ID v EEAS (Civil service - Inappropriate conduct - Judgment) [2021] EUECJ T-28/20 (07 July 2021)

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(Civil service – Members of the contract staff – Decision to dismiss before the end of the probationary period – Obvious inadequacy – Inappropriate conduct – Article 84 of the CEOS)

European External Action Service (EEAS), represented by S. Marquardt and R. Spáč, acting as Agents,

APPLICATION under Article 270 TFEU seeking, first, annulment of the decision of the EEAS of 6 March 2019 terminating the applicant’s contract before the end of the probationary period and, secondly, compensation for the material and non-material damage allegedly suffered by the applicant as a result of that decision,

composed of S. Gervasoni, President, L. Madise and J. Martín y Pérez de Nanclares (Rapporteur), Judges,

1 By a contract of employment signed on 16 July 2018, the applicant, ID, was recruited, with effect from 16 August 2018, as a member of the contract staff under Article 3a of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) to the European External Action Service (EEAS). That three-year contract stated that the applicant would perform the duties corresponding to function group IV, grade 14, step 1, in a third country and specified that the probationary period was fixed at nine months.

2 As from 16 August 2018, the applicant, assigned to the Political, Press and Information Section (‘the Political Section’), performed the duties of Press and Information Officer of the EU Delegation to the third country concerned (‘the Delegation’), being placed under the supervision of the head of that section (‘the Head of Section’).

3 From 16 August to the end of September 2018, the applicant worked at the premises of the EEAS in Brussels (Belgium). Then, from 1 October 2018, she performed her duties at the premises of the Delegation.

4 On 13 October 2018, the applicant sent an email to the Press and Communication Assistant of the Political Section on the subject of the latter’s work and behaviour (‘the email of 13 October 2018’). In that email, she criticised that assistant, who had the status of local staff, and also the other local staff in the Political Section, as regards their work and level of remuneration. On the same day, she drew up a ‘health and safety’ incident report concerning the allegedly aggressive behaviour of that assistant.

5 On 17 October 2018, the Head of Delegation (‘the Head of Delegation’) held a dialogue with the applicant about the email of 13 October 2018 (‘the dialogue of 17 October 2018’).

6 In a note of 19 October 2018, addressed to the applicant and entitled ‘Our dialogue on 17^th October 2018’, the Head of Delegation gave an account of that dialogue. He considered that the email of 13 October 2018 questioned the relevance of the salary grade of local staff in the Political Section and included an extremely negative judgement on the professional ability of those staff members. He stated that the style and content of that email were unacceptable and that the applicant had no competence to intervene regarding the salary level of those staff members. He emphasised that that email had gravely offended the members of staff concerned and had undermined the quality of interpersonal relations. He considered that sending the email in question constituted gross professional misconduct and that repetition of such inappropriate conduct would lead him to recommend the termination of the applicant’s contract.

7 By a note of 8 November 2018 addressed to the Director for Human Resources of the Directorate-General (DG) for Budget and Administration of the EEAS (‘the Director for Human Resources’), the Head of Delegation stated that, from the day of her arrival in the third country, the applicant’s behaviour had been a matter of serious and constant preoccupation. He explained that he had held a dialogue with her following an initial incident and that he wished to have a further dialogue with her following a second incident. He added that he felt compelled to propose the termination of the applicant’s contract and that, pending a decision by headquarters, he was of the opinion that the applicant should be immediately repatriated to Brussels.

9 On 29 November 2018, the Head of Delegation met with the applicant in Brussels, in the presence of the President of the Staff Committee and the head of the EEAS department competent for the third country concerned.

10 On 3 December 2018, the applicant was forced to leave the third country and reassigned to the headquarters of the EEAS in Brussels under the system of partial evacuation to which the Delegation had been subject, for safety reasons, since June 2017. From that date, she worked remotely for the Delegation from the premises of the EEAS department competent for the third country.

11 In a note of 4 December 2018 addressed to the applicant and entitled ‘Our dialogue of 29 November 2018’, the Head of Delegation gave an account of that dialogue. He considered that, despite the dialogue of 17 October 2018, the situation had deteriorated, as shown by a series of incidents. He stated that the most serious incident was the applicant’s argument with her colleagues concerning a publication on the Delegation’s website. On that occasion, the applicant ignored his request and that of the Head of Section to withdraw that publication. He described those facts as a breach of the applicant’s duty to comply with her superiors’ written instructions. He referred to another incident in which the applicant had publicly accused her Head of Section of favouritism in an invitation to tender. He pointed out that the applicant no longer interacted with many of her colleagues and had lost the confidence of her superiors. He stated that those internal problems could have security implications, given the extreme cultural sensitivity in the third country concerned and the risk exposure of the Delegation. He concluded by stating that the applicant was an experienced and competent colleague, but that she was ignorant of the grave consequences of her attitude in interpersonal and hierarchical relations.

12 On 14 January 2019, the Head of Delegation, in his capacity as reporting officer, held a dialogue with the applicant for the purposes of drawing up her probationary report.

13 On 17 January 2019, the applicant submitted a request for assistance under Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). In that request, she stated that she had been subjected to psychological harassment by superiors and colleagues.

14 On 21 January 2019, the Head of Delegation, in his capacity as reporting officer, drew up the applicant’s probationary report (‘the probationary report’). In that report, he assessed the applicant’s efficiency, abilities and conduct.

15 As regards the applicant’s efficiency, the Head of Delegation stated that she had proved to be experienced, energetic and committed. However, almost from the first day of her presence in the Delegation, the applicant had difficult professional relations with a number of her colleagues, both local and expatriate staff, whose ability to perform their responsibilities and, in the case of the local staff, the legitimacy of their salary, she questioned. That confrontational attitude quickly spread to her superiors. An incident took place between her and a partner from the third country and in another incident she confronted the security team on the occasion of a journey outside the Delegation’s compound (‘the journey of 22 November 2018’). Given the seriousness of that situation, which could have security implications, a dialogue was held with the applicant on two occasions (probationary report, section 6.1).

16 As regards the applicant’s competencies, the Head of Delegation considered that she had good experience in the media and communication field. However, in the context of the third country concerned, her ability to deliver concrete results was seriously hampered by her inability to entertain respectful and constructive working relations with most of her colleagues. Her technical abilities were not disputed, but a series of incidents demonstrated that her attitude and inability to observe the minimal courtesy required in a diplomatic mission towards internal and external interlocutors was a major obstacle to the proper performance of her tasks (probationary report, section 6.2).

17 As regards the applicant’s conduct, the Head of Delegation considered that this was the most acute problem. According to the report, hardly a day passed without an incident, minor or serious, triggered by the applicant’s aggressiveness towards her working environment. In a high-risk context, that conduct carried obvious and direct security consequences for the applicant and potentially for the Delegation. Attempts to address those problems were abruptly disregarded by the applicant. As a result of this, the applicant no longer entertained smooth working relations, or even any relations at all, with most of her colleagues and she had lost the confidence of her superiors (probationary report, section 6.3).

18 The Head of Delegation concluded that, despite her technical skills, the applicant was not suitable for service in the Delegation and recommended that her contract be terminated before the end of the probationary period (probationary report, section 6.6).

19 On 23 January 2019, the Director for Human Resources, acting as countersigning officer, confirmed the probationary report.

20 On 4 February 2019, the applicant submitted her comments on the probationary report.

21 On 21 February 2019, the Joint Reports Committee, after hearing the applicant, supported the recommendation to terminate her contract.

22 By a note of 6 March 2019 (‘the contested decision’), mentioning as its subject matter ‘dismissal before the end of the probation period’, the Director for Human Resources, in her capacity as the authority authorised to conclude contracts of employment (‘the AACC’), after hearing the applicant, informed the applicant of her decision to terminate her contract pursuant to Article 84(2) of the CEOS.

‘During the probation period you showed commitment to work but your inappropriate conduct caused serious incidents, hampered your ability to properly perform your tasks and had a negative impact on the functioning of the Delegation. Furthermore, the probationary report points out that you refused to comply with instructions from your hierarchy and, therefore, you lost the confidence of your superiors. I also note that despite dialogues with your Head of Delegation that took place on 17 October and 29 November [2018] and warnings from your hierarchy, you did not change your behaviour, and, therefore, your performance, efficiency and ability to exercise your functions were unsatisfactory.’

25 On 8 May 2019, the Director for Human Resources rejected the applicant’s request for assistance (see paragraph 13 above).

26 On 5 June 2019, the applicant lodged a complaint against the contested decision pursuant to Article 90(2) of the Staff Regulations.

27 On 8 August 2019, the applicant lodged a complaint against the decision of 8 May 2019 rejecting her request for assistance.

28 By decision of 7 October 2019 (‘the decision rejecting the complaint’), the Director-General of the DG for Budget and Administration of the EEAS (‘the Director-General’), acting as the AACC, rejected the complaint lodged on 5 June 2019, including with regard to the applicant’s claim for compensation for material and non-material damage.

29 The Director-General emphasised that the applicant’s conduct was at odds with the competences expected of a member of staff responsible for ‘Press and Information’ duties. He explained that those duties included, inter alia, contacts with the media and other external communication activities, including updating the Delegation’s website. He pointed out that the applicant’s position entailed high visibility towards the public. He stated that, in order to perform such duties, it was necessary for the staff member concerned to possess adequate conduct abilities in the fields of public relations, diplomacy and communication, taking into account security concerns in the third country (decision rejecting the complaint, pp. 7 and 8).

30 The Director-General considered that the applicant’s inappropriate conduct, leading to obvious inadequacy, had manifested itself in a number of serious incidents, relating in particular to the situation of local staff in the Political Section, to the publication of an interview on the Delegation’s website and to participation in a meeting with the manager of a local television channel, and had led to strained professional relations with her colleagues and external interlocutors of the Delegation (decision rejecting the complaint, pp. 8 to 11).

31 The Director-General stated that the applicant’s inappropriate conduct constituted a refusal to comply with the instructions of her superiors, in particular as regards the refusal to remove a publication from the Delegation’s website (decision rejecting the complaint, pp. 11 and 12). He stated that that conduct, as manifested inter alia towards the Delegation’s external interlocutors, was liable to have an impact on the Delegation’s image (decision rejecting the complaint, pp. 12 and 13). He added that the considerations in the probationary report relating to the security concerns raised by the applicant’s attitude were not vitiated by any manifest error of assessment (decision rejecting the complaint, p. 15).

32 On 5 December 2019, the Director-General rejected the applicant’s complaint against the decision of 8 May 2019 rejecting her request for assistance. The applicant did not bring an action before the Court against the latter decision.

33 By application lodged at the Registry of the General Court on 16 January 2020, the applicant brought the present action.

34 By document lodged at the Registry of the General Court on 6 February 2020, the applicant requested that she be granted anonymity under Article 66 of the Rules of Procedure of the General Court. That application was allowed by decision of the Court of 10 March 2020.

35 No request for a hearing having been made by the parties within three weeks after service of notification of the close of the written part of the procedure, the Court, considering that it had sufficient information available to it from the material in the file, decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.

– annul the contested decision and, so far as necessary, the decision rejecting the complaint;

– order the EEAS to pay her an amount of EUR 449 397.05, in compensation for the material damage suffered, and an amount of EUR 20 000, in compensation for the non-material damage suffered, together with interest at the legal rate until payment in full has been made;

38 In support of her application for annulment, the applicant relies on three pleas in law, alleging, first, infringement of Article 84 of the CEOS, secondly, failure to state adequate reasons and manifest error of assessment and, thirdly, misuse of powers.

39 It should be borne in mind that, according to case-law, an administrative complaint, referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the Court. Under those circumstances, an action, even if formally directed against the rejection of the complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8), except where the rejection of the complaint has a different scope from that of the act against which the complaint was lodged (judgment of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraph 26).

40 In the present case, the decision rejecting the complaint essentially confirms the contested decision and responds to the applicant’s criticisms, specifying the reasons for the latter decision on certain points. In those circumstances, the claim for annulment must be regarded as directed solely against the contested decision, the legality of which must, however, be examined, taking into consideration the reasoning contained in the decision rejecting the complaint, since that reasoning is deemed to coincide with that of the contested decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 55 and 59 and the case-law cited).

2. The complaints submitted under the first two pleas in law, alleging failure to state adequate reasons, and the request that the Court disregard certain material produced by the EEAS

41 By the first and second pleas in law, the applicant challenges, in certain respects, the adequacy of the statement of reasons of the contested decision and asks the Court to reject certain material produced by the EEAS at the stage of the defence. First, she states that, as regards the incident during which she questioned the level of performance and salary of local staff in the Political Section, the AACC does not provide any explanation as to how that incident hampered her work or her integration into the Delegation. Secondly, she considers that she never received any explanation for the statement in the probationary report that she questioned in a confrontational manner, both in writing and orally, the ability of expatriates to perform their duties. Thirdly, the applicant claims, in the reply, that the administration cannot supplement the statement of reasons for the contested act after the decision rejecting the complaint. She states that she objects, for that reason, to the submission of certain evidence at the stage of the defence and requests that it be disregarded by the Court.

42 It is appropriate to respond at the outset to that line of argument, which is disputed by the EEAS.

43 The obligation to state reasons established by Article 296 TFEU is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue (see judgment of 1 March 2017, Silvan v Commission, T‑698/15 P, not published, EU:T:2017:131, paragraph 17 and the case-law cited). The statement of reasons must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 29 and the case-law cited).

44 In the present case, the contested decision, the terms of which have been set out in part in paragraph 23 above, clearly mentions the legal basis on which it is based, namely Article 84(2) of the CEOS. It states the reason for the dismissal, namely the applicant’s inappropriate conduct and the consequences thereof. It states, inter alia, that that conduct led to serious incidents, that the applicant refused to comply with the instructions of her superiors and that she did not change her behaviour despite the warnings received.

45 Furthermore, the contested decision was adopted in a context known to the applicant. The documents available to her at the date of that decision, in particular the probationary report, and also the notes of the Head of Delegation of 19 October and 4 December 2018, contain numerous details of the facts on which the administration relied in adopting that decision.

46 Furthermore, in the decision rejecting the complaint, the reasoning of which must be taken into account in order to assess whether the contested decision contains an adequate statement of reasons, as noted in paragraph 40 above, the AACC sufficiently explained, in response to the applicant’s line of arguments, how her improper conduct made it possible to make a finding of obvious inadequacy for the purposes of Article 84(2) of the CEOS.

48 That conclusion is not invalidated by the arguments put forward by the applicant.

49 First, as regards the incident during which the applicant questioned the level of remuneration of local staff in the Political Section and their ability to perform their duties, the AACC set out, in the decision rejecting the complaint, the relevant facts. It referred to certain remarks and to the email of 13 October 2018, the content of which it reproduced. It explained how, in view of the fact that the applicant was not competent to intervene with regard to the level of remuneration of local staff, that email had created tension with the staff of the Political Section and had impeded her integration within the Delegation (decision rejecting the complaint, pp. 8 and 9). The circumstances of that incident, which were the subject of the dialogue of 17 October 2018 and the note from the Head of Delegation of 19 October 2012, were known to the applicant at the date of the contested decision. Thus, in her comments on the probationary report, the applicant explained the remarks she had made at the meeting during which those local staff had demanded a salary increase, as well as the email of 13 October 2018 (probationary report, p. 7).

50 Secondly, as regards the applicant’s overall relations with local staff and expatriates, the AACC explained, in the decision rejecting the complaint, how the applicant’s inappropriate conduct had damaged those relations, referring to a number of incidents between her local staff or expatriates, such as, in the case of the latter, the incident relating to the publication of an interview on the Delegation’s website and the accusation of favouritism made against her Head of Section. The circumstances of those incidents were also known to the applicant on the date of the contested decision, as evidenced by the note of the Head of Delegation of 4 December 2018. The applicant also explained in detail those incidents in her comments on the probationary report (probationary report, pp. 8 and 11).

51 Thirdly, the applicant claims, in the reply, that the administration cannot supplement the statement of reasons for the contested act after the decision rejecting the complaint. For that reason, she requests that the evidence submitted by the EEAS at the stage of the defence, namely Annexes B3, B4 and B6 to B12, which correspond inter alia to statements made by some of her colleagues, should be disregarded by the Court.

52 In that regard, it should be borne in mind that, where there is not an absence but an inadequacy of reasoning in the contested decision, explanations given in the course of the judicial proceedings may, in exceptional cases, remedy that inadequacy, so that the plea in law based on that inadequacy no longer justifies the annulment of the decision in question (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 52 and the case-law cited).

53 In the present case, for the reasons set out in paragraphs 44 to 50 above, the contested decision is adequately reasoned, and it is not necessary, in order to assess whether the administration complied with the obligation to state reasons laid down in Article 296 TFEU, to take account of the material produced for the first time by the EEAS during the proceedings before the Court.

54 Furthermore, under Article 85(1) of the Rules of Procedure, evidence produced or offered is to be submitted in the first exchange of pleadings.

55 In that regard, the case-law referred to in paragraph 52 above, relating to the Court’s assessment of the adequacy of the reasoning in the contested decision, does not prevent the EEAS from submitting material, including material new to the applicant, at the stage of the defence, nor does it prevent the Court from taking them into account when assessing the reality of the facts disputed by the applicant in the present action.

56 The applicant’s request that the Court reject Annexes B3, B4 and B6 to B12 to the defence must therefore be rejected.

57 It follows from the foregoing that the applicant’s complaint relating to the inadequacy of the reasoning in the contested decision and her request that certain material produced at the stage of the defence be disregarded must be rejected.

58 The first plea alleges infringement of Article 84(2) of the CEOS and comprises two parts. The applicant claims, in essence, by the first part of the plea, that the AACC erred in basing the contested decision on her allegedly inappropriate conduct and, by the second part, that the AACC failed to demonstrate the existence of ‘obvious inadequacy’ for the purposes of that provision.

(a) The first part, on the possibility of justifying dismissal before the end of the probationary period by the probationer’s conduct

59 In the first place, the applicant submits that, although, under the provisions of Article 84(3) of the CEOS, concerning dismissal at the end of the probationary period, the AACC may make a finding of inadequacy in relation to the work or the conduct of the probationer, by contrast, under the provisions of Article 84(2) of the CEOS, concerning dismissal before the end of that period, the finding of inadequacy can be based only on the work of the person concerned, that is, his or her ability to perform his or her duties and his or her efficiency in the service, to the exclusion of his or her conduct. In the present case, the main concern of the Head of Delegation was the applicant’s allegedly inappropriate conduct, whereas her work did not pose a problem.

60 In the second place, the applicant claims that the link which the decision rejecting the complaint seeks to establish between her allegedly inappropriate conduct and her work is unfounded and artificial.

61 With regard to the strained professional relations with her colleagues and external interlocutors, the decision rejecting the complaint gives three examples. As regards the first example, namely the criticisms relating to the quality of the work and to the salaries of local staff in the Political Section, the applicant submits that the AACC does not provide evidence as to how her conduct hampered her work or her integration into the Delegation. As regards the second example, relating to an interview published on the Delegation’s website, she states that the AACC considered only that she had ignored the Head of Delegation’s instructions. As regards the third example, relating to her participation in a meeting with the manager of a local television channel, the applicant submits that the assertion that her conduct undermined her ability to fulfil out her duties is unfounded. As regards the other factors relied on by the AACC to show that her allegedly inappropriate conduct rendered her work inadequate, the applicant denies having made an accusation of favouritism against the Head of Section.

62 As regards the alleged negative impact of her conduct on the reputation of the Delegation, the applicant considers that allegation to be unfounded. In fact, as regards the meeting with the manager of a local television channel, her conduct not only was most appropriate, but also could not have had any impact on the image of the Delegation, given that that manager knew the Head of Delegation and the Head of Section very well.

63 Lastly, the applicant claims that her work was not an issue. She continued to carry out her duties after being relocated to Brussels and set up press points for the Head of Delegation and the Special Envoy of the European Union in January 2019. She made numerous publications on social networks and organised a public awareness operation during the visit of the High Representative of the Union for Foreign Affairs and Security Policy in March 2019.

64 The applicant concludes that the AACC infringed Article 84(2) of the CEOS in so far as it based the contested decision on her allegedly inappropriate conduct when it should have based that decision on the inadequacy of her work.

66 In the first place, by the first part of the first plea, the applicant claims, in essence, that the AACC erred in law by relying on her conduct to adopt the contested decision.

67 In that regard, it should be noted that, in order to find that the applicant’s work was proving ‘obviously inadequate’ within the meaning of Article 84(2) of the CEOS, the AACC indeed relied, as the applicant claims, on her conduct, in particular towards her superiors, colleagues and external interlocutors. It follows from the wording of the contested decision, set out in part in paragraph 23 above, that it was the applicant’s inappropriate conduct and the consequences thereof which led the AACC to decide to terminate her contract before the end of the probationary period.

68 However, in so doing, the EEAS did not make the error of law alleged by the applicant.

‘A report on the contract staff member may be made at any time before the end of the probationary period if his work is proving obviously inadequate.

… On the basis of the report, the authority referred to in the first paragraph of Article 6 [of the CEOS] may decide to dismiss the contract staff member before the end of the probationary period, giving him one month’s notice, or to assign the contract staff member to another department for the remaining time of the probationary period.’

70 The administration is entitled to use the termination of contract provided for in Article 84(2) of the CEOS where scrutiny of the conduct of a staff member permits the conclusion that the conditions for the application of that article are met (judgment of 7 October 2009, Y v Commission, F‑29/08, EU:F:2009:136, paragraph 111).

71 The concept of ‘ability’ is broader than that of ‘efficiency’ and ‘conduct in the service’, so that, for example, the fact that events predate a staff member’s recruitment does not necessarily and automatically prevent the administration from taking them into account in order to assess that staff member’s ability to perform his or her duties (see, to that effect, judgment of 7 October 2009, Y v Commission, F‑29/08, EU:F:2009:136, paragraph 86).

72 Thus, contrary to what is claimed by the applicant, who defends an incorrect understanding of the concept of ‘obvious inadequacy’ for the purposes of Article 84(2) of the CEOS, the administration’s assessment of such inadequacy is not limited to the technical abilities, experience or commitment of the staff member concerned, but may also be based on the conduct of that staff member, as manifested in particular in his or her professional relations, towards his or her interlocutors, colleagues and superiors.

73 That conclusion is in no way called into question by the fact that, while the provisions of Article 84(3) of the CEOS concerning dismissal at the end of the probationary period refer to work and to conduct, those of Article 84(2) of the CEOS, concerning dismissal during the probationary period, refer, in the English version thereof, only to the work of the staff member concerned.

74 All language versions of an EU act must, in principle, be recognised as having the same value. In order to maintain the uniform interpretation of EU law, in the case of divergence between those versions, the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 49 and the case-law cited).

75 Thus, the wording used in one or more language versions of an act cannot serve as the sole basis for the interpretation of that act, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of EU law (see, to that effect, judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 50 and the case-law cited).

76 While the English version of Article 84(2) of the CEOS, inter alia, refers to the work of the probationer (‘if his work is proving obviously inadequate’), the same is not true of other language versions of that article, in particular the French (‘en cas d’inaptitude manifeste’), Italian (‘in caso di manifesta inidoneità’) and Spanish (‘en caso de ineptitud manifiesta’) versions.

77 In any event, even in the English version, the term ‘work’ is broad enough to include the probationer’s conduct in assessing the adequacy of his or her work.

78 Thus, it must be held that the wording of Article 84(2) of the CEOS, in comparison with that of Article 84(3) of the CEOS, emphasises the obvious nature of the inadequacy of the staff member concerned and does not in any way preclude the examination of the staff member’s conduct from leading to such a finding.

79 Furthermore, as the EEAS points out, it is settled case-law that the function of a probationary period is to enable the administration to make a concrete assessment of the probationer’s ability to perform the duties required by a particular post and his or her efficiency and conduct in the service (see judgment of 9 July 2009, Notarnicola v Court of Auditors, F‑85/08, EU:F:2009:94, paragraph 69 and the case-law cited).

80 Consequently, the possibility for the AACC of relying on the probationer’s conduct in order to make a finding of obvious inadequacy for the purposes of Article 84(2) of the CEOS is confirmed by the purpose of the rules on the probationary period, the function of which is, inter alia, to enable the administration to assess that conduct.

81 It follows from the foregoing that, in accordance with the case-law referred to in paragraph 70 above, the EEAS did not infringe Article 84(2) of the CEOS by relying on the applicant’s conduct towards her superiors, colleagues and external interlocutors in order to make a finding of obvious inadequacy.

82 In the second place, in so far as the applicant claims that the reasoning in the decision rejecting the complaint is unfounded and artificial as regards the link between her inappropriate conduct and the inadequacy of her work, that argument must be rejected, since it is based on the incorrect premiss that the applicant’s conduct towards her superiors, colleagues and external interlocutors does not form an integral part of the performance of her duties.

83 Furthermore, in so far as the applicant disputes the reality of the facts and their assessment by the administration, that line of argument, which is broadly similar to that set out in the second part of the second plea, may be examined in the context of the second plea and rejected for the reasons set out in paragraphs 118 to 154 below.

(b) The second part, on the degree of inadequacy required to justify dismissal before the end of the probationary period

85 The applicant claims that dismissal before the end of the probationary period is possible only if the work of the member of the contract staff is ‘obviously’ inadequate. She considers that neither the Head of Delegation nor the AACC, in the contested decision, maintained that her inadequacy was obvious. Although the AACC expressly maintained this in the decision rejecting the complaint, it was a purely formal statement. The applicant considers that, by failing to demonstrate that she was ‘obviously’ inadequate, the AACC infringed Article 84(2) of the CEOS.

87 The applicant’s argument, alleging, in essence, that the AACC erred in law in terminating her contract of employment without relying on the obvious nature of her inadequacy, must be rejected.

88 It is apparent from the documents in the file that, although the contested decision itself does not expressly mention that the applicant’s inadequacy was obvious, the Head of Delegation and then the AACC in particular in the decision rejecting the complaint did indeed consider that to be the case, in accordance with the provisions of Article 84(2) of the CEOS.

89 In that regard, it should be noted that both the Head of Delegation and the AACC emphasised the evident and serious nature of the applicant’s inability to perform her duties. Already in the note drawn up by the Head of Delegation on 19 October 2018, that is, less than three weeks after the applicant’s arrival at the Delegation’s premises, he took the view that the email of 13 October 2018 constituted a ‘serious’ case, that it was ‘unacceptable’ and had ‘grave’ consequences and that the applicant’s conduct constituted ‘gross’ professional misconduct. In his note of 4 December 2018, he referred to the continuing deterioration in the situation, described certain facts as a ‘clear and manifest’ breach of the instructions given to the applicant by her superiors and again emphasised the ‘grave’ consequences of the conduct in question. In the probationary report, he twice confirmed the gravity of the situation, the applicant’s difficult professional relations with many of her colleagues encountered ‘almost from the first day’, the number of incidents and their possible security consequences and the applicant’s inability to observe the ‘minimal’ courtesy required in a diplomatic mission. The contested decision, which refers to the probationary report and the relevant provisions of Article 84(2) of the CEOS, mentions the seriousness of the incidents in question and their impact on the functioning of the Delegation. As regards the decision rejecting the complaint, it expressly states on two occasions that the applicant was proving ‘obviously’ inadequate (pp. 8 and 16) and states, inter alia, that her refusal to follow her superiors’ instructions is ‘blatant’.

90 The second part of the first plea must therefore be rejected as unfounded and, with it, the first plea in its entirety.

4. The second plea, alleging failure to state adequate reasons and manifest error of assessment

91 The second plea is in two parts. By the first, the applicant disputes the content of the probationary report. By the second, she submits that the contested decision is not based on sufficiently clear factual aspects which, on an objective view, are capable of being regarded as constituting obvious inadequacy.

(a) The first part, on the failure to state adequate reasons and manifest error of assessment vitiating the probationary report and, consequently, the contested decision

92 The applicant maintains that the probationary report is vitiated by an inadequate statement of reasons and a manifest error of assessment.

93 In the first place, the applicant claims that, in section 6.1 of the probationary report, the Head of Delegation essentially addresses only aspects of her conduct, whereas that section concerns efficiency. Similarly, she considers that, in section 6.2 of the probationary report, the Head of Delegation addresses her conduct, whereas that section deals with the probationer’s abilities.

94 In the second place, the applicant considers that, by stating, in section 6.3 of the probationary report, that ‘hardly any day has passed over this 2-month period [of presence at the Delegation] without an incident’, the Head of Delegation showed inconsistency. First of all, she maintains that, even if the existence of such incidents were established, which is not the case, only four (or at most five) have occurred over a period of 60 days.

95 Furthermore, the applicant disputes the assessment made by the Head of Delegation, in section 6.3 of the probationary report, according to which her conduct jeopardised her security and that of the Delegation. First, the email of 13 October 2018 did not give rise to any security concerns. Secondly, the Head of Delegation contradicts himself by claiming, on the one hand, that the applicant’s conduct could have security consequences and, on the other hand, that that conduct did in fact have such consequences. Thirdly, the incident which took place on the occasion of the journey of 22 November 2018 was caused by the Delegation’s Head of Administration (‘the Head of Administration’). Fourthly, the statement relating to the applicant’s aggressiveness is inaccurate, since she had adapted to difficult circumstances.

96 Lastly, the applicant claims that, contrary to what is stated in that section of the probationary report, she retained the confidence of her superiors, given that she continued to carry out her daily tasks and the Head of Delegation relied on her for publications on social media.

97 The applicant concludes that, in so far as, by the contested decision, the AACC approved a probationary report vitiated by an inadequate statement of reasons and a manifest error of assessment, the contested decision is itself vitiated by those irregularities.

99 As a preliminary point, it follows from the wording of Article 84(2) of the CEOS that the administration is required to draw up a report where it envisages dismissing a member of the contract staff before the end of the probationary period.

100 In the present case, it should be noted that the probationary report mentions the general purpose of the post occupied by the applicant and the duties and responsibilities associated with that post. It includes an assessment of the applicant’s efficiency, abilities and conduct and a general comment. Lastly, it concludes with a proposal for dismissal before the end of the probationary period.

101 In the first place, the applicant claims that the probationary report wrongly addresses aspects of her conduct in section 6.1, under the heading ‘Efficiency’, and in section 6.2, under the heading ‘Abilities (competencies)’.

103 The probationary report includes, in section 6.1, in accordance with the heading of that section, an assessment of the applicant’s efficiency, including the positive aspects thereof, as it states that, since her arrival at the Delegation, the applicant had proved to be experienced, energetic and committed. Moreover, the mere fact that that section also mentions the applicant’s poor interpersonal relations, her confrontational attitude and the existence of incidents likely to have security consequences does not permit the inference that the probationary report is vitiated by an inadequate statement of reasons or a manifest error of assessment, given that the deterioration in professional relations resulting from such an attitude may in fact have an impact on the efficiency of the staff member concerned.

104 Similarly, it should be noted that section 6.2 of the probationary report contains, in accordance with its heading, an assessment of the applicant’s abilities, which is positive as regards, on the one hand, her experience in the media and communication field and, on the other, her technical skills. Furthermore, although that section mentions the applicant’s inability to maintain respectful and constructive working relations with most of her colleagues, that reference is not irrelevant, given that such inability is indeed at odds with the communication skills expected of a member of the contract staff of the EEAS, a fortiori where that staff member carries out the duties of Press and Information Officer.

105 In the second place, in so far as the applicant disputes the considerations set out in section 6.3 of the probationary report, under the heading ‘Aspects of conduct’, it must be held that there is no inconsistency between the Head of Delegation’s assessment in that section, according to which ‘hardly any day has passed … without an incident, minor or serious’, and the fact that, according to the applicant, only five incidents, which in her view actually constitute only four incidents, are listed in section 6.1 of that report.

106 The existence of a wide discretion on the part of the reporting officers presupposes that they are not obliged to include in the reports provided for in Article 84(2) of the CEOS all the relevant factual and legal elements supporting their assessment or to consider and reply to all the points disputed by the staff member concerned (see, to that effect and by analogy, judgments of 10 September 2009, van Arum v Parliament, F‑139/07, EU:F:2009:105, paragraph 88, and of 13 December 2012, BW v Commission, F‑2/11, EU:F:2012:194, paragraph 43).

107 Furthermore, it should be noted that the number of incidents to which the probationary report refers is very high in relation to the limited period during which the applicant actually performed her duties on the premises of the Delegation, that is, between 1 October and 23 November 2018. The assessment contained in the probationary report relating to the number of incidents is, moreover, corroborated by the statements of the applicant’s colleagues, in particular those of the Head of Administration, the Head of Section and the political advisor, referring to several other incidents not mentioned in that report.

108 Furthermore, in so far as the applicant puts forward arguments seeking to challenge the merits of the assessments contained in the probationary report with regard, in particular, to security issues and the relationship of confidence with her hierarchical superiors, that line of argument, which largely overlaps with that set out in the second part of the present plea, may be examined in the context of the second part and rejected for the reasons set out in paragraphs 118 to 154 below.

(b) The second part, on the assessment of the factual aspects capable of supporting a finding of obvious inadequacy

110 The applicant submits that the finding of obvious inadequacy must have a certain degree of obviousness and be based on sufficiently clear factual aspects which, on an objective view, are capable of being regarded as constituting such inadequacy. She considers that the facts relied on in support of the contested decision do not fulfil that condition.

111 In the first place, as regards the alleged incident during which she openly confronted local staff, both orally and in writing, as regards their capacity to hold their jobs and the level of their pay, the applicant states that the meeting of 11 October 2018 and the exchange of emails on 13 October 2018 correspond to a single incident and that she took part in the discussion concerning the remuneration of local staff only at their invitation. She points out, with regard to that email exchange, that the Press and Communication Assistant was on the Delegation’s premises at the weekend during the evening and had behaved in a disrespectful and hostile manner towards her, so that she had filed an incident report. She also states that that member of staff had been negligent in his work and that the five local staff in the Political Section were inefficient, frequently absent and had unreasonable salary requirements.

112 In the second place, as regards the alleged incident in which she challenged the guidance of her Head of Section, the applicant states that the latter wished to sign a contract with an association whose capacity to conduct a campaign for International Human Rights Day was doubtful. Ultimately, the Delegation selected another agency, suggested by the applicant, and the campaign was so successful that the Head of Section insisted, a few months later, that that agency should work with the Delegation again. The applicant emphasises that she did not challenge the guidance of the Head of Section.

113 In the third place, as regards the alleged incident during which she ignored the written instructions of the Head of Delegation, the applicant states that the Head of Delegation had instructed her to publish an interview on the Delegation’s website, then changed his mind on the ground that the person interviewed did not want that interview to be published. However, not only did that person have no problem with that publication, but the interview remained online after the applicant left the Delegation and was chosen for publication on the intranet site of the DG for International Cooperation and Development.

114 In the fourth place, as regards the alleged incident between the applicant and a local partner of the Delegation, the applicant states that that partner was the association to which the Head of Section wished to entrust the campaign for International Human Rights Day, even though it did not have the capacity to conduct that campaign. As regards the two incidents with local partners referred to in the decision rejecting the complaint, the applicant states that the blame for the first incident, relating to colleagues in the DG for International Cooperation and Development, is unfounded and is based on a statement by a single colleague who was absent from the third country. As regards the second incident, relating to the meeting held with the manager of a local television channel, the applicant denies that she acted improperly on that occasion.

115 In the fifth and last place, as regards the incident with her security team on the occasion of the journey of 22 November 2018, she claims that the incident was not her doing and did not endanger either her security or that of her colleagues.

116 The applicant concludes from this that the AACC did not refer to sufficiently clear factual aspects which, on an objective view, are capable of being regarded as constituting obvious inadequacy and that the contested decision is therefore vitiated by a manifest error of assessment.

118 The decision not to retain a member of the contract staff in his or her post during the probationary period or at the end of the probationary period is inherently different from the dismissal of a member of staff who has previously been confirmed in his or her post on the basis of a positive end-of-probation report. Whereas in the latter case a detailed examination is required of the reasons justifying termination of an established employment relationship, decisions whether or not to retain a staff member in his or her post during the probationary period or at the end of the probationary period require a general review of the probation period in order to identify whether or not there is a series of positive considerations showing that the retention of the staff member in his or her post is in the interests of the service (see, to that effect, judgment of 9 July 2009, Notarnicola v Court of Auditors, F‑85/08, EU:F:2009:94, paragraphs 70 and 71).

119 The administration has a wide discretion when it comes to assessing the abilities and performance of probationary staff members in accordance with the interest of the service. Accordingly, it is not for the Court to substitute its own judgment for that of the institutions in so far as concerns the outcome of a probationary period and the suitability of a candidate for confirmation of contract 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 (judgments of 9 July 2009, Notarnicola v Court of Auditors, F‑85/08, EU:F:2009:94, paragraph 72, and of 7 October 2009, Y v Commission, F‑29/08, EU:F:2009:136, paragraph 67).

120 It should also be noted that, given the use of the term ‘obviously’, the finding of inadequacy provided for in Article 84(2) of the CEOS must be fairly evident. Furthermore, that finding has significant consequences for the situation of the staff member, since it allows the institution to dismiss him or her at any time during his or her probationary period (judgment of 7 October 2009, Y v Commission, F‑29/08, EU:F:2009:136, paragraph 70).

121 Consequently, when an institution adopts a decision to dismiss a staff member pursuant to Article 84(2) of the CEOS, it must base that decision on sufficiently clear factual aspects which, on an objective view, are capable of being regarded as constituting obvious inadequacy. It is for the Court, in reviewing whether there has been a manifest error of assessment and taking account of the administration’s discretion in assessing the ability of the staff member during the probationary period, to satisfy itself that such aspects are present (judgment of 7 October 2009, Y v Commission, F‑29/08, EU:F:2009:136, paragraph 71).

122 It is therefore necessary to examine whether the AACC relied, in the present case, on sufficiently clear factual aspects which, on an objective view, are capable of being regarded as constituting obvious inadequacy. To that end, it is necessary to examine the factual aspects relied on by the AACC in the contested decision and then, as a whole, the assessment which it made of the applicant’s ability to perform her duties.

(1) The factual aspects on which the AACC relied in adopting the contested decision

123 It is appropriate, first of all, to examine, in an essentially chronological order, the main factual aspects in support of the contested decision which are disputed by the applicant.

124 In the first place, it is apparent from the email of 13 October 2018, sent at 17.32 to the Press and Communication Assistant, that shortly after her arrival in the third country, the applicant questioned the level of remuneration of local staff in the Political Section and made an extremely negative and general judgement on the competence of those staff members.

125 The applicant, who disputes the inappropriateness of that email, states that she had had a disagreement with the Press and Communication Assistant and other local staff of the Political Section at a meeting held on 11 October 2018 at which she had taken part in the discussion of the level of remuneration of those staff members at their invitation. She states that that assistant did not provide her with the necessary information, that he had sent her a reproachful email and that he had behaved aggressively towards her. She adds that she filed an incident report on the security issues arising from the presence of that assistant on the Delegation’s premises during the evening of Saturday 13 October 2018.

126 However, since the terms of the email of 13 October 2018 appear to be seriously inappropriate and concern not only the Press and Communication Assistant, but a group of five members of staff in the Political Section, the Head of Delegation did not make a manifest error of assessment in considering, in his note of 19 October 2018, that the style and content of that email were unacceptable and constituted gross professional misconduct. In that regard, it should be noted that, as the Head of Delegation stated in that note, the applicant was not competent to intervene as regards the level of remuneration of local staff and that the judgement on the abilities of those staff members was irrelevant given her recent arrival in the Delegation. Furthermore, as regards the attitude of the Press and Communication Assistant on Saturday 13 October 2018 between 17.45 and 18.00, the alleged aggressiveness of that assistant’s conduct is not apparent from the exchange of emails in the file. Furthermore, although the internal security rules provided that local staff were not to remain unsupervised outside working hours, the applicant herself states that that assistant was to take part that very evening in a social event at the residence of the Head of Delegation, which could explain his presence on the Delegation’s premises.

127 In addition, it is established to the requisite standard that the applicant’s inappropriate attitude towards local staff in the Political Section, as manifested inter alia in the email of 13 October 2018, caused a serious deterioration in her relations with her colleagues in that section and impeded her ability to perform her duties satisfactorily. That deterioration in relations is corroborated, as regards local staff, by the fact that the applicant asked the Press and Communication Assistant to convey to his colleagues the message that ‘sitting around’ would no longer be tolerated. That deterioration was, moreover, confirmed by the Head of Section and the political advisor in their statements submitted to the Court.

128 It should also be noted that sending such an email is clearly at odds with the communication skills expected of the Delegation’s Press and Information Officer and that, during the dialogue of 17 October 2018, the applicant did not appear to have been aware of the seriousness of that incident, as is apparent from the note which the Head of Delegation sent to her on 19 October 2012.

129 In the second place, it is also established to the requisite standard that the applicant’s conduct proved inappropriate on the occasion of a seminar on ‘Women’s economic empowerment’, organised by the DG for International Cooperation and Development on 24 October 2018, that is, a few days after the dialogue of 17 October 2018. It is apparent from an exchange of emails reproduced in the decision rejecting the complaint that, on 26 October 2018, the team leader of the Cooperation Operations Section of that directorate-general informed the applicant of objections to the publication on the Delegation’s website of an interview with a representative of the administration of the third country carried out during that seminar and requested the temporary withdrawal of that publication in order to ensure that it would be reread. It is also apparent from that exchange of emails that that team leader indicated that the applicant’s organisation of interviews during that seminar had disrupted that seminar and that it was necessary to apologise to interlocutors from the third country. It is also established that, despite the instructions of the Head of Section and subsequently those of the Head of Delegation, the applicant refused to withdraw that publication temporarily.

130 The applicant claims that the Head of Delegation had first asked her to publish that interview before changing his mind on the ground that such publication could give rise to difficulties for the representative of the administration of the third country concerned. She states that that publication not only did not cause any difficulty for that representative, but also remained online after her departure from the third country and was chosen by the DG for International Cooperation and Development for publication on the intranet site of that directorate-general.

131 However, the Head of Delegation was entitled to take the view, in his note to the applicant of 4 December 2019, that her refusal to withdraw the publication in question from the Delegation’s website constituted a clear and manifest breach of her duty to comply with the written instructions of her superiors. Despite the fact that the Head of Delegation initially approved that publication, which is, moreover, not borne out by the wording of the applicant’s note of 20 December 2018 (‘thinking that it was agreed and I had discretion to publish’), and even assuming that that publication remained online after the applicant left the third country, it is demonstrated that, after objections had been made to that publication, the applicant failed to comply with the instructions of her immediate superior and of the Head of Delegation.

132 Furthermore, it is apparent from the decision rejecting the complaint that that incident caused further deterioration in the applicant’s professional relations with her colleagues. In that regard, the exchange of emails of 26 October 2018 and the statements of the team leader and of a policy officer of the Cooperation Operations Section of the DG for International Cooperation and Development, who were present, respectively, during the introduction and at various stages of the seminar on women’s economic empowerment, constitute consistent evidence of the applicant’s inadequate conduct and of her difficult relations with the staff of that directorate-general and with external interlocutors, in particular a consultant from the third country.

133 In the third place, it is apparent from the decision rejecting the complaint that, at a meeting organised by the Head of Section with the manager of a local television channel, the applicant repeatedly prevented that manager from presenting her project and abruptly left the meeting room.

134 The applicant states that that alleged incident concerns a call for tenders for an information campaign on the occasion of International Human Rights Day on 10 December 2018. She states that the Head of Section wanted the television channel concerned to be awarded the contract, even though that channel was not in a position to conduct such a campaign.

135 In that regard, it should be noted that the applicant was responsible for monitoring the budget of the Political Section, but was not, however, competent to decide to award the contract in question. In addition, although the applicant disputes the inappropriateness of her conduct at the meeting with the manager of that television channel, her allegations are contradicted by the sufficiently precise presentation of the facts in the decision rejecting the complaint, which is, moreover, confirmed by the statement of the Head of Section produced before the Court. Moreover, it is apparent from the applicant’s comments on the probationary report that she was radically opposed to the award of the contract to that television channel and had a very critical view of the presentation made by the manager of that channel at the meeting.

136 The course of that meeting with the manager of a local television channel thus corroborates the applicant’s sometimes aggressive attitude. In so far as that meeting involved an external interlocutor, it could have had a negative impact on the image of the Delegation, even if that interlocutor knew the Head of Delegation and the Head of Section.

137 In the fourth place, it is apparent from the decision rejecting the complaint that the applicant publicly accused the Head of Section of favouritism. It is apparent, in particular, from the note sent by the Head of Delegation to the applicant on 4 December 2018 and from her comments on the probationary report that that incident, which occurred during a lunch on 11 November 2018, also concerns the call for tenders organised for the information campaign for International Human Rights Day on 10 December 2018.

138 Although the applicant denies having accused the Head of Section of favouritism, it is sufficiently established that the accusations in question were made. In particular, the considerations set out in the decision rejecting the complaint are not called into question by the applicant’s comments on the probationary report, according to which, during a lunch organised in a place to which staff and occasional visitors have access, she stated ‘in no unclear terms’ that only one agency was in a position to conduct that campaign and ‘insisted’ that it would be ‘mismanagement’ if the contract relating to that campaign were awarded to the television channel concerned. Furthermore, the considerations in the decision rejecting the complaint are corroborated by the statements of the Head of Section and of the Head of Administration produced before the Court, which confirm the nature and circumstances of the accusations made by the applicant.

139 As the AACC stated, in essence, in the decision rejecting the complaint, that incident thus tends to confirm that the applicant’s conduct was inappropriate and that she had a confrontational relationship with her professional circle.

140 In the fifth and last place, it is apparent in particular from the probationary report that, on the occasion of the journey of 22 November 2018, an incident occurred between the applicant and the security team. In that regard, it is common ground that, although the applicant had to attend a meeting with a representative of an international organisation outside the Delegation’s compound, the security team asked her to change her clothing in order to comply with the rules in force.

141 The applicant submits that the Head of Administration is responsible for the incident that occurred on the occasion of the journey of 22 November 2018 that had been approved by the competent Regional Security Officer. While she was seated in the secure car, the security officer refused to drive her to her meeting place and the Head of the Administration ordered her to step out of the vehicle. She agreed to change her outfit, even though it was suitable. The Regional Security Officer finally authorised the departure, but the applicant arrived late and at the wrong place for her meeting.

142 Despite the applicant’s explanations, the incident that occurred between her and the security team is such as to substantiate, among other incidents, a finding of obvious inadequacy for the purposes of Article 84(2) of the CEOS. It is apparent from an exchange of emails of 22 November 2018 between the Head of Delegation, the Regional Security Officer and a member of the close protection team that the applicant was unjustifiably angry with a member of that team. In that regard, the applicant’s explanations that the dress she wore was not ‘very short’ are insufficient to call into question the security team’s assessment of the inappropriateness of her attire. In addition, it is apparent from an exchange of emails of 2 October 2018 that the applicant had been reminded of the rules relating to the dress code. Furthermore, it is apparent from the applicant’s comments on the probationary report that she was critical of the security contractor and ‘asked … for an explanation’ in writing on that incident. Moreover, the applicant’s claims that the Head of Administration was responsible for the incident in question are wholly unfounded. It is apparent from the statements of the Regional Security Officer that the Head of Administration, who is a member of the team responsible for security, intervened at his request and, according to him, advised the applicant ‘in a very kind and polite manner’ to change her clothing.

143 It follows from the foregoing that the arguments by which the applicant disputes the sufficiently clear nature of the factual aspects on which the AACC relied in order to adopt the contested decision must be rejected.

(2) The assessment made by the AACC of the applicant’s ability to perform her duties

144 It is now necessary to examine the merits of the overall assessment made by the AACC of the applicant’s ability to perform her duties.

145 In the first place, the AACC did not make a manifest error of assessment in finding, in the contested decision, that the applicant’s conduct had proved inappropriate. It is apparent from the factual aspects mentioned in paragraphs 123 to 143 above that the applicant’s behaviour in the performance of her duties was on many occasions inappropriate and confrontational. In that regard, the AACC was entitled to state, in the decision rejecting the complaint, that the applicant’s conduct was at odds with the competences expected of the Delegation’s Press and Information Officer, given that the applicant’s attitude was confrontational and that she did not meet the minimal courtesy requirements.

146 It is also apparent from the factual aspects mentioned in paragraphs 123 to 143 above that the applicant’s inappropriate conduct led to a deterioration in her professional relations with most of her colleagues, inter alia the Head of Delegation, the Head of Administration, the Head of Section, the political advisor, local staff in the Political Section, and also members of the Cooperation Operations Section of the DG for International Cooperation and Development and the security team. That deterioration in relations also occurred – over a short period – in respect of external interlocutors, such as the manager of a local television channel and a consultant who participated in the seminar on women’s economic empowerment.

147 In the second place, nor did the AACC make a manifest error of assessment in finding, in the contested decision, that the applicant had refused to follow the instructions of her superiors, as is apparent from her attitude during the seminar on women’s economic empowerment.

148 The considerations in the decision rejecting the complaint concerning the consequences of the applicant’s conduct for the Delegation’s image are also not vitiated by any manifest error of assessment, in view of the fact that that conduct concerned external interlocutors. That aspect is, moreover, corroborated by the statements of the team leader and of a policy officer in the Cooperation Operations Section of the DG for International Cooperation and Development produced before the Court.

149 In the third place, the AACC again did not make a manifest error of assessment in finding, in the decision rejecting the complaint, that the applicant’s inappropriate conduct was likely to have security consequences.

150 In that regard, it should be pointed out that, contrary to what the applicant claims, the fact that the probationary report refers to the potential security implications of the incident which occurred on the occasion of the journey of 22 November 2018 (section 6.1) and then to the security consequences of the situation, which were clear and direct for the applicant and potential for the Delegation (section 6.3), does not permit the inference that that report is vitiated by inconsistency.

151 It is sufficiently clear from the wording of that report that the applicant’s attitude presented security risks without that attitude having caused actual damage. Moreover, the AACC could reasonably consider that the applicant’s inappropriate conduct presented risks of that kind since cultural sensitivity was extreme in the third country and the risk exposure of the Delegation was serious. In such a context, the existence of confrontational professional relations between the applicant and local staff in the Political Section, members of the security team and an external partner of the Delegation and the failure to comply with instructions from her superiors were such as to give rise to such risks. In that regard, it should be borne in mind that, first, the email of 13 October 2018 contained very harsh criticism of the work of local staff, secondly, on 26 October 2018, the applicant did not comply with her superiors’ instructions regarding the publication of an interview with a representative of the administration of the third country and, thirdly, according to the applicant’s comments on the probationary report, on the occasion of the journey of 22 November 2018, she arrived late and at the wrong place for the meeting she was supposed to attend. Those facts are such as to substantiate the security concerns mentioned by the AACC in the decision rejecting the complaint.

152 In the fourth and last place, the ground of the contested decision relating to the existence of a loss of confidence is not vitiated by a manifest error of assessment, contrary to what the applicant claims. In particular, the reality of that loss of confidence is not called into question by the fact that the applicant continued to carry out her day-to-day tasks, in particular at the request of the Head of Delegation. Such a loss of confidence, which is apparent from the latter’s note of 4 December 2018 and from the probationary report, is confirmed by the deterioration in the applicant’s relations with the Head of Delegation and the Head of Section and by her refusal to follow their instructions.

153 In those circumstances, in view of the number and seriousness of the incidents that occurred and the nature of the duties of a Press and Information Officer in a country where the degree of risk is high, and despite certain positive aspects of the assessment of the applicant and the difficulty of the conditions for performing her duties in that country, the AACC did not make a manifest error of assessment in concluding that the inadequacy of the applicant’s work was obvious for the purposes of Article 84(2) of the CEOS.

154 It follows from the foregoing that the second part of the second plea must be rejected as unfounded and, with it, the second plea in its entirety.

155 In the first place, the applicant submits that the Head of Delegation relied on security concerns as a pretext for terminating her contract.

156 In the second place, according to the applicant, the decision to terminate her contract was taken before the adoption of the contested decision, and even before the incidents referred to by the Head of Delegation in his note of 4 December 2018. Already at the beginning of November 2018, electoral experts of the European Union had informed the applicant that she was going to be dismissed. The Head of Delegation, who was not satisfied with the appointment of the applicant, put together a file in advance to justify her dismissal. Thus, at the dialogue of 17 October 2018, he did not ask her to explain herself, but stated that he was going to terminate her contract of employment.

157 In the third place, the applicant states that the contested decision was adopted in a context of psychological harassment, which could be taken into account to find that the purpose of that decision was to harm her, even though the facts relied on by the applicant may not be characterised, as such, as harassment within the meaning of Article 12a of the Staff Regulations. She states that she made a request for assistance on the ground that she had been subjected to harassment by the Head of Delegation and maintains that that was the case.

158 The applicant concludes that, in adopting the contested decision, the Head of Delegation used his powers with the aim of causing her harm and that he therefore misused his powers.

160 The concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Staff Regulations for dealing with the circumstances of the case (see judgment of 5 June 2003, O’Hannrachain v Parliament, C‑121/01 P, EU:C:2003:323, paragraph 46 and the case-law cited).

161 In the first place, as is apparent from paragraphs 149 and 150 above, the Head of Delegation did not make a manifest error of assessment in considering, in the probationary report, that the applicant’s inappropriate conduct was likely to have security consequences. Furthermore, even if he had made an error on that point, which is not the case, it has not been established that such a consideration was motivated by any objective other than the interests of the service.

162 In the second place, it is not apparent from the documents in the file that the Head of Delegation took the decision to request the termination of the applicant’s contract before the incidents referred to in the note which he sent to her on 4 December 2019 occurred. In that regard, it should be noted that the remarks made, according to the applicant, by the electoral experts at the beginning of November 2018 are not substantiated and do not come from the Head of Delegation. Furthermore, although the applicant claims that, at the dialogue of 17 October 2018, the latter informed her that he was going to terminate her contract, that allegation is contradicted by the note which he sent her on 19 October 2018, stating that it was the repetition of inappropriate conduct which would lead him to recommend the termination of her contract.

163 In the third place, the fact that the applicant requested the administration’s assistance under Article 24 of the Staff Regulations in respect of acts of psychological harassment does not permit the inference that the contested decision is vitiated by a misuse of powers.

164 It is true that the existence of a context of psychological harassment may be taken into account where the author of the harassment is the signatory of the dismissal decision – or one of the signatories of the probationary report on the basis of which the dismissal was decided – in order to establish that the dismissal decision was adopted with the aim of harming the staff member, and that it is therefore vitiated by a misuse of power (judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 71).

165 Thus, where an allegation of psychological harassment is relied on in support of heads of claim directed against a dismissal decision taken before the end of the probationary period, misuse of power may also be accepted if the dismissal decision was adopted in order to undermine the personality, dignity or physical or psychological integrity of the staff member (see, to that effect and by analogy, judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 72).

166 Furthermore, it is possible that the facts relied on to prove the existence of psychological harassment, even though they may not be characterised as such within the meaning of the provisions of Article 12a of the Staff Regulations, nevertheless show that the dismissal decision is vitiated by a misuse of power and that it should, consequently, be annulled (judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 73).

167 However, the request for assistance relied on by the applicant was rejected by a decision of 8 May 2019, which was confirmed by a decision of 5 December 2019. That decision, which is now final, is in principle presumed to be lawful (see, to that effect, judgment of 6 October 2015, Schrems, C‑362/14, EU:C:2015:650, paragraph 52 and the case-law cited).

168 Moreover, although the applicant states that she reiterates the facts put forward in her request for assistance and maintains that she was the subject of harassment by the Head of Delegation, she does not set out the facts and reasoning in support of that allegation of harassment either in the application or in the reply.

169 In those circumstances, in the absence of proven psychological harassment and specific facts developed in support of such an allegation, the applicant is not justified in relying on the existence of a context of psychological harassment within the meaning of the case-law recalled in paragraph 164 above, or in claiming that the contested decision was adopted with the aim of harming her.

170 Thus, there is no cogent evidence showing that the contested decision was adopted for a purpose other than the interests of the service.

171 The third plea in law must therefore be rejected as unfounded, as must, consequently, the claim for annulment.

172 By her claim for damages, the applicant seeks compensation for the material and non-material damage allegedly caused to her by the contested decision.

173 As regards material damage, the applicant submits that, if the AACC had not unlawfully dismissed her, she would have been able to perform a three-year contract and could have had that contract renewed either for a fixed period of up to five years and then for an indefinite period or directly for an indefinite period. She claims that, given the other benefits conferred on her by her contract (expatriation allowance, hardship allowance, paid flights) and taking account of a 50% chance that her contract would be renewed for a period of five years, the material damage resulting from her dismissal and the loss of the opportunity to renew her contract amounts to EUR 449 397.05.

174 As regards non-material damage, the applicant submits that deployment to a country with difficult living conditions requires long and complex planning. She states that she had to follow the Delegation’s schedules several months before being assigned to it, that she lived with the uncertainty of not knowing when she would be deployed and that she had to arrange by herself many practical aspects of taking up her duties at the Delegation, besides the effort she had to invest in preparing mentally. In addition, she invested in learning the language and characteristics of the third country. The applicant feels hurt and insulted by the fact that her engagement was lightly and unjustly reduced to nothing. She considers that her non-material damage, which cannot be compensated in full by the annulment of the contested decision, must be made good by the payment of a lump sum of EUR 20 000.

176 It should be borne in mind that, in civil service issues, a claim for compensation for material and non-material damage must be rejected in so far as it is closely linked to the claim for annulment, which itself was dismissed as unfounded (see judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 93 and the case-law cited).

177 In the present case, it must be held that the claim for damages is closely linked to the claim for annulment. First, the applicant seeks compensation for the material and non-material damage resulting from the contested decision alone. Secondly, the applicant explains the nature of that damage, but does not rely, in support of her claim for damages, on heads of unlawfulness which differ from those which she set out in support of her claim for annulment.

178 In that context, since the claim for annulment has been rejected as unfounded, the claim for damages must also be rejected.

179 It follows from all the foregoing that the action must be dismissed in its entirety.

180 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the EEAS.

2. The complaints submitted under the first two pleas in law, alleging failure to state adequate reasons, and the request that the Court disregard certain material produced by the EEAS

(a) The first part, on the possibility of justifying dismissal before the end of the probationary period by the probationer’s conduct

(b) The second part, on the degree of inadequacy required to justify dismissal before the end of the probationary period

4. The second plea, alleging failure to state adequate reasons and manifest error of assessment

(a) The first part, on the failure to state adequate reasons and manifest error of assessment vitiating the probationary report and, consequently, the contested decision

(b) The second part, on the assessment of the factual aspects capable of supporting a finding of obvious inadequacy

(1) The factual aspects on which the AACC relied in adopting the contested decision

(2) The assessment made by the AACC of the applicant’s ability to perform her duties

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ID v EEAS (Civil service - Inappropriate conduct - Judgment) [2021] EUECJ T-28/20 (07 July 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T2820.html Cite as: ECLI:EU:T:2021:416, [2021] EUECJ T-28/20, EU:T:2021:416

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