted her comments on those memoranda to the President in writing. The applicant claims that the Court should: Mrs Tréfois's complaint was rejected by the President of the Court on 23 Declare her application admissible and September 1982; that decision was well founded; consequently, annul the communicated to Mrs Tréfois on 17 decision of 5 May 1982 terminating her September 1982. probationary period without establishing her and, in so far as necessary, the probation report drawn up prior to that decision; II — W r i t t e n p r o c e d u r e Annul the decision of the President of the Court of 23 September 1982 On 11 November 1982, Mrs Tréfois rejecting her complaint; brought this application for the annulment of the President's decision rejecting her complaint, of the decision Order the examination of the applicant terminating her probationary period and the witnesses cited in the without establishing her and, in so far as application, pursuant to Article 47 of the necessary, the probation report drawn up Rules of Procedure; prior to that decision. Order the defendant to pay the entire The written procedure followed the costs, including the fees of the usual course. applicant's Counsel.

procedure and on the scope of judicial ficials have no vested right to be review in the matter. appointed permanently; the report at the end of the probationary period has the same importance for them and is just as T h e applicant claims that the decision uncertain as the decision of the Selection terminating her probationary period Board for the competition. A pro- without establishing her and the bationary official who has been given an probation report itself are vitiated by unfavourable probation report is not infringement of essential procedural entitled to bring a substantive action requirements, that the decision of the challenging the actual conclusions of the President of the Court rejecting her report, which constitute merely a complaint was taken following a misuse synthesis of the evaluations of his work of procedure and that the contested by his superiors; he may bring only an decisions are all contrary to the principle action challenging its legality, based on prohibiting discrimination on grounds of sex. precise grounds ror annulment, anu directed against the procedure and grounds on which the report is based. The Court considers that all the submissions put forward in support of the application are inadmissible or B — Submission on the infringement of unfounded. essential procedural requirements

TRÉFOIS v COURT OF JUSTICE

The latter has no grounds for criticizing a measure that does not adversely affect her; the submission is therefore inadmissible. (b) According to Article 34 (2) of the Staff Regulations, the probation report must be made not less than one month before the expiry of that period. In this (b) The report at the end of the case, the report was not made until 24 probationary period was indeed dated 24 March 1982 and was not communicated March 1984, although it ought to have to the applicant until 29 March, that is, been drawn up by 28 February at the at best, only two days before the end latest.

It is

also unfounded: the applicant was not The applicant states that, so far as required to submit her comments within absences from the office during working a prescribed period; since the procedure hours were concerned, she had not been is not contentious, the Staff Regulations accused of failing to perform her work do not provide for the assistance of an satisfactorily. adviser. The applicant's alleged preference for other duties does not demonstrate any Submission that the statement of reasons lack of interest in her library duties and was inaccurate is not based on any objective criterion. In any event, if she did display any lack of interest, it would not lead to her The applicant states that the decision discharging her duties improperly; it to terminate her probationary period could have an influence on the report at without establishing her was taken the end of the probationary period only essentially on the basis of the probation if it continued and was marked by report; in order to determine the reasons behaviour affecting the quantity and upon which the contested decision was quality of work. based, it is therefore necessary to refer to that report. The report makes three complaints concerning the . applicant, The Court states that the applicant does which are unfounded and untrue; there not contest the truth of the complaints is therefore no substantive or legal jus- which were made against her, but seeks tification for the contested decision. to justify her attitude; she is attempting to call in question and refute the reporting officer's criticisms. The Court stresses that the reporting officer's evaluation, upon which the In those circumstances, the reasons upon probation report and its conclusions are which the decision was based cannot be based, may not be called in question in manifestly erroneous. an application challenging the legality of the decision; the same applies to the reasons upon which it is based. The Lack of continuity in the work submission as worded is therefore inadmissible; the position would be different only if the contested measure The applicant points out that all her were based on substantively inaccurate absences on family or health grounds reasons and if the error contained in the were justified; furthermore, the Court reasons were manifest. The submission as has not inferred, let alone shown, that drafted does not meet that requirement. there was any deterioration in her work as a result.

duly indicated where she could be found C — Submission of misuse of procedure for the time being. The applicant offers the evidence of witnesses on that point. The applicant claims that the sup- plementary information requested by the President of the Court from the Director The Court states that the applicant is not of the Documentation and Library disputing, but trying to justify the Directorate and from the Head of the matters complained of. In fact, she is Library Division constitutes an illegal chiefly accused of being frequently course of action. absent not from her office but from her place of work. The complaint under Article 90 (2) of the Staff Regulations is in the nature of an internal appeal to the authority that Physical unsuitability for the duties took the contested decision. That involved in the post authority must obtain any information it considers useful and necessary before adopting its decision; it may not request supplementary information after the The applicant considers that the require- complaint has been submitted. ment of particular physical suitability for carrying out the duties attaching to her post has no factual or legal basis. The President of the Court permitted the Legally, the qualifications required applicant's superiors to refute the contain no specific provision and, in fact, arguments contained in her complaint, to the post held by the applicant does not widen the reasons for their unfavourable require any special physical strength and, assessment and even to submit new in any event, the appointing authority reasons. The President of the Court was bears full responsibility for assigning an thus able to base his decision rejecting official, after a competition and a satis- the complaint on considerations which factory medical examination, to a he could not have put forward if those particular post. irregular steps, which constituted a misuse of procedure, had not been taken.

objections put forward by the applicant amend the reasons they gave by alleging in her complaint, he cannot be accused that the delay in carrying out work arose of having obtained useful and necessary out of considerations relating to her information too late. physical unsuitability; a valid opinion on that matter can, in any event, be furnished only by a doctor, and not by her superior. The complaint provided for in Article 90 (2) of the Staff Regulations is in addition a means of redress that must be used before an appeal is filed with the Court; The circumstances in which the post it is thus an administrative first instance, previously held by the applicant was provided for in order to prepare for and filled confirm that her superiors wished disencumber the contentious procedure. to replace her by a man and bear out the The authority to which a complaint is submission that she was discriminated submitted must give a reasoned decision against on the ground of sex. and for that purpose it must carry out an investigation and hear both sides. The President of the Court duly complied with that obligation.. The Court denies that it discriminated on grounds of sex. The criticism in the probation report that she was physically unsuitable cannot be isolated from the The applicant's argument also lacks any other complaints made against her, and factual basis: the contested decision in particular that of frequent absences merely repeats and amplifies the and a lack of regularity in carrying out criticisms set out in the probation report, her duties. The applicant's offer of which the applicant has perfectly well evidence must be rejected. understood.

In relation to the appointing authority's legality are limited, they must be discretion and the scope of the Court's submitted by the Court to an especially powers of review in relation to the exhaustive and careful investigation, in establishment of officials at the end of order to discover whether the adminis- the probationary period, the applicant trative authority properly exercised the essentially argued that, although the discretion conferred upon it and whether competent authority has a discretionary it adopted an arbitrary decision. The power its decision is final and may not Court of Justice stated that it concurred be based on any grounds other than in that analysis. those resulting from a comparison between the probation report and the observations of the official concerned. As regards the substance, the parties The Court's power to review the developed arguments the put submissions forward during and the grounds for the administrative action is written procedure. limited to error in law, substantively inaccurate or non-existent facts, and misuse of procedure or powers. Since the The Advocate General delivered his grounds for bringing an action to review opinion at the sitting on 20 October 1983.

Decision

1 By an application received at the Court Registry on 11 November 1982, Mrs Désirée Tréfois, a former probationary official at the Court of Justice of the European Communities in Grade C 5, brought an action for the annulment of the decision of 5 May 1982 terminating her probationary period without establishing her, the probation report drawn up prior to that decision and the decision of the President of the Court of 23 September 1982 rejecting her complaint.

3 On 24 March 1982, the Head of the Library Division, in his capacity as the direct superior of the applicant, drew up the report at the end of the probationary period provided for by the Staff Regulations. In the space for the assessment of ability, efficiency, and conduct in the service - in which the possible marks are: excellent, very good, good, satisfactory,unsatis- factory — the Head of the Library Division entered satisfactory tor the knowledge needed for the post held, initiative, ability to organize, relations in the department, relations with others and punctuality However, he entered marks of "unsatisfactory" for judgment and adaptability, mentioning "physical unsuitability" under sense of responsibility and devotion to duty with the further mentions "frequent absences" and "limited interest , and for the quality of work and speed with which work is performed with the comment "the result of absences".

4 In the statement of reasons, after a description of the applicant's main duties which involved the daily transportation and storage of books, the Head of the Library Division stated that "the large number of books to be handled daily requires a certain physical strength on the part of the person carrying out these duties; in my opinion Mrs Tréfois's strength is not sufficient . He added that in her duties of stockroom assistant which required a regular attendance, in particular to avoid backlogs building up it had been noted that the applicant "is frequently absent for family or health reasons and that her "very limited interest in the work" was explained by the preference which she had expressed for secretarial work.

9 On receiving that complaint, the President of the Court requested sup- plementary information from the Director of the Library and Documentation Directorate and the Head of the Library Division. In a memorandum dated 8 July 1982, the Head of the Library Division stated that during the probationary period the applicant's state of mind and efficiency at work were subject to frequent and unpredictable changes, she was absent from her workplace for hours without saying where she was going, that books piled up regularly without being replaced on the shelves and that replacement therefore required "a physical effort which can scarcely be asked of a woman", that books put on to the shelves were not arranged in any order, so that consultation became impossible until they were eventually sorted out and put back where they belonged, and finally that relations with the applicant were difficult both for her colleagues who had to stand in for her and for her superiors, who could not make her follow their instructions. Repeated warnings given to her had made no difference. The Head of the Library Division observed that it was in order to give her an opportunity to improve that he had not asked for her to be dismissed even before the end of the probationary period.

io The Director of the Library and Documentation Directorate, in a memorandum of the same date, added that the applicant was careless, in particular in relation to entering cards showing which books had been borrowed and locking the library during the hours in which it was not supervised.

H The applicant complains first that her probation report was not drawn up within the period laid down in Article 34 (2) of the Staff Regulations, which provides that: " N o t less than one month before the expiry of the probationary period, a report shall be made on the . . . probationer "

is It is clear from the foregoing that the applicant actually began her probationary period on 1 October 1981. According to Article 34 (2), the probation report ought therefore to have been drawn up before 1 March 1982. In fact, it was drawn up on 24 March.

ie That delay is not, however, of such a kind as to affect the applicant adversely. In fact, the aim of the above-mentioned provision is to ensure that the decision whether or not to establish a probationary official can be made

TRÉFOIS v COURT OF JUSTICE

before the expiry of the probationary period. In the applicant's case, that decision was made on 5 May 1982. That did not place the applicant at a disadvantage, since she remained in her post and was paid as a probationary official during that period. It therefore follows that the complaint must be rejected.

The applicant claims, secondly, that her probationary report, which formed the basis of the decision not to establish her, was later supplemented by fresh comments made by her superiors which in some respects "shifted" and enlarged upon the reasons previously put forward. That amounted to a misuse of procedure, which vitiated the decision taken.

2, In the views expressed by the applicant during the administrative procedure and in her application, she was at pains to refute various criticisms made by her superiors regarding her conduct and her work during the probationary period She contested in particular the accusation that she displayed a lack ot interest in her duties claiming that that was a subjective assessment and only the actual performance of the duties entrusted to her should be taken into account. She also regarded as unjustified the complaint concerning her absenteeism, stressing, on the one hand, that her absences on family or health grounds were duly authorized and, on the other, that it was inherent in the nature of her duties themselves, which involved various responsibilities, that she was frequently on the move within the Court building. Finally, she regards as unjustified the complaint of physical u n s u i t a b l y since when she was recruited, the administration was perfectly aware of the nature ot the duties to be carried out; the administration was influenced in its action by grounds based on discrimination against women performing certain types ot work.

22 In order to decide on those complaints, it is necessary to set out the principles of the Staff Regulations in relation to recruitment and the probationary period.

23 Article 27 of the Staff Regulations provides that " R e c r u i t m e n t shall be directed t o securing for the institution the services of officials o t the highest s t a n d a r d of ability, efficiency and integrity . . .". T h e r e are t w o consecutive p r o c e d u r e s for ascertaining w h e t h e r those conditions are met, namely recruitment competitions and the completion of the probationary period before establishment.

26 It is in the light of those criteria that the grounds taken into consideration by the appointing authority, in order to justify its decision of 5 May 1982 termi­ nating the applicant's probationary period without establishing her and its decision of 23 September 1982 dismissing her complaint, must be assessed.

27 Even though certain details in the statement of reasons, such as the determi­ nation of the true reasons for the applicant's absences, may be open to discussion, both the probation report and the supplementary observations by the heads of department paint a picture of a probationary official who, on the basis of a comprehensive assessment, does not satisfy the standards of ability and efficiency required by Article 27 of the Staff Regulations. The applicant's observations on a number of specific points are not of such a kind as to cast doubt on the correctness of all the assessments made by the heads of department in the exercise of their discretionary powers.

JUDGMENT OF 17. 11. 1983 — CASE 290/82

28 As for the observations on the applicant's unsuitability for the physical duties involved in the post of stockroom assistant, they do not appear, in spite of the unfortunate wording used by the author of the probation report, to be the result of a prejudice on the part of the administration in relation to the applicant's sex, but are the result of an individual assessment based on obser- vation of the applicant as she carried out her daily duties..It therefore does not appear that the administration infringed the principle of equality of opportunity for male and female workers in also taking into account, at the end of a probationary period regarded as disappointing in every respect, the fact that the physical condition of the person concerned seemed ill-suited to the requirements of the post for which she had applied.

O n those g r o u n d s ,

T H E C O U R T (Second C h a m b e r ) ,

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Bahlmann Pescatore Due