Judgment of the Court (First Chamber) of 1 June 1978. - Dr Denis D'Auria v Commission of the European Communities. - Case 99/77.



European Court reports 1978 Page 01267

Greek special edition Page 00389

Portuguese special edition Page 00429



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS

- RECRUITMENT - PROBATIONARY PERIOD - EXPIRY - DISMISSAL - DECISION - REASONABLE PERIOD - TIME WHEN IT STARTS TO RUN

( STAFF REGULATIONS OF OFFICIALS , ART . 34 ( 2 ))

Summary

THE FIRST SUBPARAGRAPH OF ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS RELATING TO CASES IN WHICH THE EMPLOYMENT OF AN OFFICIAL IS TERMINATED AT THE END OF THE PROBATIONARY PERIOD DOES NOT LAY DOWN ANY MANDATORY PERIOD WITHIN WHICH THAT DECISION MUST BE ADOPTED . ALTHOUGH THE ADMINISTRATION IS BOUND TO ADOPT ITS DECISION WITHIN A REASONABLE PERIOD , THAT PERIOD CAN ONLY START TO RUN AS FROM THE MOMENT WHEN THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD HAS BEEN DRAWN UP AND COMMUNICATED TO THE OFFICIAL CONCERNED .

Parties

IN CASE 99/77

DR DENIS D ' AURIA , A FORMER PROBATIONARY OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT UPTON , DIDCOT ( OXFORDSHIRE ), UNITED KINGDOM , REPRESENTED BY JAQUES PUTZEYS AND XAVIER LEURQUIN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES NICKTS , HUISSIER DE JUSTICE , 17 BOULEVARD ROYAL ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF :

- THE IMPLIED DECISION REJECTING HIS COMPLAINT THROUGH OFFICIAL CHANNELS OF 19 JANUARY 1977 CONCERNING THE WITHDRAWAL OF THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD DATED 25 OCTOBER 1976 ;

- THE IMPLIED DECISION REJECTING HIS COMPLAINT THROUGH OFFICIAL CHANNELS OF 18 MARCH 1977 CONCERNING THE WITHDRAWAL OF THE DECISION OF 20 DECEMBER 1976 TO DISMISS HIM ;

- IN SO FAR AS MAY BE NECESSARY , THE EXPRESS DECISION REJECTING THE TWO COMPLAINTS THROUGH OFFICIAL CHANNELS CONTAINED IN LETTER NO 4425 FROM THE COMMISSION OF 30 AUGUST 1977 ;

THE D ' AURIA V COMMISSION

Grounds

1BY AN APPLICATION LODGED ON 1 AUGUST 1977 THE APPLICANT SEEKS THE ANNULMENT OF THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD , DRAWN UP AS REGARDS HIM ON 25 OCTOBER 1976 UNDER ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS , AS WELL AS OF THE DECISION OF THE COMMISSION OF 20 DECEMBER 1976 DISMISSING HIM WITH EFFECT FROM 1 JANUARY 1977 .

( A ) THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD

2THE APPLICANT MAINTAINS , FIRST , THAT THE CONTESTED REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD IS VITIATED BY LACK OF COMPETENCE , IN THAT IT WAS DRAWN UP AND SIGNED BY THE HEAD OF THE MEDICAL SERVICE AT ISPRA , AN OFFICIAL IN GRADE A 3 , WHEREAS SUCH A REPORT OUGHT ONLY TO HAVE BEEN DRAWN UP AND SIGNED BY THE DIRECTOR CONCERNED , IN THIS INSTANCE THE DIRECTOR OF PERSONNEL .

3IN D ' AURIA V COMMISSION

ADDITION , THE APPLICANT MAINTAINS THAT THE SAID REPORT IS VITIATED BY MATERIAL ERROR , IN THAT IT IS BASED ON FACTS WHICH ARE MANIFESTLY INCORRECT OR INCOMPLETE , SUCH AS , IN PARTICULAR , THOSE RELATING TO HIS MISSION TO FRIULI AND TO THE EXTENT AND VARIETY OF HIS RESEARCH ACTIVITIES .

4AS

REGARDS THE FIRST SUBMISSION , NO PROVISION IN THE STAFF REGULATIONS OF OFFICIALS DETERMINES THE AUTHORITY COMPETENT , AS ASSESSOR , TO DRAW UP AND SIGN THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD REFERRED TO IN ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS .

5THE APPLICANT MAINTAINS THAT THE COMMISSION COULD AND SHOULD HAVE ADOPTED SPECIFIC PROVISIONS IN THE MATTER BY MAKING USE OF THE POWER CONFERRED UPON IT BY ARTICLE 110 OF THE STAFF REGULATIONS , WITH THE RESULT THAT IT CANNOT AVAIL ITSELF OF THE ABSENCE OF SUCH PROVISIONS IN ORDER TO JUSTIFY THE AWARD OF THE DUTIES OF ASSESSOR TO AN ADMINISTRATIVE AUTHORITY OTHER THAN THE DIRECTOR OF PERSONNEL .

6ALTHOUGH ARTICLE 110 OF THE STAFF REGULATIONS PROVIDES THAT EACH INSTITUTION SHALL ADOPT GENERAL PROVISIONS FOR GIVING EFFECT TO THE STAFF REGULATIONS AFTER CONSULTING ITS STAFF COMMITTEE AND THE STAFF REGULATIONS COMMITTEE , IT DOES NOT SPECIFY THE FORM IN WHICH SUCH PROVISIONS MUST BE ADOPTED .

7IT IS ESTABLISHED THAT IN FACT THE APPOINTMENT OF AN ASSESSOR FORMS THE SUBJECT OF A COMMISSION MEMORANDUM OF 1 FEBRUARY 1974 , ENTITLED ' ' GUIDE A L ' INTENTION DES NOTATEURS DES FONCTIONNAIRES STAGIAIRES ' ' ( GUIDE TO THOSE ACTING AS THE ASSESSORS OF PROBATIONARY OFFICIALS ).

8AS REGARDS THE APPOINTMENT OF AN ASSESSOR , CHAPTER 1 OF THE SECOND SECTION OF THAT MEMORANDUM RECOMMENDS THAT GUIDANCE SHOULD BE SOUGHT ' ' AS FAR AS POSSIBLE ' ' FROM THE DIRECTIVES ADOPTED IN RELATION TO THE PERIODIC REPORT REFERRED TO IN ARTICLE 43 OF THE STAFF REGULATIONS , ACCORDING TO WHICH , AS REGARDS OFFICIALS IN CATEGORY A AND THE LANGUAGE SERVICE , THE STAFF REPORT IS TO BE DRAWN UP BY THE COMPETENT DIRECTOR OR THE CHIEF ADVISER .

9AS THOSE DIRECTIVES WERE ADOPTED BY THE COMMISSION BY VIRTUE OF ARTICLE 110 OF THE STAFF REGULATIONS , THEIR EXTENSION TO THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD CANNOT BE SEEN AS AN ARBITRARY ADMINISTRATIVE MEASURE , HAVING REGARD IN PARTICULAR TO THE ANALOGIES BETWEEN THAT REPORT AND THE PERIODIC REPORT .

10FURTHERMORE ,

THE RESERVATION ' ' AS FAR AS POSSIBLE ' ' CONTAINED IN THE MEMORANDUM MAY BE EXPLAINED BY THE PARTICULAR NATURE OF CERTAIN SITUATIONS OF FACT OR OF LAW IN WHICH THE PROBATIONARY OR PERIODIC REPORT IS DRAWN UP .

11SUCH A SITUATION EXISTED IN THIS INSTANCE , IN WHICH THE QUESTIONS OF THE PROFESSIONAL ABILITY OF THE APPLICANT AND OF THE DUTIES ATTACHING TO THE POST WHICH HE WAS TO OCCUPY IN THE MEDICAL SERVICE OF THE INSTITUTION WERE SO SPECIFIC THAT THEY COULD NOT HAVE BEEN PROPERLY ASSESSED BY THE DIRECTOR OF PERSONNEL .

12ON THE OTHER HAND , THE DRAWING UP , IN THIS CASE , OF THE PROBATION REPORT BY A SUPERIOR AUTHORITY OTHER THAN THE HEAD OF THE MEDICAL SERVICE WHO , ALTHOUGH LOWER IN RANK THAN THE DIRECTOR OF PERSONNEL , HAS A CLOSE WORKING RELATIONSHIP WITH THE PROBATIONARY OFFICIAL , WAS BETTER ABLE TO ENSURE A CORRECT ASSESSMENT OF HIS ABILITIES FOR THE PURPOSE OF POSSIBLE ESTABLISHMENT AND , THUS , TO SATISFY THE GENERAL INTERESTS OF THE SERVICE .

13AS REGARDS THE SECOND SUBMISSION , NOTHING IN THE CONTESTED PROBATION REPORT ENABLES IT TO BE CONCLUDED THAT THE MATERIAL FACTORS ALLUDED TO BY THE APPLICANT , SUCH AS HIS MISSION TO FRIULI , WERE CONCLUSIVE AS REGARDS THE APPRAISALS OF HIM MADE BY THE ASSESSOR .

14FURTHERMORE , THERE IS NOTHING TO SUPPORT THE ARGUMENT THAT THAT REPORT IS INCOMPLETE OR INCORRECT AS REGARDS THE EXTENT AND VARIETY OF THE APPLICANT ' S RESEARCH ACTIVITIES , HAVING REGARD , IN PARTICULAR , TO THE FACT THAT THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD ITSELF DESCRIBES THE PRINCIPAL ACTIVITIES CARRIED OUT BY THE APPLICANT DURING THAT PERIOD .

15FOR ALL THOSE REASONS THE HEADS OF THE CONCLUSIONS IN THE APPLICATION DIRECTED AGAINST THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD MUST BE DISMISSED AS UNFOUNDED .

( B ) THE DECISION TO DISMISS THE APPLICANT

16THE APPLICANT MAINTAINS , FIRST , THAT THE DECISION TO DISMISS HIM IS ILLEGAL , INASMUCH AS IT WAS ADOPTED AFTER THE EXPIRY OF THE PROBATIONARY PERIOD , THAT IS , AT A DATE AT WHICH , BY VIRTUE OF ARTICLE 34 OF THE STAFF REGULATIONS , THE APPOINTING AUTHORITY NO LONGER HAD THE POWER TO DISMISS AN OFFICIAL FOR THE UNSATISFACTORY PERFORMANCE OF HIS DUTIES DURING THE PROBATIONARY PERIOD .

17IN SUPPORT OF THAT GROUND OF COMPLAINT HE MAINTAINS THAT IN STATING THAT THE PROBATIONARY PERIOD ' ' SHALL BE NINE MONTHS FOR OFFICIALS IN CATEGORY A ' ' ARTICLE 34 OF THE STAFF REGULATIONS MAKES IT CLEAR THAT ANY DECISION CONCERNING THE DISMISSAL OF THE PROBATIONARY OFFICIAL MUST BE ADOPTED BEFORE THE EXPIRY OF THAT PERIOD .

18THE FIRST SUBPARAGRAPH OF ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS , RELATING TO CASES SUCH AS THE PRESENT IN WHICH THE EMPLOYMENT OF AN OFFICIAL IS TERMINATED AT THE END OF THE PROBATIONARY PERIOD , DOES NOT LAY DOWN ANY MANDATORY PERIOD WITHIN WHICH THAT DECISION MUST BE ADOPTED .

19ALTHOUGH THE COMMISSION IS BOUND TO ADOPT ITS DECISION WITHIN A REASONABLE PERIOD , THAT PERIOD CAN ONLY START TO RUN AS FROM THE MOMENT WHEN THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD HAS BEEN DRAWN UP AND COMMUNICATED TO THE OFFICIAL CONCERNED .

20IN THIS CASE , SINCE THE STARTING POINT FOR THE CALCULATION OF THE PERIOD WAS THUS 25 OCTOBER 1976 , THE DECISION TO DISMISS HIM , TAKEN ON 20 DECEMBER 1976 , WAS ADOPTED WITHIN A REASONABLE TIME .

21THE APPLICANT MAINTAINS , SECONDLY , THAT THE SAID DECISION INFRINGES ARTICLE 9 ( 5 ) OF THE STAFF REGULATIONS , INASMUCH AS IT WAS ADOPTED WITHOUT THE OPINION OF THE REPORTS COMMITTEE HAVING BEEN SOUGHT .

22IN HIS OPINION THE FACT THAT AT PRESENT THAT COMMITTEE DOES NOT EXIST IS NOT SUFFICIENT TO RULE OUT SUCH AN INFRINGEMENT , SINCE ITS SETTING UP CANNOT BE DELAYED INDEFINITELY BY THE COMMISSION .

23ARTICLE 9 ( 1 ) OF THE STAFF REGULATIONS PROVIDES THAT A REPORTS COMMITTEE SHALL BE SET UP ' ' IF REQUIRED ' ' .

24AS THERE IS NO OBLIGATION TO SET UP SUCH A COMMITTEE , THE COMMISSION CANNOT BE CRITICIZED FOR NOT HAVING DONE SO AND FOR HAVING ADOPTED A DECISION TO DISMISS THE APPLICANT AT THE EXPIRY OF THE PROBATIONARY PERIOD WITHOUT HAVING SOUGHT THE OPINION OF SUCH A BODY .

25THE APPLICANT FURTHER MAINTAINS THAT THE CONTESTED DECISION IS IRREGULAR , INASMUCH AS IT WAS ADOPTED ON THE BASIS OF A REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD WHICH WAS DRAWN UP AND SIGNED BY AN OFFICIAL WHO WAS NOT COMPETENT SO TO ACT .

26AS , FOR THE REASONS SET OUT ABOVE , THE COMPLAINT OF LACK OF COMPETENCE WITH REGARD TO THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD IS UNFOUNDED IN LAW , THE PRESENT SUBMISSION APPEARS TO BE WITHOUT LEGAL FOUNDATION .

27THE APPLICANT MAINTAINS , FINALLY , THAT THE CONTESTED DECISION IS VITIATED BY MISUSE OF POWERS , INASMUCH AS IT WAS ADOPTED FOLLOWING AN UNSUCCESSFUL ATTEMPT BY THE DIRECTOR OF PERSONNEL TO PUT PRESSURE ON HIM IN ORDER TO OBTAIN HIS VOLUNTARY RESIGNATION .

28IN SUPPORT OF THAT SUBMISSION THE APPLICANT REFERS TO AN INTERVIEW WHICH HE HAD WITH HIS DIRECTOR OF PERSONNEL ON 8 DECEMBER 1976 AND TO A LETTER DELIVERED TO HIM BY THAT DIRECTOR ON THE SAME DAY , WHICH INFORMED HIM THAT THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD OF 25 OCTOBER 1976 WOULD BE DESTROYED AND THAT THE INSTITUTION WOULD EXPRESS ITS THANKS IN WRITING FOR HIS WORK IF , BY 17 DECEMBER 1976 , HE SENT THE ADMINISTRATION HIS RESIGNATION WITH EFFECT FROM 1 APRIL 1977 AT THE LATEST .

29IN THE APPLICANT ' S OPINION , THE AIM PURSUED BY THE COMMISSION IN MAKING THAT ATTEMPT IS UNLAWFUL , A FORTIORI SINCE VOLUNTARY RESIGNATION ON THE PART OF THE OFFICIAL CONCERNED WOULD HAVE ENABLED THE ADMINISTRATION TO AVOID THE PAYMENT OF THE COMPENSATION EQUAL TO TWO MONTHS ' BASIC SALARY PROVIDED FOR BY THE THIRD SUBPARAGRAPH OF ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS .

30THE ARGUMENTS PUT FORWARD DO NOT DEMONSTRATE THE EXISTENCE OF ELEMENTS OF FACT OR OF LAW SUFFICIENT TO SUPPORT THE ALLEGATION OF MISUSE OF POWERS .

31SINCE THE DECISION OF THE APPOINTING AUTHORITY TO DISPENSE WITH THE SERVICES OF THE APPLICANT WAS , AS IS SHOWN BY THE AFOREMENTIONED LETTER , IN THE COURSE OF ADOPTION AT THE DATE OF THE ABOVE-MENTIONED INTERVIEW AND LETTER , IT MAY BE ACCEPTED THAT - REGRETTABLE THOUGH IT MAY APPEAR - THE PROPOSAL MADE ON THAT OCCASION BY THE DIRECTOR GENERAL HAS ITS ORIGIN IN THE DESIRE OF THE APPOINTING AUTHORITY NOT TO HARM THE APPLICANT ' S REPUTATION .

32FOR D ' AURIA V COMMISSION

THAT REASON THE HEADS OF CONCLUSION CONCERNING THE ANNULMENT OF THE DECISION TO DISMISS THE APPLICANT ARE UNFOUNDED IN LAW .

33ON THOSE GROUNDS THE PRESENT APPLICATION IS DISMISSED .

Decision on costs

COSTS

34UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

35THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

36HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY

1 . DISMISSES THE APPLICATION ;

2 . ORDERS OPINION OF MR WARNER - CASE 99/77

THE PARTIES TO BEAR THEIR OWN COSTS .