Judgment of the Court (First Chamber) of 26 February 1976. - Germaine van de Roy v Commission of the European Communities. - Case 92-75.



European Court reports 1976 Page 00343

Greek special edition Page 00151

Portuguese special edition Page 00161



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - PROBATIONARY PERIOD - ANNUAL LEAVE - INCLUSION - PERMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 34 )

2 . OFFICIALS - PROBATIONARY PERIOD - END - DISMISSAL - NOTIFICATION - REASONABLE PERIOD

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 34 )

3 . OFFICIALS - PROBATIONARY PERIOD - END - DISMISSAL - NO LIABILITY ON THE PART OF THE COMMISSION

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 34 )

Summary

1 . THE FACT THAT A PROBATIONARY PERIOD INCLUDES ANNUAL LEAVE DURING WHICH THE AMOUNT OF WORK IS REDUCED DOES NOT MEAN THAT IT DID NOT ENABLE THE PROBATIONER ' S SKILL TO BE ASSESSED .

2 . ARTICLE 34 OF THE STAFF REGULATIONS OF OFFICIALS RELATING TO CASES IN WHICH THE EMPLOYMENT OF AN OFFICIAL IS TERMINATED AT THE END OF THE PROBATIONARY PERIOD DOES NOT LAY DOWN ANY PRECISE TIME-LIMIT FOR THE NOTIFICATION OF THIS DECISION BUT ALLOWS THE INSTITUTION A REASONABLE PERIOD AT THE END OF THE PROBATIONARY PERIOD IN WHICH TO DO SO .

3 . THE DISMISSAL PROCEDURE IS SET OUT IN THE STAFF REGULATIONS AND THEREFORE SINCE THE RELEVANT PROVISIONS WERE COMPLIED WITH IT CANNOT ENTAIL ANY LIABILITY ON THE PART OF THE COMMISSION WITH REGARD TO THE DISMISSED PROBATIONER OFFICIAL .

Parties

IN CASE 92/75

GERMAINE LAMBERT ( NEE VAN DE ROY ), A FORMER PROBATIONER OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 60 BRUGSTRAAT , 3370 BOUTERSEM , BELGIUM , REPRESENTED BY MARC GOLDBERG , ADVOCATE AT THE COUR D ' APPEL , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JACQUES LOESCH , ADVOCATE , 2 RUE GOETHE ,

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 OFFICES OF ITS LEGAL ADVISER , MARIO CERVINO , BATIMENT CFL , PLACE DE LA GARE ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION DISMISSING THE APPLICANT ,

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 13 AUGUST 1975 THE APPLICANT , OF BELGIAN NATIONALITY , HAS SOUGHT THE ANNULMENT OF THE DECISION TAKEN IN RESPECT OF HER ON 17 JANUARY 1975 BY THE DEFENDANT DISMISSING HER FROM HER POST AS A PROBATIONER OFFICIAL IN THE DUTCH TRANSLATION DIVISION TO WHICH SHE WAS APPOINTED ON 16 APRIL 1974 IN APPLICATION OF ARTICLE 34 OF THE STAFF REGULATIONS .

2 IN ADDITION SHE REQUESTS THAT THE COMMISSION BE ORDERED TO PAY 100 000 BFRS AS COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH SHE HAS SUFFERED BECAUSE OF HER DISMISSAL AND , IN THE ALTERNATIVE , TO PAY COMPENSATION OF 480 000 BFRS EQUAL TO 10 MONTHS ' SALARY .

3 THE APPLICANT MAINTAINS FIRST THAT HER PROBATIONARY PERIOD WAS CURTAILED AND DID NOT PROVIDE CONDITIONS ENABLING HER ABILITY TO BE ASSESSED .

4 IT IS IN NO WAY EXCEPTIONAL FOR THE PROBATIONARY PERIOD TO INCLUDE ANNUAL LEAVE DURING WHICH NUMEROUS OFFICIALS ARE ABSENT AND THE AMOUNT OF WORK IS REDUCED ; THIS DOES NOT MEAN THAT THE PROBATIONARY PERIOD DID NOT ENABLE THE APPLICANT ' S SKILL TO BE ASSESSED .

5 WHILST IT APPEARS THAT ON SOME DAYS THE APPLICANT WAS LEFT WITHOUT WORK THIS IS EXPLAINED BY THE FACT THAT WORK SUITABLE FOR PROBATIONERS IS NOT ALWAYS AVAILABLE AND THEY ARE EXPECTED TO MAKE USE OF SUCH PERIODS TO IMPROVE THEIR LINGUISTIC KNOWLEDGE .

6 THE APPLICANT ALLEGES THAT HER SUPERIORS ' REFUSED ' TO GIVE HER WORK AFTER 29 NOVEMBER 1974 BUT THIS WAS BECAUSE ON THAT DATE THE REPORT ON THE EXPIRY OF HER PROBATIONARY PERIOD HAD BEEN MADE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS , SO THAT THE DEFENDANT HAD ADOPTED ITS OPINION .

