OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 18 OCTOBER 1960 ( 1 )

Mr President,

Members of the Court,

In the opinion I gave last April in the case of Fiddelaar v Commission of the European Economic Community, which was joined with three very similar cases, I fully reviewed the issues of fact and of law which arose in that case. My recommendation at that time was that the Court should allow Mr Fiddelaar's application and declare that the decision of dismissal by the Commission was of no effect; alternatively, I suggested that the Court should order a measure of inquiry if the evidence which had emerged during the course of the proceedings was insufficient to justify an assumption that the dismissal involved a misuse of powers. The Court followed this suggestion and, as a result of an Order of 20 June 1960, it has just heard a number of witnesses whose evidence enables us to ascertain the reasons which led to the dismissal of the applicant.

My task today is to summarize for you the outcome of this inquiry and to make an appraisal of the parties' comments before delivering my opinion. To do so I shall take as my starting point the legal principles which the Court developed in its judgment in Joined Cases 43/59,45/59 and 48/59 where, on the basis of similar facts, it did not adopt the opinion which I expressed at that time.

What is the outcome of the inquiry? Is it clear from the evidence given by the witnesses that the dismissal of the applicant was a disguised disciplinary measure resulting from publication of an article in a journal? Would the applicant have been dismissed if the article had never appeared? In finding an answer to these questions we have received substantial help from, first and foremost, the evidence of Mr van Karnebeek, Director-General for Administration at the Commission of the EEC, who signed the dismissal decision. According to his evidence, the administration of the Commission regarded the problem created by publication of the article as over and done with and as having had nothing to do with the dismissal decision. We have no reason to doubt the truth of that statement by a high official of the Commission. But, of course, this is not enough to enable us to establish fully the chain of events which led to the dismissal, since we know that, in taking its decision, the administration acted on the recommendations of Mr Gummerer, Head of the Translation Service at the Commission. As the applicant has, in his latest deposition, rightly emphasized, it is therefore essential to establish how those recommendations were made.

In his evidence, Mr Gummerer denied having assured the applicant that, if it had not been for the article, he would not have been dismissed. All he said to the applicant was that he was not himself in a position to express an opinion on the quality of his work because he did not know Dutch and that he had therefore to rely on the assessment of the Dutch revisers. He discussed the publication of the article with the applicant on several occasions. He informed him of his personal opinion, but, in his capacity of Head of the Translation Service and as the person responsible for the satisfactory working of the service, he had felt it to be his duty to give him his comments on this point and to describe the publication as stupid. It is clear that he attached some importance to the article because he could not remain indifferent to the character of his translators. Nevertheless, the article was not the ground on which dismissal was recommended but it was an additional ground for the unfavourable report made on the applicant's work. At the hearing, the witness first of all referred to an ‘argument supplemental’ (‘additional argument’) then, in reply to Counsel for the applicant, to a ‘raison surebondante’ (‘supererogatory reason’) which had not played any part in the decision.

This evidence must be viewed in the light of the documents which appear on the personal file of the applicant and of the evidence given by other witnesses. In my first opinion I drew attention to the fact that, in the aptitude lists drawn up before publication of the article, the applicant had been placed above another Dutch translator who had remained in the service of the Commission. In subsequent reports, there is no longer any mention of this other translator but the applicant appears in bottom place. This appeared so striking that it was inevitably associated with publication of the article. In his evidence Mr Gummerer made a statement on this point which puts the incident in another light: the translator concerned had already received a ‘lettre d'engagement’ (‘letter of engagement’) and, because of this, there was no need for him any longer to be included in the list. However, because of the unfavourable reports made on his work, he was no longer given any translation work but, in view of his sound linguistic knowledge of the subject-matter, he was assigned to a post in the ‘Bureau de Terminologie’ (‘Terminology Office’) for which he was better suited, and down-graded in the salary scale. The position of that translator does not therefore need to be taken into account in the present case.

But, in my view, there are other factors which the Court must not overlook in judging the evidence given by Mr Gummerer. The applicant's personal file contains a short note from Mr Bauer, the then Head of the Translation Service. It is dated 15 October 1958 and is addressed to the administration or cashier's ofice in the Commission and states: ‘Nous avons l'intention de le garder’ (‘We intend to keep him’), that is to say Fiddelaar. I should also like to draw the Court's attention to a note by Mr Gummerer addressed on 25 May 1959 to Mr Lankes and in which, after comments on the vocational ability of the applicant, appear the following two sentences:

‘On m'assure d'autre part qu'il n'a pas d'esprit d'equipe.

Enfin, en publiant le fameux article contre une Administration qui lui versait, régulièrement et depuis plusieurs mois, FB 950 par jour pour un travail modeste, il a fait preuve d'un manque inquiétant de bon sens et de loyaute qui fait craindre d'autre surprises desagreables.’

(‘Moreover, I understand that he has no team spirit.

'Finally, in publishing the notorious article against an administration which, for several months, regularly paid him FB 950 per day in exchange for a modest return, he displays a disturbing lack of good sense and loyalty, which gives ground for fearing other unpleasant surprises’).

The report concludes with this sentence:

‘Pour toutes ces raisons je ne peux maintenir M. Fiddelaar dans la section neerlandaise qui est deja la plus faible de notre service et a besoin d'être renforcée par des traducteurs qualifies.’

(‘For all these reasons, I cannot keep Mr Fiddelaar in the Dutch section, which is already the weakest in the service and needs strengthening by qualified translators’).

The last paragraph of this letter is in striking contrast to the assurance given in evidence by Mr Gummerer during the inquiry that, as far as he was concerned, publication of the article was no more than an ‘argument surabondant’ (‘supererogatory consideration’).

This report was forwarded without comment by Mr van Karnebeek, together with a note of 17 August 1959, to the private office of the President of the Commission and as a result the administration became aware of the various grounds for the recommendations of Mr Gummerer, the Head of the Translation Department.

I must also draw the attention of the Court to a note from Mr Gummerer dated 16 January 1959. In this, he recommends the definite engagement of a number of translators, adding that he is not yet in a position to make a definite assessment in the case of the others. Nevertheless he makes an attempt to classify them and the applicant Fiddelaar is included in a group of five translators and ranked next to the bottom above van Alphen, the two of them constituting a sort of sub-group. But the note expressly states:

‘D'ailleurs la distinction entre les deux groupes n'est évidemment pas tres marquee’.

(‘There is however, little distinction between the two groups’).

It should be noted that the first place in the first sub-group is occupied by another Dutch translator who, according to statements by the applicant, which have not been challenged, was placed below the latter in a competition held at Amersfoort and who has also remained in the Commission's service.

The statements of the other witnesses are also relevant on this point. In evidence Mr Stempels declared that the reviser, Mr van Riemsdijk, had told him that Fiddelaar's work was not good but there were other translators who also were not good. Nevertheless Fiddelaar's work was not such as to justify his dismissal. When he gave evidence, the reviser, Mr van Riemsdijk confirmed this testimony: he said that Fiddelaar's work was certainly not good, but neither was it so bad that it was impossible to keep him on. To the best of Mr Dallinga's recollection, Mr van Riemsdijk told him that Fiddelaar was the worst translator but that his services could be retained.

This evidence, together with the written evidence referred to above, prompts the question whether the recommendations of dismissal by Mr Gummerer, Head of the Translation Service, were not based solely on the report made on his work and whether publication of the article in the journal was no more than an ‘argument surabondant’ (‘supererogatory argument’). As the revisers on whose assessment Mr Gummerer had to rely, because he did not know Dutch, stated that the standard of translation by the applicant Fiddelaar was not such as to require him to be dismissed, this could justify the conclusion that it was publication of the article which mainly led to the recommendation and the applicant's subsequent dismissal.

Since the decision of the administration was based on the recommendation of the Head of the Translation Service it was objectively influenced by considerations which carried weight with the person making the recommendation.

In view of this can the dismissal be regarded as a misuse of discretion amounting to détournement de pouvoir (misuse of powers)? I am reluctant to sum up the outcome of the inquiry in these terms. It is not inconceivable that the Head of the Translation Service felt entitled to recommend dismissal largely on the basis of a less than favourable appraisal made of the applicant's work but this does not mean that the recommendation of dismissal was in itself warranted. The position is not clear. This question can, I think, be left open.

In its judgment in Joined Cases 43/59, 45/59 and 48/59, the Court reached its findings on a basis which can be useful in this case too: this was that termination of contract of employment governed by public law can take place in the interests of the service only when service requirements, the abolition of a post, inadequate performance by the person concerned, etc. can justify dismissal. This basis was only of technical importance in those judgments, inasmuch as there was an absence in the decision of dismissal of any ground which had any appearance of involving any ‘interet de service’ (‘interests of the service’).

It is very clear that this technical ground of complaint exists in the present case as well.

Moreover, facts which have come to the notice of the Court in the present case also enable a conclusion to be drawn concerning the real reasons for the dismissal. We heard from the evidence of Mr van Karnebeek that, so far as he was concerned, as Director-General for Administration, the publication of the article was over and done with and could not therefore even result in disciplinary measures. It must therefore be completely disregarded. On the other hand, we learned from the revisers that the quality of the applicant's work did not make it necessary for him to be dismissed. They expressed this opinion on the basis of the applicant's ‘brouillons’ which according to Littre, are ‘premiers travaux avec corrections’ (‘corrected first drafts’). There is every reason for doubting the value of such a method of assessing performance. But its deficiencies must tell in the applicant's favour since, especially in a large public institution, it is incumbent upon the superior officer to demonstrate that the dismissal was justified by an opinion expressed after the observance of a procedure which is in every respect correct.

Finally, it is clrear from the file (cf. note of the witness Mr Gummerer of 25 May 1959) that there is no connexion between the dismissal and a reduction of the Translation Service because, on the contrary, it was stated that:

‘… la section neerlandaise qui est déjà la plus faible de notre service et a besoin d'etre renforcee par des traducteurs qualifiés’.

(‘… the Dutch section which is already the weakest in the service and needs strengthening by qualified translators’).

What is the significance of all this for the Court?

As the physical conditions for a proper termination of the contract of employment have not been proved the Court must, in my opinion, rule that the decision of dismissal of the Commission is of no effect. The consequence would be that the applicant remains in the service of the EEC and that he is entitled to be employed on the same conditions as the other translators who remained in the service of the Commission.

On the other hand, the Court cannot itself undertake to fix a specific grade and step in the table of salaries. I dealt with this point in my opinion of 4 April 1960.

There is furthermore no ground for ordering the Commission to make certain payments the amount of which depends on the classification of the applicant or to pay compensation for non-material damage. This last claim appears to be unfounded in a case of restitutio in integrum. Moreover, these claims were submitted for the first time in the applicant's statement in connexion with the measure of inquiry and for this reason they are out of time and inadmissible.

In its judgment in Joined Cases 43/59, 45/59, 48/59, the Court did not consider that the absence of a technical justification for the decisions of dismissal necessarily rendered them ineffective but merely awarded monetary compensation. In so doing, the Court was clearly acting on the principle that, in a staff dispute, the particular circumstances of the case make it possible to award compensation instead of annulling the decision.

It is not for me to approve or disapprove of these precedents. But I must point out that there are certain features of the present case, which argue in favour of an annulment of the decision. I must once more point out that the Court is concerned here with facts which disclose something more than a formal defect. I must also call the attention of the Court to the applicant's particular social circumstances, his family circumstances, his age and the fact that he has not yet succeeded in finding fresh employment. On the other hand, the defendant had not adduced any evidence of circumstances to indicate that it would be unreasonable for the Commission to take him back into employment.

If, however, the Court decides not to annul the decision, all these considerations will of course have to be taken into account in assessing compensation. Without committing myself in this opinion to a particular sum, I suggest that the applicant ought to receive a larger sum than that awarded to the applicants in Joined Cases 43/59,45/59 and 48/59 for non-material damage. The compensation which the Court, with due regard to all the circumstances of the case, is free to determine as it sees fit, would cover all the claims which the applicant can base on the fact that the dismissal was irregular.

To sum up I consider that the Court should:

1. Declare that the decision of dismissal of the Commission of the European Economic Community is of no effect; in the alternative, order the Commission of the European Economic Community to pay to the applicant compensation of an amount fixed at the discretion of the Court;

2. Order the defendant to pay the costs.

( 1 ) Translated from the German.