DI v EASO (Judgment) [2017] EUECJ T-730/15 (02 March 2017)

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(Appeal — Civil service — EASO staff — Member of the contract staff — Fixed-term contract — Probationary period — Dismissal decision — Action for annulment and for damages — Dismissal of the action as inadmissible at first instance — Rule of correspondence between the application and the complaint — Article 91(2) of the Staff Regulations)

APPEAL against the order of the European Union Civil Service Tribunal (Second Chamber) of 15 October 2015, DI v EASO (F‑113/13, EU:F:2015:120), seeking to have that order set aside,

DI, residing in Bucharest (Romania), represented by I. Vlaic and G. Iliescu, lawyers,

European Asylum Support Office (EASO), represented by W. Stevens, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,

1 By his appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, Mr DI, seeks to have set aside the order of the European Union Civil Service Tribunal (Second Chamber) of 15 October 2015, DI v EASO (F‑113/13) (‘the order under appeal’, EU:F:2015:120), by which the Tribunal dismissed his application seeking, first, the annulment of the decision of the Executive Director of the European Asylum Support Office (EASO) of 28 February 2013 to dismiss him at the end of his probationary period (‘the dismissal decision’) and, second, damages for the material and non-material damage allegedly suffered by him and by his family.

2 On 1 March 2012, the appellant and EASO signed a contract of employment. According to that contract, the appellant was recruited by EASO on the basis of Article 3a of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), as a member of the contract staff in function group III, grade 9, for a period of three years starting on 16 March 2012, as the EASO Security Officer.

3 Pursuant to Article 84 of the CEOS and Article 5 of the contract of employment, the appellant served a probationary period of nine months, from 16 March 2012, the date of his entry into service, until 15 December 2012.

4 The appellant’s probationary period was extended by three months, from 16 December 2012 until 15 March 2013.

5 On 28 February 2013, by the dismissal decision, the Executive Director of EASO, in his capacity as the authority empowered to conclude contracts of employment (‘the AECE’), decided, under Article 84(3) of the CEOS, to terminate the appellant’s contract of employment. In view of the obligation, set out in that provision, to give a notice period of one month, the AECE decided that the contract would end on 15 April 2013, that is, one month after the end of the extended probationary period.

6 As is apparent from paragraph 6 of the order under appeal, by e-mail of 2 May 2013 to the Executive Director of EASO, the appellant indicated that he was lodging a ‘formal complaint’. That e-mail is worded as follows:

Taking into consideration the [dismissal decision] sent to me on [28 February 2013], please consider this email a formal complaint against [that decision].

To my point of view, the evaluation has been done without taking into consideration the facts as they have been, without applying accordingly the Staff Regulations and EC Guides’ requirements, without taking into consideration my written comments on the report at the expiry of the probationary period drafted by Mr [X] [on] 15 February 2013.

I would kindly request to re-analyse the abovementioned documents and to change the first decision regarding my employment contract.

7 As is apparent from paragraph 7 of the order under appeal, a second email of the appellant, dated 2 July 2013, was worded as follows:

Please consider this email a formal complaint against [the dismissal decision taken] after 13 months of contract.

I kindly request the decision to be changed by the [AECE] and to allow me to be EASO’s employe[e] until [15 March 2015,] as the initial contract proposal mentioned.

8 The emails of 2 May 2013 and 2 July 2013 were dealt with by EASO as a single complaint, which was rejected by a decision of the AECE of 28 August 2013 (‘the decision rejecting the complaint’).

9 By document lodged at the Registry of the Civil Service Tribunal on 23 January 2014, the appellant brought an action, registered as Case F‑113/13, seeking annulment of the dismissal decision and damages for the material and non-material damage allegedly suffered.

10 The appellant claimed, at first instance, that the Civil Service Tribunal should:

– order EASO to pay the appellant EUR 90 000 for material damage allegedly suffered, equivalent to income of 23 months, together with all additional allowances (including annual travel allowance and installation allowance which the appellant had to pay back) and EUR 500 000 in compensation for the material and non-material damage allegedly suffered by the appellant and his family.

12 By the order under appeal, adopted under Article 81 of the Rules of Procedure of the Civil Service Tribunal, the latter dismissed the action at first instance as manifestly inadmissible and ordered the appellant to bear his own costs and pay those incurred by EASO.

13 In paragraphs 20 to 25 of the order under appeal, the Civil Service Tribunal stated that, in the present case, the condition laid down in the first indent of Article 91(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable to contract staff under Article 73 of the CEOS, according to which an action before the Civil Service Tribunal is admissible only if the AECE has previously had a complaint submitted to it, had been satisfied.

14 In paragraphs 30 to 32 of the order under appeal, the Civil Service Tribunal identified two pleas in the appellant’s pleadings.

15 According to the Civil Service Tribunal, the first of those pleas (‘the first plea raised at first instance’) alleged infringement of an internal EASO document entitled ‘EASO Guide to the Assessment of Probationary Staff’ (‘the Guide to the Assessment of Probationary Staff’), in so far as the appellant’s probationary period was not completed in accordance with that guide. The Civil Service Tribunal took the view that that plea could be broken down into seven grounds of complaint as follows:

– the appellant did not complete his probationary period under normal conditions in so far as he had three different tutors;

– the appellant was not continuously supervised for the duration of his probationary period;

– the first probationary report, of 22 November 2012, was not followed by a discussion, contrary to the provision in section C(10) of the Guide to the Assessment of Probationary Staff;

– the appellant received no advice or practical support during the period from 22 November 2012 to 15 February 2013, the date on which the end-of-probation report was delivered to him.

– the appellant was not provided with frequent feedback on how to carry out his duties, in breach of section D(1) of the Guide to the Assessment of Probationary Staff;

– the appellant did not obtain, in breach of section D(2) of the Guide to the Assessment of Probationary Staff and of his rights of defence, factual examples of complaints about his behaviour that had been addressed to his line management;

– EASO did not deliver to the appellant the end-of-probation report of 15 February 2013, in breach of his rights of defence.

16 In paragraphs 26 to 29 and 34 to 37 of the order under appeal, the Civil Service Tribunal held that the first plea raised at first instance was manifestly inadmissible for failure to comply with the rule of correspondence between the application and the complaint. The only head of claim put forward in the appellant’s complaint enabling EASO to know in sufficient detail the criticisms that the appellant sought to make of the dismissal decision alleged that he had been evaluated at the end of his probationary period without his written comments on his end-of-probation report having been taken into consideration. According to the Civil Service Tribunal, even when interpreted with an open mind, the content of the appellant’s complaint did not establish that the first plea raised at first instance, alleging infringement of the Guide to the Assessment of Probationary Staff, was closely linked to that head of claim.

17 The second plea identified by the Civil Service Tribunal in the appellant’s pleadings (‘the second plea raised at first instance’) concerned the incomplete communication of the decision rejecting the complaint.

18 In paragraph 33 of the order under appeal, the Civil Service Tribunal held that the second plea raised at first instance was ineffective. According to the Civil Service Tribunal, even if EASO sent to the appellant, both by email of 28 August 2013 and by registered post of 29 August 2013, only 4 of the 6 pages of the decision rejecting the complaint and in this way infringed his rights of defence, that was not capable of invalidating the dismissal decision.

19 As regards the claim for compensation, in paragraphs 39 to 41 of the order under appeal, the Civil Service Tribunal merely observed that, since the claim for annulment was inadmissible and the claim for compensation was directly linked with the claim for annulment, the claim for compensation was therefore also inadmissible.

20 By application lodged at the Court Registry on 18 December 2015, the appellant brought this appeal.

22 On a proposal from the Judge-Rapporteur, and in the absence of any request by the parties to have an opportunity to state their case in a hearing, the Court (Appeal Chamber), considering that it had sufficient information available to it from the material in the file, decided to rule on the appeal without an oral part of the procedure, in accordance with Article 207(2) of the Rules of Procedure of the General Court.

– annul the dismissal decision and, consequently, oblige EASO to annul all legal effects of the said decision and re-do the factual status;

– order EASO to pay him an amount of EUR 90 000 in respect of material damage suffered, including the corresponding allowances, and an amount of EUR 500 000 in respect of non-material damage suffered;

– order EASO to pay all costs related to his legal representation before the Courts of the European Union, both before the Civil Service Tribunal in Case F‑113/13 and in the present appeal.

25 In support of his claims, the appellant puts forward nine pleas. The first plea alleges breach, by the Civil Service Tribunal, of the rule of correspondence. In the second plea, the appellant claims that EASO infringed his right to a fair trial. The third plea alleges that the Civil Service Tribunal infringed the principle of equal treatment. In the fourth plea, the appellant claims that EASO’s decision to terminate his employment contract is based on incorrect considerations. By the fifth plea, the appellant claims that EASO infringed Article 26 of the Staff Regulations, applicable in accordance with the first paragraph of Article 11 of the CEOS. The sixth plea alleges misuse of powers. In the seventh plea, the appellant claims that the Civil Service Tribunal infringed its obligation to verify the conditions under which his probationary period was effected. The eighth plea alleges breach of Article 84 of the CEOS. The ninth plea alleges that EASO was not validly represented in the proceedings before the Civil Service Tribunal.

26 For its part, EASO puts forward arguments aimed at calling in question the admissibility of the appeal as well as the admissibility of certain pleas and arguments put forward by the appellant. It also contests the merits of the appellant’s pleas.

27 Before examining the pleas put forward by the appellant, it is necessary to examine the plea of inadmissibility raised in defence by EASO with regard to the appeal.

