Judgment of the Court (First Chamber) of 17 November 1976. - John Mills v European Investment Bank. - Case 110-75.



European Court reports 1976 Page 01613

Portuguese special edition Page 00653



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - ACTIONS INVOLVING THE EUROPEAN INVESTMENT BANK - REDUCTION OF STAFF - LAWFULNESS - CONDITIONS

( STAFF REGULATIONS OF THE BANK , ARTICLE 16 )

2 . OFFICIALS - REDUCTION OF STAFF - CRITERIA - MERITS OF THE PERSONS CONCERNED - PRIMARY CONSIDERATION - DISGUISED DISCIPLINARY MEASURE - ABSENCE

Summary

1 . A DEPARTMENTAL REORGANIZATION INVOLVING A REDUCTION OF STAFF IS NOT CONTRARY TO THE TENOR OF THE CONDITIONS OF EMPLOYMENT LAID DOWN BY THE BANK AND CONFIRMED BY ITS STAFF REGULATIONS , THE THIRD PARAGRAPH OF ARTICLE 16 OF WHICH PROVIDES : ' CONTRACTS FOR AN INDEFINITE PERIOD MAY BE TERMINATED BY DUE NOTICE GIVEN BY ONE PARTY TO THE OTHER ' .

2 . THE GENERAL PRACTICE , WHERE THERE IS A REDUCTION OF STAFF , OF BEGINNING , ALL THINGS BEING EQUAL , WITH SINGLE PERSONS AND THOSE MOST RECENTLY APPOINTED , DOES NOT PREVENT THE MERITS OF THE PERSONS CONCERNED AND THEIR CONDUCT IN THE DEPARTMENT FROM BEING PRIMARILY TAKEN INTO ACCOUNT . TAKING ACCOUNT OF SUCH CRITERIA CANNOT IN ITSELF CONSTITUTE A DISGUISED DISCIPLINARY MEASURE .

Parties

IN CASE 110/75

JOHN MILLS , RESIDING AT 43 AVENUE DU BOIS , LUXEMBOURG , REPRESENTED BY CYR CAMBIER , ADVOCATE AT THE COUR D ' APPEL , BRUSSELS , 22 RUE J . B . MEUNIER , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL , ADVOCATE , 18 A RUE DES GLACIS ,

APPLICANT ,

V EUROPEAN INVESTMENT BANK , REPRESENTED BY THE DIRECTOR OF ITS DIRECTORATE FOR LEGAL AFFAIRS , J . NICOLAAS VAN DEN HOUTEN , ACTING AS AGENT , HAVING BEEN APPOINTED FOR THAT PURPOSE BY THE PRESIDENT OF THE EUROPEAN INVESTMENT BANK , AND ASSISTED BY ALEX BONN , ADVOCATE OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BONN , 22 COTE D ' EICH ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION , CONTAINED IN THE LETTER OF 29 JULY 1975 , TO TERMINATE THE EMPLOYMENT OF THE APPLICANT AT THE EUROPEAN INVESTMENT BANK ,

Grounds

1 BY AN APPLICATION OF 17 OCTOBER 1975 THE APPLICANT CLAIMED THAT THE MEASURE ADOPTED BY THE EUROPEAN INVESTMENT BANK AND CONTAINED IN A LETTER DATED 29 JULY 1975 RECEIVED ON THE 30 OF THE SAME MONTH TERMINATING HIS EMPLOYMENT AS A TRANSLATOR AS FROM 31 OCTOBER 1975 SHOULD BE ANNULLED AND FURTHER THAT HE SHOULD BE REINSTATED .

2 ALTERNATIVELY HE CLAIMS THAT THE DEFENDANT BE ORDERED TO PAY , IN ADDITION TO THE COMPENSATION PROVIDED FOR BY ARTICLE 16 OF THE STAFF REGULATIONS OF THE BANK , FB 3 081 020 AS COMPENSATION FOR WRONGFULLY BREAKING THE CONTRACT OF EMPLOYMENT .

CLAIM FOR ANNULMENT AND REINSTATEMENT

3 FIRST THE APPLICANT CLAIMS THAT HIS CONTRACT OF EMPLOYMENT WAS TERMINATED CONTRARY TO ARTICLES 38 TO 40 OF THE STAFF REGULATIONS , THESE BEING PROVISIONS GOVERNING THE DISCIPLINARY PROCEDURE TO BE FOLLOWED IN RESPECT OF STAFF WHO FAIL TO FULFIL THEIR OBLIGATIONS .

4 WHILST THE CONTESTED MEASURE GIVES AS THE APPARENT REASON THE NECESSITY FOR AN INTERNAL REORGANIZATION OF THE BANK , THE APPLICANT ALLEGES THAT IT IS IN FACT A DISGUISED DISCIPLINARY MEASURE WHICH COULD NOT BE ADOPTED IN DISREGARD OF THE ABOVEMENTIONED ARTICLES .

5 THE DEFENDANT HAS STATED THAT AT THE TIME OF THE ACCESSION OF THE NEW MEMBER STATES TO THE EEC IT HAD SET UP A TEAM OF FIVE TRANSLATORS TRANSLATING INTO ENGLISH BUT THE VOLUME OF TRANSLATIONS INTO ENGLISH WAS LESS THAN HAD BEEN FORESEEN WITH THE RESULT THAT THE WORK OF THE SECTION , ESPECIALLY FROM 1975 ONWARDS , HAD CONSIDERABLY DECREASED .

6 THE OUTPUT PER PERSON PER DAY FELL FROM 2.56 PAGES DURING THE LAST NINE MONTHS OF 1973 TO A MERE 1.52 PAGES DURING THE FIRST TEN MONTHS OF 1975 .