7 SECONDLY IT IS ALSO IMPOSSIBLE TO UPHOLD THE APPLICANT ' S COMPLAINT WITH REGARD TO THE LACK OF FOUNDATION FOR THE DECISION TAKEN IN RESPECT OF HER , TO THE ABSENCE OF EXAMINATION OF HER WORK BY HER SUPERIOR , THE HEAD OF THE DUTCH TRANSLATION DIVISION , AND TO THE INCAPACITY OF THE OFFICIALS WHO SIGNED THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD TO ASSESS HER ABILITY IN VIEW OF THEIR IGNORANCE OF THE DUTCH LANGUAGE .

8 THE DIRECTOR OF THE TRANSLATION , DOCUMENTATION , REPRODUCTION AND LIBRARY DIRECTORATE AND THE HEAD OF THE TRANSLATION ( GENERAL MATTERS ) DIVISION WERE IN POSSESSION OF THE ASSESSMENT MADE BY THE COORDINATOR OF THE GROUP IN WHICH THE APPLICANT WAS WORKING AND WERE THUS , IN CONJUNCTION WITH HER IMMEDIATE SUPERIOR , IN A POSITION TO ASSESS THE APPLICANT ' S ABILITY , THE ASSESSMENT WHICH THEY MADE DOES NOT APPEAR TO BE WITHOUT FOUNDATION .

9 IN THE CIRCUMSTANCES THESE COMPLAINTS ARE WITHOUT FOUNDATION .

10 THE APPLICANT FURTHER COMPLAINS THAT THE CONTESTED DECISION WAS ONLY NOTIFIED TO HER AFTER THE END OF HER PROBATIONARY PERIOD .

11 SHE STATES THAT THE DECISION IN QUESTION , WHICH TOOK EFFECT ON 16 JANUARY 1975 , WAS ONLY NOTIFIED TO HER THE NEXT DAY AND WAS ONLY CONFIRMED IN A LETTER RECEIVED BY THE APPLICANT ON 21 JANUARY .

12 ARTICLE 34 RELATING TO CASES IN WHICH THE EMPLOYMENT OF AN OFFICIAL IS TERMINATED AT THE END OF THE PROBATIONARY PERIOD DOES NOT LAY DOWN ANY PRECISE TIME-LIMIT FOR THE NOTIFICATION OF THIS DECISION BUT ALLOWS THE INSTITUTION A REASONABLE PERIOD AT THE END OF THE PROBATIONARY PERIOD IN WHICH TO DO SO .

13 THEREFORE THE FACT THAT THE APPLICANT WHO ALREADY WAS AWARE OF THE ASSESSMENTS MADE OF HER , WAS NOT INFORMED OF HER DISMISSAL ON 15 JANUARY 1975 , THE EXACT DATE OF THE END OF THE PROBATIONARY PERIOD , CANNOT TRANSFORM HER EMPLOYMENT FOR A FIXED PERIOD INTO EMPLOYMENT FOR AN INDEFINITE PERIOD .

14 THE SECOND SUBMISSION MUST THEREFORE BE REJECTED .

15 THE APPLICANT FURTHER ALLEGES THAT THE DECISION TAKEN IN RESPECT OF HER CAUSED HER SERIOUS NON-MATERIAL DAMAGE SINCE DISMISSAL AT THE EXPIRY OF THE PROBATIONARY PERIOD OF A PERSON WHO TOOK PART IN AN EXTERNAL COMPETITION IS EXTREMELY RARE .

16 HOWEVER , THE DISMISSAL PROCEDURE IS SET OUT IN THE STAFF REGULATIONS AND THEREFORE SINCE THE RELEVANT PROVISIONS WERE COMPLIED WITH IT CANNOT ENTAIL ANY LIABILITY ON THE PART OF THE COMMISSION WITH REGARD TO THE DISMISSED PROBATIONER OFFICIAL .

17 SINCE THE PROCEDURE FOLLOWED FOR THE ADOPTION OF THE DECISION AT ISSUE WAS NOT VITIATED BY ANY DEFECT OF FORM , THIS SUBMISSION MUST BE REJECTED .

18 FINALLY THE APPLICANT MAINTAINS THAT THE UNILATERAL BREACH OF HER CONTRACT OF EMPLOYMENT CAUSED HER DAMAGE EQUAL TO 10 MONTHS ' SALARY .

19 SINCE THE APPOINTMENT OF THE APPLICANT WAS TERMINATED IN ACCORDANCE WITH THE PROVISIONS OF THE STAFF REGULATIONS , THIS FINAL SUBMISSION MUST ALSO BE REJECTED .

Decision on costs

COSTS

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

21 THE APPLICANT HAS FAILED IN HER SUBMISSIONS .

22 NEVERTHELESS UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .