Judgment of the Court (Second Chamber) of 12 May 1971. - Joseph Nagels v Commission of the European Communities. - Case 52-70.



European Court reports 1971 Page 00365

Danish special edition Page 00077

Greek special edition Page 00777

Portuguese special edition Page 00119



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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OFFICIALS - RECRUITMENT - PROBATIONARY PERIOD - TASKS WHICH DO NOT CONSTITUTE THE EXTENSION OF THE WORK LISTED IN THE VACANCY NOTICE BUT WHICH RELATE TO THE SUBJECT-MATTER REFERRED TO IN THE NOTICE - VALIDITY OF THE PROBATIONARY PERIOD

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 34 )

Summary

THE FACT THAT IN THE ACTUAL ARRANGEMENT OF THE DUTIES ATTACHING TO THE POST OF A PROBATIONER, TASKS WHICH DID NOT CONSTITUTE THE DIRECT AND NECESSARY EXTENSION OF THE WORK LISTED IN THE VACANCY NOTICE RELATING TO THE POST IN QUESTION WERE ENTRUSTED TO HIM CANNOT INVALIDATE THE PROBATIONARY PERIOD WHERE THOSE TASKS RELATE TO THE SUBJECT-MATTER REFERRED TO IN THE VACANCY NOTICE .

Parties

IN CASE 52/70

JOSEPH NAGELS, A FORMER PROBATIONARY OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY H . ROLIN, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, AND SUBSEQUENTLY BY M . SLUSNY, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, AND BY B . FABRY, ADVOCATE, 92 AVENUE H.-JASPAR, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, ADVOCATE, 34 B/4 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 OFFICES OF ITS LEGAL ADVISER, E . REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF A DECISION TO DISMISS THE APPLICANT MADE ON 11 FEBRUARY 1970,

Grounds

1 BY APPLICATION LODGED ON 24 AUGUST 1970, THE APPLICANT HAS REQUESTED THE ANNULMENT OF THE DECISION TO DISMISS HIM OF WHICH THE COMMISSION NOTIFIED HIM ON 16 FEBRUARY 1970 .

I - THE COMPLAINTS CONCERNING THE VALIDITY OF THE PROBATIONARY PERIOD

2 THE APPLICANT COMPLAINS THAT THE COMMISSION DID NOT ENABLE HIM TO SHOW DURING THE PROBATIONARY PERIOD THAT HE POSSESSED THE NECESSARY ABILITY FOR THE POST TO WHICH HE HAD BEEN APPOINTED, IN ACCORDANCE WITH ARTICLE 34 OF THE STAFF REGULATIONS OF OFFICIALS .

3 IN FACT, DURING HIS PROBATIONARY PERIOD, THE APPLICANT CLAIMS HE WAS ENTRUSTED ESSENTIALLY WITH OFFICE WORK, ALTHOUGH THE VACANCY NOTICE RELATING TO THE POST IN QUESTION EMPHASIZED THE TECHNICAL AND PRACTICAL ASPECTS OF THE DUTIES INVOLVED THEREIN .

4 THE VACANCY NOTICE RELATING TO THE POST IN QUESTION PROVIDED AS FOLLOWS :

" NATURE OF THE DUTIES : PRINCIPAL ADMINISTRATIVE ASSISTANT PERFORMING, WITHIN THE CONTEXT OF GENERAL INSTRUCTIONS, PARTICULARLY DIFFICULT AND COMPLEX OFFICE WORK CONCERNING ( DUTCH VERSION : " NAMELY " ):

- THE TESTING OF SPECIES AND VARIETIES OF AGRICULTURAL AND HORTICULTURAL PLANTS;

- THE ARRANGEMENT, FOR THE PURPOSES OF COMPARISON, FIELDS OF THOSE PLANTS;

- CARRYING OUT THE INSPECTION OF THOSE FIELDS .

NECESSARY QUALIFICATIONS :

- SECONDARY SCHOOL LEVEL EDUCATION EVIDENCED BY A CERTIFICATE OR AN EQUIVALENT LEVEL OF EXPERIENCE;

- KNOWLEDGE OF PLANT BIOLOGY;

- THOROUGH KNOWLEDGE OF METHODS OF TESTING AND SAMPLING SEEDS AND PLANTS;

- EXPERIENCE IN THE SPHERES OF SEEDS AND PLANTS . "

5 ALTHOUGH THE WAY IN WHICH THAT NOTICE DESCRIBED THE DUTIES INVOLVED IN THE APPLICANT' S POST ( IN PARTICULAR IN THE DUTCH VERSION THEREOF WHICH IS HIS MOTHER TONGUE ) AND ABOVE ALL THE NECESSARY QUALIFICATIONS MIGHT GIVE THE IMPRESSION THAT THE OFFICE WORK WAS SUPPOSED TO BE CLOSELY CONNECTED WITH THE PRACTICAL WORK RELATING TO ACTUAL EXPERIMENTS, IT IS DIFFICULT TO BELIEVE THAT THE APPLICANT, WHO HAD HAD SEVERAL CONTACTS WITH THE BRANCH IN QUESTION BEFORE HE SUBMITTED HIS APPLICATION FOR THE POST, HAD BEEN UNABLE TO FORM QUITE AN ACCURATE IDEA OF WHAT HE COULD EXPECT IN THE POST IN QUESTION .

6 THE FIRST REPORT AT THE END OF THE PROBATIONARY PERIOD DATED 30 JULY 1969 STATED THAT MR NAGELS " KNOWS HIS SUBJECT WELL " BUT POINTED OUT INADEQUACIES IN PARTICULAR AS REGARDS HIS ABILITY TO DRAFT SATISFACTORY REPORTS RELATING TO WORKING SESSIONS AND TO FIELD VISITS IN WHICH HE HAD TO TAKE PART AND TO DISTINGUISH BETWEEN THE ESSENTIAL FEATURES AND THE MINOR DETAILS .

7 IN HIS OBSERVATIONS ON THAT REPORT, THE APPLICANT STRESSED THE TECHNICAL NATURE OF HIS TRAINING, AND WHILST HE CONSIDERED THAT THE ASSESSMENT OF HIS ABILITY TO FULFIL THE REQUIREMENTS OF A POST IN B1, WHICH WAS AS A WHOLE UNFAVOURABLE, WAS UNJUSTIFIED, HE ACKNOWLEDGED THAT THE CRITICISMS OF HIS DRAFTING AND INTERPRETATION OF WRITTEN DOCUMENTS WERE WELL FOUNDED .

8 THE PROBATION REPORT OF 1 NOVEMBER 1969 CONFIRMED THE PREVIOUS REPORT .

9 THE NOTE ATTACHED TO THE PROBATION REPORT OF 19 JANUARY 1970 SPECIFIED ALL THE TASKS WITH WHICH THE APPLICANT HAD BEEN ENTRUSTED FROM THE BEGINNING OF DECEMBER 1969 AND GAVE AN UNFAVOURABLE APPRAISAL OF THE RESULTS OF THE WORK WHICH MR NAGELS HAD PERFORMED IN THIS RESPECT .

10 IN HIS OBSERVATIONS OF 27 JANUARY 1970, MR NAGELS, WHILST COMPLAINING THAT HIS ACTUAL WORK FELL INTO A CONTEXT WHICH WAS MORE LEGAL THAN TECHNICAL AND THAT 75 PER CENT THEREOF FELL OUTSIDE THE DESCRIPTION OF " TEST FIELDS " AND ALTHOUGH HE STATED THAT HE ENTIRELY REJECTED THE FINDINGS OF THAT REPORT, ACKNOWLEDGED THAT HE STILL NEEDED SOME TIME, ON THE ONE HAND TO FAMILIARIZE HIMSELF WITH THE MANY ASPECTS OF THE WORK WHICH WERE NOT STRICTLY TECHNICAL AND PRACTICAL WHICH WERE REQUIRED OF HIM AND IN WHICH HE HAD NO EXPERIENCE AND ON THE OTHER, " TO REACH THE EUROPEAN STANDARD " IN THE PERFORMANCE OF THE ADMINISTRATIVE WORK WHICH WAS MORE STRICTLY LINKED TO THE PRACTICAL FIELD EXPERIMENTS .

11 IT EMERGES FROM THE FILE THAT THE COMMISSION ENTRUSTED THE APPLICANT INTER ALIA WITH TECHNICAL TASKS CORRESPONDING TO HIS TRAINING AND SPECIFIC OCCUPATIONAL EXPERIENCE, ALTHOUGH TO A LESSER EXTENT THAN THE APPLICANT MIGHT HAVE EXPECTED .

12 THE ASSESSMENT OF THE PROBATION REPORTS AS REGARDS THE TECHNICAL ABILITIES OF THE APPLICANT IN HIS SPECIFIC SUBJECT IS FAVOURABLE .

13 IT APPEARS THEREFORE THAT THE COMMISSION GAVE THE APPLICANT THE OPPORTUNITY TO SHOW HIS TECHNICAL ABILITIES .

14 THE FACT THAT IN THE ACTUAL ARRANGEMENT OF THE DUTIES ATTACHING TO THE POST IN QUESTION OFFICE WORK SUCH AS THE WRITING OF MINUTES OF MEETINGS WHICH DID NOT CONSTITUTE THE DIRECT AND NECESSARY EXTENSION OF FIELD WORK WAS GIVEN TO THE APPLICANT CANNOT INVALIDATE HIS PROBATIONARY PERIOD SINCE THOSE TASKS RELATE TO THE SUBJECT-MATTER REFERRED TO IN THE VACANCY NOTICE .

15 MOREOVER, THE APPLICANT, IN SPITE OF HIS RECOGNIZED COMPETENCE IN HIS OWN TECHNICAL SPECIALITY, ALSO REVEALED SOME INADEQUACIES IN PERFORMING OFFICE DUTIES WHICH WERE VERY CLOSELY LINKED TO HIS PRACTICAL FIELD WORK .

16 BY TWICE EXTENDING THE NORMAL PROBATIONARY PERIOD OF THE APPLICANT, THE DEFENDANT SHOWED UNDERSTANDING TOWARDS MR NAGELS BY GIVING HIM TIME TO BECOME ACCUSTOMED TO HIS OFFICE DUTIES, FOR WHICH HE ADMITTED THAT HE WAS NOT APPROPRIATELY TRAINED .

17 DURING THAT PERIOD, SEVERAL TASKS WERE ENTRUSTED TO THE APPLICANT WHO WAS PUT IN A POSITION TO SHOW HIS CAPACITY TO ADAPT HIMSELF TO HIS NEW DUTIES .

18 THE FACT THAT THE TIME THUS AVAILABLE TO THE APPLICANT WAS NOT SUFFICIENT, AS HE HIMSELF ADMITS, FOR HIM TO REACH A STANDARD COMPATIBLE WITH HIS POST, CANNOT INVALIDATE THE REGULARITY OF THE PROBATION PERIOD IN QUESTION .

19 IN THESE CIRCUMSTANCES, THE ABOVEMENTIONED COMPLAINT IS UNFOUNDED .

II - COMPLAINTS CONCERNING THE PROCEDURE FOR THE ADOPTION OF THE DECISION TO DISMISS THE APPLICANT

20 THE APPLICANT COMPLAINS MOREOVER THAT THE CONTESTED DECISION WAS NOT PRECEDED BY THE OPINION OF THE REPORTS COMMITTEE AND WAS TAKEN BELATEDLY .

21 SINCE IT IS NOT COMPULSORY TO SET UP A REPORTS COMMITTEE AS PROVIDED IN ARTICLE 9 OF THE STAFF REGULATIONS, IT CANNOT BE COMPLAINED THAT THE COMMISSION HAS NOT YET MADE USE OF ITS OPTION TO SET UP THIS COMMITTEE .

22 ARTICLE 34, WHICH MAKES PROVISION FOR THE CASE IN WHICH AN OFFICIAL' S APPOINTMENT IS BROUGHT TO AN END FOLLOWING THE PROBATION PERIOD, DOES NOT LAY DOWN ANY COMPULSORY TIME-LIMIT FOR THE ADOPTION OF THAT DECISION .

23 SINCE THE LAST ADDITIONAL PERIOD OF PROBATION GRANTED TO THE APPLICANT ENDED ON 31 JANUARY 1970, THE COMMISSION, BY ADOPTING ON 11 FEBRUARY 1970 ITS DECISION TO DISMISS HIM AND BY NOTIFYING HIM TO THIS EFFECT ON THE FOLLOWING 16 FEBRUARY, ACTED WITHIN A REASONABLE PERIOD OF TIME .

24 THEREFORE THE COMPLAINTS OF THE APPLICANT ARE UNFOUNDED .

III - THE CLAIM FOR DAMAGES

25 THE APPLICANT MAINTAINS THAT THE COMMISSION, BY GIVING HIM TASKS DURING HIS PROBATIONARY PERIOD WHICH WERE LARGELY DIFFERENT FROM THOSE LAID DOWN IN THE VACANCY NOTICE, HAS COMMITTED A WRONGFUL ACT WHICH CAUSED HIM DAMAGE .

26 HE CLAIMS THAT THE DECISION TO DISMISS HIM WAS IN FACT OF A HUMILIATING NATURE AND LIKELY TO HAVE AN UNFAVOURABLE INFLUENCE ON THE SUBSEQUENT PROGRESS OF HIS CAREER IN HIS NATIONAL CIVIL SERVICE .

27 IT FOLLOWS FROM THE FOREGOING THAT UNDERLYING THE RECRUITMENT OF MR NAGELS BY THE COMMISSION THERE MAY HAVE BEEN A MISUNDERSTANDING ON THE PART OF MR NAGELS AS TO THE NATURE AND STANDARD OF THE DUTIES INVOLVED IN THE POST IN QUESTION AND ON THE PART OF THE COMMISSION AS TO THE NATURE OF THE APPLICANT' S KNOWLEDGE AND EXPERIENCE .

28 HOWEVER IN VIEW OF THE APPLICANT' S KNOWLEDGE OF FRENCH AND THE CONTACTS WHICH HE HAD HAD WITH THE BRANCH UNDER WHICH THE POST IN QUESTION COMES, ANY AMBIGUITY IN THE WORDING OF THE DUTCH VERSION OF THE VACANCY NOTICE IS NOT SUFFICIENT TO ESTABLISH THAT THE CONDUCT OF THE COMMISSION WAS IN FACT LIKELY TO MISLEAD A PRUDENT PERSON AS TO THE NATURE OF THE DUTIES INVOLVED IN THE POST IN QUESTION .

29 ON THE OTHER HAND, SOME PHRASES WHICH APPEARED IN THE CURRICULUM VITAE DRAWN UP BY THE APPLICANT ON 24 FEBRUARY 1968 SUCH AS " CHECKING THE APPLICATION OF EEC LEGISLATION AND STANDARDS CONCERNING THE IMPORT AND EXPORT OF AGRICULTURAL AND HORTICULTURAL PRODUCTS, THE PREPARATION OF MATERIAL FOR MEETINGS, THE DRAWING UP OF WORKING DOCUMENTS " WERE LIKELY TO MISLEAD THE COMMISSION AS TO MR NAGELS' S EXPERIENCE IN THE PERFORMANCE OF GENERAL OFFICE DUTIES .

30 IN THESE CIRCUMSTANCES AND ALSO IN VIEW OF THE CONSIDERATIONS STATED ABOVE IN RELATION TO THE FIRST SUBMISSION THE COMMISSION' S LIABILITY TO THE APPLICANT MUST BE RULES OUT .

Decision on costs

31 THE APPLICANT HAS FAILED IN HIS APPLICATION .

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

33 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN PROCEEDINGS COMMENCED AGAINST THEM BY SERVANTS OF THE COMMUNITIES .

34 MOREOVER, UNDER ARTICLE 69 ( 3 ), THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL .

35 AS HAS BEEN STATED ABOVE, A MISUNDERSTANDING BETWEEN THE COMMISSION AND MR NAGELS WAS THE SOURCE OF THE LATTER' S RECRUITMENT AND THEREFORE OF THE PRESENT PROCEEDINGS .

36 IN THIS CIRCUMSTANCE, IT IS JUST TO ORDER THE DEFENDANT TO PAY ONE HALF OF THE COSTS INCURRED BY THE APPLICANT .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO BEAR ONE HALF OF THE COSTS WHICH HE HAS INCURRED AND THE DEFENDANT TO BEAR THE REMAINDER OF THE COSTS INCURRED BY THE PARTIES .