7 ALL THE KNOWN FACTORS INDICATED THAT THE REDUCED LEVEL OF WORK WOULD CONTINUE FOR A LONG TIME TO COME .

8 THESE FACTS , WHICH HAVE NOT BEEN BASICALLY CONTESTED , WERE SUCH AS TO JUSTIFY THE REDUCTION IN THE ENGLISH TRANSLATING SECTION .

9 SUCH A MEASURE WAS NOT CONTRARY TO THE TENOR OF THE CONDITIONS OF EMPLOYMENT LAID DOWN BY THE BANK AND CONFIRMED BY ITS STAFF REGULATIONS WHICH PROVIDE IN THE THIRD PARAGRAPH OF ARTICLE 16 THAT ' CONTRACTS FOR AN INDEFINITE PERIOD MAY BE TERMINATED BY DUE NOTICE GIVEN BY ONE PARTY TO THE OTHER ' .

10 THESE CONDITIONS HAVE NOT BEEN ALTERED EITHER GENERALLY OR WITH REGARD TO THE APPLICANT BY THE FACT THAT DURING THE PERIOD OF UNCERTAINTY DUE TO THE REFERENDUM IN THE UNITED KINGDOM THE DEFENDANT FORMALLY REASSURED ITS BRITISH STAFF THAT , IN THE EVENT OF A RESULT IN FAVOUR OF THE WITHDRAWAL OF THE UNITED KINGDOM , THE STAFF WOULD NOT BE DISMISSED .

11 IN PRINCIPLE THE MEASURE TAKEN TO REDUCE THE ENGLISH TRANSLATION SECTION WAS THEREFORE JUSTIFIED AND CAPABLE OF PROVIDING A LEGITIMATE BASIS FOR TERMINATING THE CONTRACT .

12 IT IS HOWEVER COMMON GROUND THAT THE APPLICANT WAS NOT THE JUNIOR IN THE SECTION IN AGE OR SENIORITY AND THAT THE DEFENDANT HAD CHOSEN HIM BECAUSE , AS COMPARED TO HIS COLLEAGUES , HIS SERVICES , HIS RELATIONS WITH HIS SUPERIORS AND HIS GENERAL BEHAVIOUR IN THE OPINION OF THE BANK LEFT SOMETHING TO BE DESIRED .

13 FOR THESE REASONS THE APPLICANT CONSIDERS THE TERMINATION IN QUESTION AS A DISGUISED DISCIPLINARY MEASURE AND VITIATED FOR MISUSE OF PROCEDURE IF NOT OF POWERS .

14 ALTHOUGH IT IS GENERAL PRACTICE , WHERE THERE IS A REDUCTION OF STAFF , TO BEGIN , ALL THINGS BEING EQUAL , WITH SINGLE PERSONS AND THOSE MOST RECENTLY APPOINTED , THIS PRACTICE DOES NOT PREVENT THE MERITS OF THE PERSONS CONCERNED AND THEIR CONDUCT IN THE DEPARTMENT FROM BEING PRIMARILY TAKEN INTO ACCOUNT .

15 TAKING ACCOUNT OF SUCH CRITERIA CANNOT IN ITSELF CONSTITUTE A DISGUISED DISCIPLINARY MEASURE .

16 IT CLEARLY APPEARS FROM THE FACTS PRODUCED BY BOTH PARTIES THAT THE APPLICANT ' S RELATIONS WITH THE TWO REVISERS IN THE SECTION AND IN PARTICULAR WITH MR T . WERE DIFFICULT BY REASONS OF MR T . ' S PERSONALITY AS WELL AS THAT OF THE APPLICANT .

17 THE APPLICANT WHO CONSIDERED HIMSELF IN EVERY RESPECT AS PLACED ON AN EQUAL FOOTING WITH HIS COLLEAGUES IN THE SECTION TOOK BADLY THE OBSERVATIONS MADE ON HIS WORK BY THE REVISERS AND THE ORGANIZATIONAL MEASURES TAKEN IN THE DEPARTMENT BY MR T . AS UNOFFICIAL HEAD OF THE SECTION .

18 THE MANAGEMENT OF THE BANK WHICH HAD TRIED UNSUCCESSFULLY TO RESOLVE THESE DIFFICULTIES WAS ENTITLED IN THE CIRCUMSTANCES TO CONSIDER THAT IF IT WAS NECESSARY IN ANY EVENT TO PART WITH ONE MEMBER OF THE ENGLISH SECTION , IT WAS THE APPLICANT ' S CONTRACT WHICH SHOULD BE TERMINATED .

19 THE DEFENDANT WAS THEREFORE ENTITLED TO ADOPT THE CONTESTED MEASURE WITHOUT BEING GUILTY OF A MISUSE OF PROCEDURE OR POWERS AND THE CLAIM FOR ANNULMENT AND REINSTATEMENT IS UNFOUNDED .

CLAIM FOR COMPENSATION

20 THE APPLICANT CLAIMS IN THE ALTERNATIVE THAT THE DEFENDANT SHOULD BE ORDERED TO PAY HIM COMPENSATION OF FB 3 081 020 , THAT IS TO SAY , FB 3 500 000 LESS CERTAIN COMPENSATION ALREADY PAID , FOR WRONGFUL BREACH OF CONTRACT .

21 IT APPEARS FROM THE ABOVE THAT THE TERMINATION IN QUESTION CANNOT BE REGARDED AS A WRONGFUL BREACH OF CONTRACT AND THAT THE CLAIM IS THEREFORE UNFOUNDED .

22 THE APPLICATION MUST ACCORDINGLY BE DISMISSED .

Decision on costs

COSTS

23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

24 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

25 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

26 THIS RULE MUST APPLY BY ANALOGY TO THE PRESENT CASE .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .