Judgment of the Court (Second Chamber) of 12 July 1973. - Nunzio di Pillo v Commission of the European Communities. - Joined cases 10 and 47-72.



European Court reports 1973 Page 00763

Greek special edition Page 00603

Portuguese special edition Page 00297



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - RECRUITMENT - PROBATION - REPORT - DELAY IN MAKING THEREOF - VALIDITY - RESPONSIBILITY OF THE ADMINISTRATION

( STAFF REGULATIONS, ARTICLE 34 )

2 . OFFICIALS - RECRUITMENT - PROBATION - UNFAVOURABLE REPORT - DISMISSAL OF THE PERSON CONCERNED - TIME LIMIT - NATURE - COMMENCING DATE

( STAFF REGULATIONS, ARTICLE 34 )

3 . OFFICIALS - RECRUITMENT - PROBATION - UNFAVOURABLE REPORT - INTENTION TO DISMISS - NOTIFICATION TO THE PERSON CONCERNED - NO OBLIGATION

( STAFF REGULATIONS, ARTICLE 34 )

Summary

1 . A PROBATION REPORT MADE SOME MONTHS LATE IS STILL VALID BUT THE ADMINISTRATION IS RESPONSIBLE FOR THE DAMAGE RESULTING FROM THIS IRREGULARITY WHICH IS CONTRARY TO THE EXPRESS REQUIREMENTS OF THE STAFF REGULATIONS .

2 . WHEN THE PROBATION REPORT IS UNFAVOURABLE, THE ADMINISTRATION MUST TAKE ITS DECISION TO DISMISS WITHIN A REASONABLE PERIOD WHICH BEGINS TO RUN FROM THE MAKING OF THE REPORT AND ITS COMMUNICATION TO THE PERSON CONCERNED .

3 . THE COMMISSION IS UNDER AN OBLIGATION TO COMMUNICATE THE END OF PROBATION REPORT TO THE PROBATIONER SO THAT HE MAY SUBMIT HIS COMMENTS, BUT NOT TO GIVE HIM AN OPPORTUNITY TO STATE HIS VIEWS ON ITS INTENTION TO DISMISS HIM BY REASON OF THE UNFAVOURABLE NATURE OF THE REPORT, EVEN IF THIS CALLS NOT FOR AN IMMEDIATE DISMISSAL BUT FOR AN EXTENSION OF THE PROBATIONARY PERIOD . IF THE COMMISSION DOES SO, THEREBY OBSERVING THE CODE OF GOOD ADMINISTRATION, IT CAN ALLOW A VERY BRIEF PERIOD FOR A REPLY WITHOUT THE DISMISSAL BEING VITIATED .

Parties

IN JOINED CASES NOS 10 AND 47/72

NUNZIO DI PILLO, FORMER PROBATIONER OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDENT AT PIAZZA SAN ANDREA DELLA VALLE, 6, ROME, REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE BRUSSELS COURT OF APPEAL, HAVING CHOSEN HIS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34 B/IV, RUE PHILIPPE-II, APPLICANT

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4, BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE END OF PROBATION REPORT AND OF THE DECISION TO DISMISS THE APPLICANT AND FOR VARIOUS CLAIMS FOR COMPENSATION,

Grounds

1 THE APPLICATION ASKS FOR THE ANNULMENT OF THE END OF PROBATION REPORT ON THE APPLICANT, THE ANNULMENT OF THE DECISION OF 21 DECEMBER 1971, WHEREBY THE COMMISSION DISMISSED HIM AND COMPENSATION FOR THE LOSS ALLEGED TO HAVE BEEN INCURRED BY THE DISMISSAL .

COMPLAINT AS THE LATENESS OF THE END OF PROBATION REPORT

2 THE APPLICANT WAS APPOINTED A PROBATIONER ON 1 MARCH 1971 IN GRADE A 3, UNDER ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS, WHICH ALLOW FOR RECRUITMENT WITHOUT COMPETITION IN EXCEPTIONAL CASES FOR POSTS WHICH REQUIRE SPECIAL QUALIFICATIONS .

3 THE END OF PROBATION REPORT PROVIDED FOR IN ARTICLE 34 OF THE STAFF REGULATIONS SHOULD HAVE BEEN MADE ON 31 JULY 1971 AT THE LATEST UNDER THE PROVISIONS OF ARTICLE 34 AS THEY THEN STOOD .

4 THE REPORT WAS NOT HOWEVER MADE AND COMMUNICATED TO THE APPLICANT UNTIL 4 NOVEMBER .

5 WHILST IT IS TRUE THAT THIS DELAY IN MAKING THE REPORT CONSTITUTES AN IRREGULARITY HAVING REGARD TO THE EXPRESS REQUIREMENTS OF THE STAFF REGULATIONS, THIS IRREGULARITY IS NOT SUCH AS TO CALL IN QUESTION THE VALIDITY OF THE REPORT .

6 THIS COMPLAINT MUST THEREFORE BE REJECTED .

COMPLAINTS AS TO DISMISSAL

7 THE END OF PROBATION REPORT BEING UNFAVOURABLE, THE COMMISSION WAS AUTHORISED TO DISMISS THE APPLICANT UNDER ARTICLE 34 ( 2 ), FIRST PARAGRAPH, OF THE STAFF REGULATIONS .

8 THE APPLICANT MAKES THE POINT THAT THE COMMISSION, IN CASE OF DISMISSAL OF A PROBATIONER AFTER EXPIRY OF THE PROBATIONARY, PERIOD, IS OBLIGED TO TAKE THE DECISION WITHIN A REASONABLE TIME, AND THIS TIME WAS EXCEEDED IN THE PRESENT CASE .

9 WHILST THE COMMISSION IS BOUND TO TAKE ITS DECISION WITHIN A REASONABLE TIME, THIS TIME COULD NOT BEGIN TO RUN UNTIL THE END OF PROBATION REPORT WAS MADE AND COMMUNICATED TO THE PERSON CONCERNED .

10 IN THIS CASE, THE COMMENCING DATE FOR CALCULATING THE TIME BEING 4 NOVEMBER, THE DECISION, TAKEN ON 21 DECEMBER, WAS TAKEN WITHIN REASONABLE LIMITS .

11 THE APPLICANT MOREOVER ALLEGES CERTAIN IRREGULARITIES IN THE PROCEDURE FOLLOWED BY THE COMMISSION IN DECIDING HIS CASE .

12 HE CLAIMS FIRST THAT THE DECISION TO DISMISS HIM IS VITIATED BY MISUSE OF POWERS IN THAT IT WAS MOTIVATED BY THE COMMISSION' S DESIRE TO APPOINT AN OFFICIAL OF ANOTHER NATIONALITY TO THE POST HE HELD .

13 THE APPLICANT HAS NOT HOWEVER EVEN BEGUN TO PROVE THAT THIS WAS SO .

14 THE APPLICANT IN ADDITION MAKES THE POINT THAT THE COMMISSION DID NOT ALLOW HIM SUFFICIENT TIME TO SUBMIT HIS COMMENTS AT THE TIME OF THE LETTER WHEREBY IT MADE KNOWN TO HIM ITS INTENTION TO DISMISS HIM .

15 ON THIS POINT IT IS ESTABLISHED THAT THIS LETTER DATED 7 DECEMBER, INVITING THE APPLICANT TO SUBMIT HIS COMMENTS TO THE COMMISSION BY 15 DECEMBER 1971 AT THE LATEST, DID NOT REACH HIM UNTIL 13 DECEMBER .

16 IT FOLLOWS FROM ARTICLE 34 OF THE STAFF REGULATIONS THAT THE COMMISSION HAS TO COMMUNICATE THE END OF PROBATION REPORT TO THE PROBATIONER CONCERNED SO THAT HE CAN FORMULATE HIS OBSERVATIONS, BUT IT IS NOT BOUND TO GIVE HIM ALSO AN OPPORTUNITY TO STATE HIS VIEWS ON THE INTENTION TO DISMISS HIM AS A RESULT OF THE UNFAVOURABLE NATURE OF THE REPORT, EVEN IF THIS CALLS, AS IN THE PRESENT CASE, NOT FOR AN IMMEDIATE DISMISSAL BUT FOR AN EXTENSION OF THE PROBATIONARY PERIOD .

17 IF, IN SUCH CIRCUMSTANCES, THE COMMISSION NEVERTHELESS INVITES THE PROBATIONER TO SUBMIT HIS COMMENTS, THEREBY OBSERVING THE CODE OF GOOD PERSONNEL ADMINISTRATION, THE FACT OF GIVING HIM ONLY A VERY BRIEF PERIOD TO REPLY CANNOT VITIATE THE DISMISSAL .

18 THE COMPLAINTS AS TO DISMISSAL MUST THEREFORE BE REJECTED .

CLAIM FOR DAMAGES

19 THE APPLICANT MAKES THE POINT THAT THE IRREGULARITY AND LATENESS OF THE COMMISSION' S ACTS INVOLVED HIM IN LOSSES FOR WHICH THE COMMISSION SHOULD COMPENSATE HIM .

20 THE LOSSES WHICH THE APPLICANT CLAIMS TO HAVE SUFFERED ARE DUE TO CERTAIN MEASURES HE HIMSELF TOOK IN ANTICIPATION OF A DEFINITE APPOINTMENT TO THE POST HE HELD AS A PROBATIONER .

21 SINCE, HOWEVER, THE APPLICANT, IN SPITE OF THE EXTENSION OF HIS PROBATIONARY PERIOD, HAD NO DEFINITE EXPECTATION OF AN APPOINTMENT, THE MEASURES HE TOOK WERE AT HIS OWN RISK .

22 HENCE NO RESPONSIBILITY CAN FALL ON THE COMMISSION .

23 NEVERTHELESS THE DELAY ESTABLISHED IN MAKING THE END OF PROBATION REPORT CONSIDERABLY PROLONGED THE STATE OF UNCERTAINTY IN WHICH THE APPLICANT WAS PLACED AFTER THE EXPIRY, AT THE END OF AUGUST 1971, OF THE PROBATIONARY PERIOD FIXED BY THE STAFF REGULATIONS, AND THIS PREVENTED HIS LOOKING AFTER HIS INTERESTS ADEQUATELY, PARTICULARLY AS TO HIS CAREER AND HIS POSITION GENERALLY .

24 THIS DELAY BEING CONTRARY TO THE PROVISIONS OF THE STAFF REGULATIONS THE COMMISSION IS LIABLE WITHIN THE FRAMEWORK THEREOF .

25 IT IS THEREFORE RIGHT TO REQUIRE THE COMMISSION TO PAY THE APPLICANT COMPENSATION, WHICH, HAVING REGARD TO THE POST HE OCCUPIED, MAY FAIRLY BE DETERMINED AT BF 200 000 .

Decision on costs

26 UNDER ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE, WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

27 THE COMMISSION HAS FAILED IN SOME OF ITS PLEAS .

28 IT IS THEREFORE RIGHT TO REQUIRE IT TO PAY A PART OF THE APPLICANT' S COSTS, ESTIMATED AT 50 PER CENT .

29 MOREOVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY THE INSTITUTIONS IN APPLICATIONS BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THE INSTITUTIONS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY MR NUNZIO DI PILLO A SUM OF FB 200 000 .

2 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO BEAR ITS OWN COSTS AND HALF THE APPLICANT' S COSTS .