Corte di giustizia UE/2026

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 17 June 2026 ( * ) ( Civil service – Members of the temporary staff – [OSCURATO:PERSONA] staff – Fixed-term contract – Dismissal at the end of the probationary period – [OSCURATO:PERSONA] 14 of the CEOS – Decision rejecting the complaint – Competence of the author of the act – Delegation of powers ) [OSCURATO:PERSONA] T‑237/24, DV, represented by S. Pappas and A. Pappas, lawyers, applicant, v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), represented by H. Caniard, C. Carroll and R.-A. Popa, acting as Agents, and by B. Wägenbaur, lawyer, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed, at the time of the deliberations, of L. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], M. [OSCURATO:PERSONA] and T. Perišin, [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. Marghelis, Administrator, having regard to the written part of the procedure, further to the hearing on 17 [OSCURATO:PERSONA] 2025, gives the following [OSCURATO:PERSONA] 1 By her action under [OSCURATO:PERSONA] 270 [OSCURATO:PERSONA], the applicant, DV, seeks the annulment, first, of the decision of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 27 June 2023 by which she was dismissed at the end of her probationary period (‘the dismissal decision’) and, second, of the decision of the [OSCURATO:PERSONA] (‘the FRO’) of 26 January 2024 to reject her complaint against the dismissal decision (‘the decision rejecting the complaint’). Background to the dispute 2 The applicant entered into a contract as a member of the temporary staff, pursuant to [OSCURATO:PERSONA] 2(f) of the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (‘the CEOS’), to perform the duties of [OSCURATO:PERSONA] (‘FRM’) within the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], which is headed by the FRO. The contract was concluded for a period of five years, with a probationary period of nine months expiring on 15 July 2023. 3 [OSCURATO:PERSONA] 2022, the applicant was assigned to a team in which A, another FRM, worked. 4 On 18 April 2023, the applicant participated in a mission to the [OSCURATO:PERSONA] (Spain), which lasted until 29 April 2023. During that mission, the applicant was accompanied by two other FRMs, including A. 5 On 24 April 2023, the FRO and the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA] FRO’) were informed of two incidents which occurred on 20 April 2023 which raised concerns about the applicant’s conduct (‘the incidents of 20 April 2023’). 6 On 8 May 2023, a meeting took place between the applicant, the FRO and two team leaders to discuss the incidents of 20 April 2023, and in particular her conduct and her ability to work in a team. That meeting was preceded, between 27 April and 2 May, by email exchanges between the FRO and the applicant setting out the reasons for the meeting and informing her that, until further notice, she could no longer be assigned to other missions. At that meeting, the FRO asked the applicant to state her views on the incidents of 20 April 2023. 7 Between 10 and 12 May 2023, further emails were exchanged between the FRO and the applicant, in which the FRO provided additional details regarding the incidents of 20 April 2023, at the applicant’s request. The applicant subsequently submitted written comments on those incidents. 8 On 12 May 2023, the FRO informed the applicant that he had decided to withdraw the delegation which he had granted to her team leader, B, to perform the duties of reporting officer and informed her that he would be resuming his role as her reporting officer. 9 On 16 May 2023, the FRO drafted the applicant’s probationary report, in which he recommended that her contract not be confirmed. The report stated that, despite the applicant’s efficiency and ability, her behaviour and conduct in the service did not meet the required standards. Consequently, the applicant had not demonstrated the necessary aptitude to have her contract confirmed at the end of the probationary period. 10 By decision of 25 May 2023, the FRO sub-delegated to the [OSCURATO:PERSONA] FRO the powers conferred by the CEOS on the [OSCURATO:PERSONA] to [OSCURATO:PERSONA] (‘the AACC’) with regard to decisions and procedures related to the probationary period when the FRO was in the role of immediate superior. 11 On 30 May 2023, the applicant submitted her comments on the probationary report. 12 By email of 31 May 2023, the FRO informed the applicant that he had sub-delegated his AACC powers to the [OSCURATO:PERSONA] FRO. 13 On 27 June 2023, the [OSCURATO:PERSONA] FRO, acting under sub-delegated powers as the competent appointing authority – understood by the [OSCURATO:PERSONA] to be the AACC – adopted the dismissal decision. 14 On 26 September 2023, the applicant lodged a complaint against the dismissal decision. 15 On 26 January 2024, the FRO adopted the decision rejecting the complaint. Forms of order sought 16 The applicant claims that the [OSCURATO:PERSONA] should: –        annul the dismissal decision; –        annul the decision rejecting the complaint; –        order [OSCURATO:PERSONA] to pay the costs. 17 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicant to pay the costs. Law 18 In support of her action, the applicant raises, in essence, eight pleas in law alleging: –        first, breach of the right to a fair trial; –        second, breach of the right to be heard; –        third, infringement of the obligation to state reasons for the dismissal decision; –        fourth, lack of competence of the FRO to adopt the probationary report; –        fifth, in essence, substantive errors of facts and a manifest error of assessment; –        sixth, in essence, illegalities vitiating the adoption of the decision rejecting the complaint; –        seventh, alleging that the statement of reasons for the decision rejecting the complaint was vitiated by illegality; –        eighth, breach of the right to impartial and fair treatment, as enshrined in [OSCURATO:PERSONA] 41 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. Subject matter of the action 19 The applicant seeks the annulment, first, of the dismissal decision and, second, of the decision rejecting the complaint. 20 It should be noted in that regard that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint, where that decision has no independent content, have the effect of bringing before the [OSCURATO:PERSONA] the act against which the complaint was submitted (see, to that effect, judgments of 17 January 1989, Vainker v Parliament , 293/87, EU:C:1989:8, paragraph 8, and of 21 September 2011, Adjemian and Others v Commission , T‑325/09 P, EU:T:2011:506, paragraph 33). 21 Any decision rejecting a complaint, whether express or implied, if it is straightforward, merely confirms the act or failure to act complained of and, when taken in isolation, does not constitute a challengeable act, so that the claims directed against that decision which has no independent content in relation to the initial decision must be regarded as being directed against the initial act (judgment of 12 September 2019, XI v Commission , T‑528/18, not published, EU:T:2019:594, paragraph 20). 22 However, it is clear from the case-law that an applicant must be able to seek a review by the EU Courts of the legality of the decision rejecting his or her complaint where he or she raises a plea relating specifically to the complaint procedure. The claimant’s interest in the proper conduct of the complaint procedure and, therefore, in the annulment of the decision rejecting his or her complaint in the event of irregularity, must be assessed independently and not in relation to any action brought against the initial act, which is the subject of the complaint. If the applicant were, in such a situation, entitled to challenge only the original decision, any possibility of a challenge concerning the pre-litigation procedure would be excluded, thus depriving him or her of the benefit of a procedure which seeks to permit and encourage an amicable settlement to the dispute which has arisen between the servant and the administration and to require the authority to which that servant reports to reconsider its decision, in compliance with the rules, in the light of any objections which that servant may make (see, to that effect, judgment of 29 May 2024, [OSCURATO:PERSONA] v Council , T‑766/22, EU:T:2024:336, paragraph 31 and the case-law cited). 23 In the present case, it should be noted that even though the decision rejecting the complaint lacks any independent content since it merely confirms the dismissal decision and sets out its reasoning, by her sixth plea, the applicant alleges that the complaint procedure was vitiated by illegality. 24 An applicant must be able to seek a review by the EU Courts of the legality of the decision rejecting the complaint, in accordance with the case-law cited in paragraph 22 above, and not only that of the dismissal decision. Accordingly, it is necessary to rule on the application for annulment of the decision rejecting the complaint. [OSCURATO:PERSONA] claim for the annulment of the decision rejecting the complaint 25 In so far as the sixth plea alleges, in essence, that the decision rejecting the complaint was vitiated by illegality, it is appropriate to examine the proper conduct of the pre-litigation procedure. 26 The sixth plea is divided into two parts. The first part alleges, in essence, that the FRO had a conflict of interests when the decision rejecting the complaint was adopted; the second part alleges that the FRO lacked competence to adopt that decision. The second part of the plea must be examined first, in so far as it relates to the competence of the person who adopted the decision rejecting the complaint. 27 In support of the second part of the sixth plea, the applicant claims that the FRO lacked the competence to adopt the decision rejecting the complaint since, by the decision of 25 May 2023, he had sub-delegated his AACC powers to the [OSCURATO:PERSONA] FRO with regard to the decisions and procedures related to the probationary period involving the FRO in the role of immediate superior. The applicant submits that, since that sub-delegation had not been withdrawn, it continued to have effect on the date of the decision rejecting the complaint. Consequently, that decision was adopted in breach of the rules of competence, thus affecting the proper conduct of the pre-litigation procedure. 28 [OSCURATO:PERSONA] disputes the applicant’s arguments. It submits that, in the present case, the sub-delegation of the AACC’s powers to the [OSCURATO:PERSONA] FRO, which was authorised under [OSCURATO:PERSONA] 5(6) of Decision 25/2021 of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] of 9 April 2021 delegating the powers conferred by the [OSCURATO:PERSONA] on the appointing authority and by the CEOS to the AACC (‘the [OSCURATO:PERSONA] decision of 9 April 2021’) and was implemented by the decision of 25 May 2023, was limited to the competence to decide whether or not to confirm the applicant’s employment contract and, therefore, to the adoption of the dismissal decision, to the exclusion of the probationary report and the decision rejecting the complaint. Consequently, according to [OSCURATO:PERSONA], the FRO remained the authority competent to address any complaint lodged by the applicant. 29 It follows from the case-law that the principle of good administration requires, inter alia, the division of powers in staff management to be clearly defined and duly published (see judgment of 26 June 2024, Paraskevaidis v Council and Commission , T‑698/21, EU:T:2024:425, paragraph 48 and the case-law cited). 30 In addition, a delegation of power constitutes an act which deprives the delegating authority of the power delegated and therefore has the effect of causing a transfer of powers, which, a priori, prohibits the delegating authority from referring to the transferred power, without rendering its decision invalid on the ground of a lack of competence (judgments of 22 [OSCURATO:PERSONA] 2018, Janssen-Cases v Commission , T‑688/16, EU:T:2018:822, paragraph 31, and of 26 June 2024, Paraskevaidis v Council and Commission , T‑698/21, EU:T:2024:425, paragraph 45). 31 [OSCURATO:PERSONA] 6 of the CEOS, each institution and agency is to determine the powers conferred to conclude the contracts of employment referred to in [OSCURATO:PERSONA] 1 of the CEOS, that is to say, inter alia, the contracts of temporary staff. 32 Pursuant, inter alia, to [OSCURATO:PERSONA] 6 of the CEOS, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] adopted the [OSCURATO:PERSONA] decision of 9 April 2021. It is apparent from [OSCURATO:PERSONA] 3(3) of that decision that the powers conferred on the AACC by the CEOS are delegated to the FRO in respect of FRMs and other members of the FRO’s staff, except the power of reclassification. In accordance with [OSCURATO:PERSONA] 5(6) of that decision, which makes applicable mutatis mutandis to the FRO the option, conferred by [OSCURATO:PERSONA] 5(1) of that decision on the [OSCURATO:PERSONA], to sub-delegate his or her powers, the FRO may sub-delegate his or her own powers, in respect of his or her staff, to a member of his or her temporary staff by reference to appropriate criteria, such as function group, position and job assignment held in [OSCURATO:PERSONA]. 33 The FRO made use of the power thus conferred on him to sub-delegate some of his AACC powers by adopting the decision of 25 May 2023, on the basis of [OSCURATO:PERSONA] 3 and [OSCURATO:PERSONA] 5(1) and (6) of the [OSCURATO:PERSONA] decision of 9 April 2021. Recital 1 of the decision of 25 May 2023 recalls that the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] has delegated certain powers conferred upon the AACC by the CEOS to the FRO. Recital 4 adds that, in view of the transparency and objectivity of decision-making processes related to the assessment of the probationary period, the powers conferred on the AACC to take decisions concerning staff in regard to whom the FRO has taken a position in a role of immediate superior should be sub-delegated to the [OSCURATO:PERSONA] FRO. [OSCURATO:PERSONA] 1 of the decision of 25 May 2023 thus provides that the powers conferred by the CEOS on the AACC, with regard to decisions and procedures related to the probationary period, involving the FRO acting in the capacity of the immediate superior, are hereby sub-delegated to the [OSCURATO:PERSONA] FRO. 34 It should be borne in mind that, in the present case, after informing the applicant, on 12 May 2023, of the withdrawal of the delegation he claimed to have given to her team leader to perform the duties of reporting officer, the FRO himself drew up the probationary report, thus performing the duties normally assigned to the applicant’s immediate superior. 35 On 27 June 2023, in accordance with the sub-delegation of the capacity of AACC conferred on him by the decision of 25 May 2023, the [OSCURATO:PERSONA] FRO adopted the dismissal decision. 36 [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’), applicable by analogy by virtue of [OSCURATO:PERSONA] 46 of the CEOS, a complaint against an act affecting an official is to be lodged with the authority exercising the powers of the AACC, namely, in the present case, the [OSCURATO:PERSONA] FRO, in accordance with the decision of 25 May 2023. It follows that, contrary to what is claimed by [OSCURATO:PERSONA], the FRO lacked the competence to adopt the decision rejecting the complaint. 37 [OSCURATO:PERSONA] cannot argue that the scope of the sub-delegation of powers was limited to the dismissal decision, to the exclusion, in particular, of the decision rejecting the complaint. It follows from the very wording of [OSCURATO:PERSONA] 1 of the decision of 25 May 2023 that the sub-delegation conferred on the [OSCURATO:PERSONA] FRO applies to decisions and procedures related to the probationary period, thus designating not only dismissal decisions adopted at the end of such a period, but also other decisions relating to the same period, including decisions rejecting a complaint against a dismissal decision. In the present case, it should be borne in mind that the rejected complaint was directed against the dismissal decision adopted at the end of the probationary period. 38 The case-law nevertheless accepts that the delegating authority may exercise the power again, while noting that the principle of legal certainty, which underpins the formal nature of operations involving the delegation of power, requires that it first adopt an act by virtue of which it recovers the delegated power. Accordingly, just as a delegation of powers requires the adoption of an express act transferring the power concerned, the recall of the delegated powers must also be made by means of the adoption of an express act (see judgment of 26 June 2024, Paraskevaidis v Council and Commission , T‑698/21, EU:T:2024:425, paragraph 47 and the case-law cited). 39 In the present case, it should be noted that, although [OSCURATO:PERSONA] 1 of the decision of 25 May 2023 sub-delegates the FRO’s AACC powers to the [OSCURATO:PERSONA] FRO with regard to the procedures related to the probationary period in which the FRO acts in the capacity of the immediate superior, there is no provision providing for the latter’s right to recover the powers previously delegated or the circumstances in which that right was conferred on him or her. 40 It follows that the decision rejecting the complaint is vitiated by a lack of competence and must be annulled. 41 Consequently, the second part of the sixth plea must be upheld and the decision rejecting the complaint must be set aside, without it being necessary to examine the other pleas and arguments put forward by the applicant. The claim for the annulment directed against the dismissal decision 42 As is apparent from paragraphs 36 to 41 above, the decision rejecting the complaint was adopted by an authority lacking competence and must, consequently, be annulled. 43 Nonetheless, the annulment of the decision rejecting the complaint, establishing the final position of the AACC on conclusion of the pre-litigation procedure, has no impact on the lawfulness of the dismissal decision, since, in order for the [OSCURATO:PERSONA] to be able to examine the lawfulness of that decision in the framework of an action under [OSCURATO:PERSONA] 270 [OSCURATO:PERSONA], that initial decision, adopted on the basis of the fourth subparagraph of [OSCURATO:PERSONA] 14(3) of the CEOS, must have been the subject of a proper pre-litigation procedure in the light of the requirements of [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA]. However, following the annulment of the decision rejecting the complaint, the dismissal decision did not involve re-examination by the AACC under the pre-litigation procedure provided for by the [OSCURATO:PERSONA] (see, to that effect, judgment of 16 May 2017, CW v Parliament , T‑742/16 RENV, not published, EU:T:2017:338, paragraph 58). 44 As a result of the annulment of the decision rejecting the complaint, the dismissal decision must be the subject of a proper pre-litigation procedure. Consequently, that annulment means that, under [OSCURATO:PERSONA] 266 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 46 of the CEOS and [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA], the AACC is to rule again on the complaint within three months of the date of delivery of the present judgment (see, to that effect, judgment of 16 May 2017, CW v Parliament , T‑742/16 RENV, not published, EU:T:2017:338, paragraph 60 and the case-law cited). 45 In the light of the foregoing, the claims directed against the dismissal decision are premature, since that decision cannot be subject to review by the [OSCURATO:PERSONA] unless it has first been re-examined in the context of a properly conducted pre-litigation procedure. 46 Consequently, the claim for the annulment of the dismissal decision taken by [OSCURATO:PERSONA] FRO must be rejected as inadmissible, without it being necessary to rule on the inadmissibility of the annexes, raised by the applicant. Costs 47 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure of the [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 48 [OSCURATO:PERSONA] has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Annuls the decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 26 January 2024 rejecting DV’s complaint against [OSCURATO:PERSONA] decision of 27 June 2023; 2. Rejects as inadmissible the application for annulment of the decision of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] of 27 June 2023; 3. [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA] Perišin Delivered in open court in Luxembourg on 17 June 2026. V. [OSCURATO:PERSONA] S. [OSCURATO:PERSONA] * Language of the case: English.