28 EASO suggests that the appellant might not have complied with the obligation to be represented by a lawyer. In that respect, it contends that certain paragraphs of the appeal, which describe the facts as they were presented from the appellant’s point of view, are worded in the first person singular.

29 In that regard, it must be recalled as a preliminary point that, pursuant to Article 51(1) and Article 213 of the Rules of Procedure, in an appeal before the General Court, a party must be represented by an agent or a lawyer in accordance with the provisions of Article 19 of the Statute of the Court of Justice of the European Union and that, according to the third paragraph of that provision of the Statute, parties other than the Member States and the institutions of the Union must be represented by a lawyer.

30 As regards whether, in these proceedings, the appellant complied with that requirement, it should be observed that, admittedly, certain paragraphs of the appeal, which describe the facts as they were presented from the appellant’s point of view, are written in the first person singular, using the personal pronoun ‘I’. It should also be noted that the appellant’s name was placed under the application initiating the appeal.

31 However, it must be stated that it is expressly clear from the appeal that it was submitted by I. Vlaic and G. Iliescu, lawyers, and that those lawyers represent the appellant in the context of this appeal. Indeed, in the introductory part of the appeal, where the information concerning the parties is set out, it is clearly stated that the appellant is represented by those lawyers. That is confirmed at the end of the appeal, where the appellant’s name is stated, followed by the clarification that he is represented by those lawyers. Moreover, it should be observed that the appeal was sent via the e-Curia account of one of those lawyers. In that regard, it must be recalled that, according to paragraphs 6 to 8 of the conditions of use of the e-Curia application applicable to parties’ representatives of 11 October 2010, the opening of such an account by a lawyer requires that the latter submit an application form accompanied by the necessary supporting documents and that that application has been validated by the Registry of the Court concerned.

32 Accordingly, contrary to what EASO suggests, it may not be inferred from the fact that, in the appeal, certain paragraphs describing the facts as they were presented from the appellant’s point of view are written in the first person singular that the requirement stemming from Article 51(1) and Article 213 of the Rules of Procedure and from the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union has not been complied with in the present case.

33 Therefore, the plea of inadmissibility alleging non-compliance with the requirement to be represented by a lawyer in proceedings before the General Court must be rejected.

2. The pleas put forward in support of the application to have set aside the order under appeal

34 As a preliminary point, it must be observed that, among the pleas put forward by the appellant, some of them are in support of the application to have set aside the order under appeal and others in support of the application for annulment of the dismissal decision. In the examination of the appeal, it is necessary to examine only the pleas put forward in support of the application to have set aside the order under appeal.

35 It is appropriate to examine, first of all, the ninth plea, and subsequently, the first and third pleas.

36 The appellant claims that, in the proceedings before the Civil Service Tribunal, EASO was not validly represented. In that respect, he submits that the person who is indicated on the first page of the order under appeal as the agent representing EASO in respect of the proceedings at first instance had left EASO before that order was delivered.

37 Whilst acknowledging that the person in question had left EASO at the beginning of May 2015, and thus before the order under appeal had been delivered, EASO contends that the plea should be rejected.

38 In that regard, in the first place, it must be pointed out that the Civil Service Tribunal was not informed of the fact that the person that EASO had appointed as agent representing it for the proceedings at first instance had left EASO at the beginning of May 2015. Accordingly, the Civil Service Tribunal cannot be criticised for not taking account of that circumstance.

39 In the second place and in any event, it must be stated, first, that, at the time that the person in question left EASO, the written procedure at first instance had already closed and, second, that, subsequently, the Civil Service Tribunal decided to give a decision on the action by reasoned order without taking further steps in the proceedings (see paragraph 12 above). Accordingly, it is not possible to take the view that EASO’s lack of representation might have had an impact on the operative part of the order under appeal. In any event, the appellant does not put forward any argument in that regard.

41 The first and third pleas, which it is appropriate to examine together, allege, in essence, the incorrect nature of the findings of the Civil Service Tribunal set out in paragraphs 24, 26 to 29 and 34 to 37 of the order under appeal, according to which the first plea raised at first instance must be rejected as inadmissible on the ground that it did not comply with the rule of correspondence.

42 In that respect, it should be recalled that, in paragraph 24 of the order under appeal, the Civil Service Tribunal found that the only real ground of complaint set out in the complaint was that set out in his email of 2 May 2013 and which alleged failure to take account of his written comments of 20 February 2013 on the end-of-probation report of 15 February 2013, drawn up by Mr X. By contrast, according to the Civil Service Tribunal, the other allegations that the appellant had made in that email, according to which his evaluation had been carried out without taking into consideration ‘the facts as they have been’ and without applying accordingly the Staff Regulations or the ‘EC Guides’ requirements’, were not valid grounds of complaint. On account of their lack of precision, those allegations did not enable EASO to understand which facts the appellant was referring to, which provisions of the Staff Regulations had been infringed, or which rules of which guides had not been complied with.

43 As is apparent from paragraph 35 of the order under appeal, the Civil Service Tribunal examined whether the rule of correspondence had been complied with by relying on the abovementioned classification of the appellant’s complaint. Thus, in paragraph 36 of that order, the Tribunal found that, even if the content of the appellant’s complaint was interpreted with an open mind, it did not establish that the first plea raised at first instance, alleging infringement of the Guide to the Assessment of Probationary Staff and which was broken down into the seven grounds of complaint mentioned in paragraph 15 above, was closely linked to the only real head of claim validly set out in the complaint, namely that the evaluation of the appellant had been carried out without taking into consideration his comments on the end-of-probation report drawn up by Mr X.

44 The appellant submits that those findings of the Civil Service Tribunal are incorrect. In essence, the line of argument that he sets out in the first and third pleas can be broken down into three grounds of complaint. In the first place, he puts forward arguments based on the primacy of the principle of legality and on the inapplicability of the rule of correspondence to pleas of illegality. In the second place, he submits that the approach taken by the Civil Service Tribunal was contradictory and that, contrary to its findings, the rule of correspondence was complied with. In the third place, the appellant claims that the Civil Service Tribunal infringed the principle of equal treatment.

The arguments based on the primacy of the principle of legality and on the inapplicability of the rule of correspondence to pleas of illegality

45 In the third plea, the appellant claims that the principle of legality prevails over the procedure before the Civil Service Tribunal and the principle of legal certainty. Accordingly, the Civil Service Tribunal should have reasoned and ruled upon the illegality issues, before adjudicating on the admissibility of other arguments. In the first plea, the appellant claims that the rule of correspondence is not applicable to pleas of illegality.

47 In the first place, as regards the argument based on the primacy of the principle of legality, it should be recalled that it is settled case-law that the rule of correspondence between the complaint, within the meaning of the first indent of Article 91(2) of the Staff Regulations, and the subsequent application requires that, for a plea before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 71).

48 That rule is justified by the very purpose of the pre-litigation procedure, which is to allow for an amicable settlement of disputes arising between officials and the administration (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 72 and the case-law cited).

49 Accordingly, contrary to the appellant’s submission, the court at first instance is entitled to reject as inadmissible a plea which fails to comply with the rule of correspondence, without being required to examine the merits of such a plea.

50 In the second place, the appellant’s argument that it is apparent from the judgment of 12 March 2014, CR v Parliament (F‑128/12, EU:F:2014:38), that the rule of correspondence does not apply to pleas of illegality must be rejected.

51 In that regard, it is true that it should be borne in mind that, so long as the invalidity of acts of general application, in respect of which a plea of illegality may be raised, has not been declared by a competent court, all persons subject to EU law are obliged to acknowledge that those acts are fully effective (see, to that effect, judgments of 13 February 1979, Granaria, 101/78, EU:C:1979:38, paragraph 5, and of 28 January 2016, Éditions Odile Jacob v Commission, C‑514/14 P, not published, EU:C:2016:55, paragraph 40). Only the court is entitled, under the terms of Article 277 TFEU, to rule that an act of general application is unlawful and to draw the consequences of the inapplicability which results from this with regard to the act of individual scope contested before it. The institution or agency to which the complaint is made is not afforded such jurisdiction by the Treaties. Accordingly, in the pre-litigation procedure, the administration may not resolve by means of an amicable settlement a dispute arising from a plea of illegality.

52 However, it must be stated that none of the arguments that the appellant put forward in the first plea raised at first instance was based on a plea of illegality. The appellant merely pleaded errors committed at the stage of the adoption of the dismissal decision and of the decision rejecting the complaint, but did not seek to call in question the legality of the acts of general application on which those decisions were based.

53 Accordingly, the arguments based on the primacy of the principle of legality and on the inapplicability of the rule of correspondence to pleas of illegality must be rejected.

The arguments alleging a contradictory approach by the Civil Service Tribunal and an incorrect application of the rule of correspondence

54 In the first and third pleas, the appellant claims that, contrary to what is apparent from the findings of the Civil Service Tribunal, the first plea raised at first instance complies with the rule of correspondence. The approach of the Civil Service Tribunal is contradictory. On the one hand, the Tribunal found that the emails of 2 May and 2 July 2013 constituted a complaint. On the other hand, the Tribunal rejected the first plea raised at first instance as inadmissible, on the ground that the rule of correspondence had not been complied with, even though that plea contains the same heads of claim as the complaint.

55 In that respect, the appellant submits, first of all, that the Civil Service Tribunal overlooked the fact that the heads of claim that he had set out in his written comments on the end-of-probation report drawn up Mr X., those that he had set out in the complaint and those that he had set out in the action at first instance were identical. In the written comments on the end-of-probation report, the appellant set out in detail the breaches of the rules of the Guide to the Assessment of Probationary Staff. In the complaint, the appellant mentioned expressly that those comments had not been taken into consideration by the AECE. His action at first instance was also based on those comments.

56 Next, the finding of the Civil Service Tribunal that no breach of the Guide to the Assessment of Probationary Staff was pleaded in the complaint is incorrect. In the complaint, the appellant mentioned the ‘EC Guides’. By that expression, the appellant was referring to the Staff Regulations and the CEOS, but also the Guide to the Assessment of Probationary Staff, the latter being based on the provisions of the Staff Regulations and of the CEOS. The appellant used broad terms in order to avoid omitting by mistake any relevant guide from among the aforementioned.

57 Moreover, the Civil Service Tribunal should have taken account of his lack of legal experience, training and expertise. Accordingly, the Tribunal ought to have displayed an open-mind approach, taking account of the content of his emails rather than the manner in which the arguments were presented in those emails.

58 Furthermore, EASO was aware of all the relevant matters. EASO lodged documents which appear in the case file and was aware of the appellant’s comments on the dismissal decision and on the grounds of that decision. That is also confirmed by the fact that, on 15 March 2015, during the procedure at first instance, the Judge Rapporteur sent a letter to the parties exploring the possibility of an amicable settlement.

60 First of all, EASO states that it was not contradictory to conclude (i) that the appellant had lodged a complaint and (ii) that the first plea raised at first instance did not comply with the rule of correspondence. In the complaint, the appellant merely stated that he had been evaluated without his written comments on the end-of-probation report having been taken into consideration. That statement did not tally with the first plea raised at first instance and which was identified by the Civil Service Tribunal, alleging a breach of the Guide to the Assessment of Probationary Staff.

61 Next, in EASO’s view, the mere fact that the appellant attempted to remain as vague in his wording as possible in his complaint, in order to avoid missing any possible legal provisions, and that he had made comments prior to lodging his complaint but did not include them therein, defies the very purpose of the pre-litigation procedure, which is to allow for an amicable settlement of disputes arising between officials or agents and the administration. Accordingly, the administration should be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision. The appellant effectively deprived EASO of such an opportunity.

62 Moreover, according to EASO, the fact that EASO was aware of the appellant’s comments and views on the contested decision before the complaint was lodged or even after is irrelevant. In order for the pre-litigation procedure to achieve its objective, the administration must be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision.

63 Furthermore, EASO submits that the appellant’s argument relating to the letter of 15 March 2015, which the Judge Rapporteur sent to the parties in the procedure at first instance in order to explore the possibility of an amicable settlement, is inadmissible. According to Article 92 of the Rules of Procedure of the Civil Service Tribunal, no opinion expressed, suggestion made, proposal put forward, concession made or document drawn up for the purposes of the amicable settlement may be relied on as evidence by the Tribunal or the parties in the proceedings before the Tribunal.

64 In that regard, it should be recalled at the outset that, as was stated in paragraph 47 above, the rule of correspondence requires that, for a plea before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure, enabling the appointing authority to know the criticisms made by the person concerned of the contested decision.

65 It follows that, as is apparent from settled case-law, in actions brought by officials and servants, claims before the European Union Courts at first instance may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the European Union Courts by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 73 and the case-law cited).

66 It should also be noted that, since the pre-litigation procedure is informal in character and those concerned act, in general, without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but must, on the contrary, examine them with an open mind. It is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject-matter of the complaint (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 76).

67 However, in order for the pre-litigation procedure provided for under Article 91(2) of the Staff Regulations to achieve its objective, it is necessary that the authority in question be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 77).

68 It is in the light of that case-law that the appellant’s arguments must be considered.

69 First of all, it is necessary to examine whether those arguments are capable of demonstrating an error by the Civil Service Tribunal regarding the classification of the appellant’s complaint. It is then necessary to examine whether those arguments are capable of demonstrating that the Civil Service Tribunal’s finding that the first plea raised at first instance was not closely linked to the heads of claim set out in the complaint might have been incorrect.

70 As regards the Civil Service Tribunal’s classification of the appellant’s complaint, it must be observed that it is apparent from the order under appeal that the Civil Service Tribunal did not take the view that, by referring, in his email of 2 May 2013, to his written comments on the end-of-probation report drawn up by Mr X., the appellant had validly put forward arguments aimed at calling in question the merits of the dismissal decision. As is apparent from paragraphs 24 and 34 to 37 of the order under appeal, the Tribunal merely found that the first plea raised at first instance, alleging breach of the Guide to the Assessment of Probationary Staff, could not be linked to the head of claim put forward in the appellant’s email of 2 May 2013, alleging failure to take into consideration his comments on the end-of-probation report drawn up by Mr X. However, the Civil Service Tribunal failed to examine whether there was a correspondence between the heads of claim put forward in that plea and the heads of claim set out in those comments, to which the appellant had referred in that email.

71 As is apparent from paragraphs 54 to 57 above, the appellant claims that, contrary to the Civil Service Tribunal’s findings, he put forward, in his complaint, heads of claim tallying with those set out in his action at first instance, and thus heads of claim alleging breach of the Guide to the Assessment of Probationary Staff. In essence, he therefore submits that the Civil Service Tribunal did not correctly classify the content of his emails of 2 May and 2 July 2013.

72 In that regard, it should be noted as a preliminary point that, by those arguments, the appellant does not seek to call in question the Civil Service Tribunal’s factual findings regarding the content of the emails of 2 May and 2 July 2013, but merely claims that, on the basis of the facts established by the Tribunal, it should not have reached the conclusion that, in the complaint, the appellant had not put forward arguments aimed at calling in question the merits of the dismissal decision. The appellant’s arguments thus relate to a question of law, namely the legal classification of the facts established by the Tribunal.

73 Next, it should be recalled that, according to the facts established by the Civil Service Tribunal, in his email of 2 May 2013, the appellant had claimed that, in his opinion, the evaluation on which the dismissal decision had been based had been carried out without taking into consideration ‘the facts as they have been’, without applying accordingly the Staff Regulations or the ‘EC Guides’ requirements’ and without taking into consideration his written comments on the end-of-probation report drawn up by Mr X. It is also apparent from the facts established by the Civil Service Tribunal that, in that email, subsequently, the appellant requested the Executive Director of EASO to re-analyse the ‘above mentioned documents’ and to change the dismissal decision. Moreover, the Civil Service Tribunal noted that, in his email of 2 July 2013, the appellant had asked that the dismissal decision be altered by the AECE and that he be allowed to continue to be an EASO employee until 15 March 2015, as the initial contract proposal mentioned (see paragraphs 6 and 7 above).

74 In the light of those factual findings by the Civil Service Tribunal, it must be held that the classification of the appellant’s complaint that it carried out is not consistent with the principles set out in paragraph 66 above, according to which, in the light of the informal nature of the pre-litigation procedure and of the fact that, at that stage, those concerned act, in general, without the assistance of a lawyer, complaints must not be interpreted restrictively, but with an open mind.

75 First, as is apparent from the facts established by the Civil Service Tribunal, recalled in paragraph 73 above, in his email of 2 May 2013, not only did the appellant refer expressly to his written comments on the end-of-probation report drawn up by Mr X., but also requested the Executive Director of EASO to analyse the ‘above mentioned documents’ which included, inter alia, those written comments, with a view to altering the dismissal decision. Moreover, as is apparent from his email of 2 July 2013, the appellant had asked that the dismissal decision be altered by the AECE and that he be allowed to continue to be an EASO employee beyond 15 March 2013. Interpreted with an open mind, those emails should not have been considered to be a complaint aimed solely at ensuring that his comments on the end-of-probation report drawn up by Mr X be replied to in the decision rejecting his complaint. On the contrary, they must be classified as a complaint by which the appellant claimed that the considerations on which the dismissal decision was based were incorrect, by relying again on arguments that he had already put forward in his written comments on the end-of-probation report drawn up by Mr X.

76 Second, if the Civil Service Tribunal had decided not to take into consideration the content of the appellant’s written comments on the end-of-probation report drawn up by Mr X., to which the appellant had referred in his email of 2 May 2013, because, in the complaint, the appellant had merely referred to those comments and the heads of claim set out in those comments were not therefore directly apparent from the emails of 2 May and 2 July 2013, it would also be necessary to find that the Civil Service Tribunal’s approach was incorrect.

77 In that respect, first, it must be observed that, in respect of the heads of claim made in a complaint within the meaning of Article 90(2) of the Staff Regulations, there is no rule comparable to that applicable to proceedings before the General Court, according to which, under Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and Article 76(d) of the Rules of Procedure, the basic matters of law and fact relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself, and according to which a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments which, in accordance with the abovementioned provisions, must appear in the application (see, to that effect, judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 40). The pre-litigation procedure is informal in character (see paragraph 66 above) Accordingly, where an interested party has already put forward his observations on a specific point during the administrative procedure, the administration cannot argue that his complaint lacks precision in that regard (see, to that effect, judgment of 15 July 2015, Rouffaud v EEAS, T‑457/14 P, EU:T:2015:495, paragraph 35).

78 Second, it is necessary to reject EASO’s argument that, on the basis of the emails of 2 May and 2 July 2013, it had not been in a position to know the content of the heads of complaint set out by the appellant sufficiently precisely. In that regard, it is sufficient to recall the content of the dismissal decision. In that decision, the Executive Director of EASO found that the end-of-probation report drawn up by Mr X. had been sent to the appellant on 15 February 2013, that the appellant had had the opportunity to submit his comments on that report, that his comments in that regard had been taken into consideration and that the AECE’s final report had concluded that the probationary period should be deemed to have been unsuccessful. The AECE’s final report, annexed to that decision, contains similar wording and refers also to those comments. In that respect, it should be noted that those comments were also annexed to the dismissal decision. Moreover, in the decision rejecting the complaint, the Executive Director of EASO considered that, in his email of 2 May 2013, the appellant had expressed his dissatisfaction, considering that ‘the procedures had not been followed’ and that his written comments on the end-of-probation report had not been taken into consideration. In the light of those matters, EASO’s argument that it was not in a position to know the heads of claim set out by the appellant is unfounded.

79 It follows that, by failing to take into consideration the appellant’s written comments on the end-of-probation report drawn up by Mr X. in examining whether the rule of correspondence between the application and the complaint had been complied with, the Civil Service Tribunal acted in a manner which is not consistent with the case-law cited in paragraph 66 above.

80 In the light of the foregoing considerations, it is also necessary to find that the Civil Service Tribunal’s conclusion that the other allegations that the appellant had made in his email of 2 May 2013 did not enable EASO to understand which facts, which provisions of the Staff Regulations or which requirements of which guides the appellant was referring to is incorrect. Indeed, it is sufficiently clear from that email that the appellant’s allegations, according to which his evaluation had been carried out without taking into consideration ‘the facts as they have been’ and without applying accordingly the Staff Regulations and the requirements of the ‘EC’s Guides’, referred also to his written comments on the end-of-probation report drawn up by Mr X. In that regard, nor should the Civil Service Tribunal therefore have confined itself to taking into account solely the content of the email of 2 May 2013, but should also have taken into account the content of those comments.

81 Accordingly, it must be held that the Civil Service Tribunal’s legal classification of the content of the emails of 2 May and 2 July 2013 is vitiated by an error of law.

– The Civil Service Tribunal’s finding that the first plea raised at first instance was not closely linked to the heads of claim validly set out in the complaint

82 As is apparent from the findings made in paragraphs 70 to 81 above, the Civil Service Tribunal’s conclusion that the first plea raised at first instance was not closely linked to the head of claim validly set out in the complaint has already been held to be incorrect because that conclusion was based on a classification of the appellant’s complaint which is not consistent with the case-law.

83 In any event, even if the Civil Service Tribunal had been right to consider that the head of claim alleging that the appellant’s written comments on the end-of-probation report drawn up by Mr X had not been taken into consideration was aimed solely at obtaining a more detailed response to those comments from EASO, the Civil Service Tribunal’s conclusion that there was a lack of correspondence between the application and the complaint should also be considered incorrect.

84 It is true that, according to the rule of correspondence, the relief sought in the application to the Courts of the European Union at first instance may contain only heads of claim based on the same cause of action as that on which those raised in the complaint are based. However, that rule does not preclude heads of claim put forward in the complaint being developed before those courts (see paragraph 65 above).

85 While it is necessary that the subject-matter and cause of action of the dispute remain unchanged between the complaint and the action in order to allow an amicable settlement of the dispute, by informing the appointing authority of the criticisms of the person concerned at the complaint stage, the interpretation of those concepts must not have the effect of restricting the scope for the person concerned effectively to challenge a decision adversely affecting him (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 83).

86 That is why the concept of the subject-matter of the dispute, which corresponds to the claims of the person concerned, and the concept of cause of action, which corresponds to the legal and factual basis of those claims, must not be interpreted restrictively (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 84).

87 In that regard, it must also be made clear that merely changing the legal basis of a dispute is not sufficient for it to be regarded as having a new cause of action. There may be a number of legal bases supporting a single claim and, consequently, a single cause of action. In other words, relying in the application on the infringement of a specific provision which was not relied on in the complaint does not necessarily mean that the cause of action of the dispute has thereby been altered. Consideration must be given to the substance of the cause of action and not merely to the wording of its legal bases, and the Union judicature must ascertain whether there is a close connection between its bases and whether they essentially relate to the same claims (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 85).

88 In that respect, it should also be borne in mind that the statement of reasons for a decision rejecting a complaint is deemed to supplement the statement of reasons for the decision against which the complaint was directed (judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 41). Accordingly, if the complainant is apprised of the reasoning for the act adversely affecting him through the response to his complaint, or if the reasoning for that response substantially alters or supplements the reasoning contained in that act, any plea in law put forward for the first time in the application and seeking to challenge the validity of the reasoning set out in the response to the complaint must be deemed admissible (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 86).

89 In the statement of reasons for the dismissal decision, the Executive Director of EASO did, admittedly, refer to the appellant’s comments on the end-of-probation report drawn up by Mr X. and stated that those comments had been taken into consideration. However, that decision does not contain any explicit response to those comments.

90 On the other hand, the statement of reasons in the decision rejecting the complaint is more detailed. A section of that statement of reasons describes in detail the facts as they happened from EASO’s point of view. In that respect, it should be observed that, in that section, it is stated inter alia that, in the complaint, the appellant had expressed his dissatisfaction resulting from the fact that ‘the procedures had not been followed’ and that his written comments on the end-of-probation report had not been taken into consideration. For its part, the section of the statement of reasons indicating the considerations which, according to ESPO, justified the rejection of the appellant’s complaint can be broken down into five sub-sections, relating to, first, the objectives of probationary periods, second, the conditions in which the appellant had served his probationary period, third, the appellant’s tasks and role, fourth, the appellant’s abilities, efficiency and conduct and, fifth, the procedure for adopting an end-of-probation report. In the sub-sections relating to the conditions in which the appellant had served his probationary period and on the procedure for adopting an end-of-probation report, the Executive Director of EASO referred expressly to heads of claim set out by the appellant.

91 It follows that the decision rejecting the complaint substantially supplemented the statement of reasons for the dismissal decision for the purposes of the case-law cited in paragraph 88 above, in so far as the Executive Director of EASO expressed a view on the appellant’s comments.

92 Accordingly, in any event, it must be held that, in the circumstances of the present case, the Civil Service Tribunal was not entitled to find that there was no link between the first plea raised at first instance, alleging breach of the rules of the Guide to the Assessment of Probationary Staff, on the one hand, and the appellant’s complaint, on the other, without taking into account the content of the appellant’s written comments on the end-of-probation report drawn up by Mr X.

93 In the light of those considerations, the appellant’s arguments that the Civil Service Tribunal incorrectly applied the rule of correspondence must be upheld.

94 The upholding of those arguments is alone sufficient to justify the setting aside of the order under appeal in its entirety.

95 First, in the light of the incorrect nature of the Civil Service Tribunal’s finding set out in paragraph 37 of the order under appeal, according to which the first plea raised at first instance was manifestly inadmissible, and of the fact that the rejection of the application for annulment of the dismissal decision could not be based solely on the rejection of the second plea raised at first instance as ineffective, the conclusion set out in paragraph 38 of the order under appeal, that that application for annulment should be rejected as manifestly inadmissible, cannot be upheld.

96 Second, that error has an effect on the Civil Service Tribunal’s finding set out in paragraph 41 of the order under appeal, according to which the claim for compensation at first instance should be rejected as inadmissible. As is apparent from paragraphs 39 and 40 of that order, that finding was based solely on the argument that, because of the close link between the claim for compensation and the application for annulment, the claim for compensation had to be rejected as inadmissible, as did the application for annulment.

97 In the light of the foregoing, the order under appeal must be set aside in its entirety, without it being necessary to rule on the appellant’s other arguments put forward in the first and third pleas, or on the other pleas that the appellant puts forward in support of the application to have set aside the order under appeal.

98 Under Article 4 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), where the General Court sets aside a decision of the Civil Service Tribunal but considers that the state of the proceedings does not permit a decision, it is to refer the case to a chamber other than that which ruled on the appeal.

99 In the present case, the action at first instance does not permit judgment to be given.

100 As was stated in paragraphs 54 to 93 above, in the context of the examination of whether, in the present case, the rule of correspondence between the application and the complaint has been complied with, it is necessary to examine to what extent the heads of claim set out in the first plea raised at first instance tally with those set out in the appellant’s written comments on the end-of-probation report drawn up by Mr X., to which the appellant referred in the complaint. However, the Civil Service Tribunal did not take account of the content of those comments.

101 Accordingly, it is necessary to refer the case to a chamber other than that which ruled on the present appeal so that the General Court may rule at first instance on the action brought before the Civil Service Tribunal by the appellant.

102 Accordingly, for the purposes of these proceedings, it is not necessary to rule on the application for annulment of the dismissal decision, on the claim for compensation and on the pleas put forward in support of those heads of claim, which are set out in the appeal.

103 Since the case has been referred back to another chamber of the General Court, the costs relating to the present appeal proceedings must be reserved.

1. Sets aside the order of the Civil Service Tribunal of the European Union (Second Chamber) of 15 October 2015, DI v EASO (F‑113/13);

2. Refers the case to a chamber of the General Court other than that which ruled on the present appeal;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> DI v EASO (Judgment) [2017] EUECJ T-730/15 (02 March 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T73015.html Cite as: ECLI:EU:T:2017:138, [2017] EUECJ T-730/15, EU:T:2017:138

Court of Justice of the European Communities (including Court of First Instance Decisions)