Judgment of the Court (First Chamber) of 8 October 1981. - Peter John Krier Tither v Commission of the European Communities. - Probationary official - Dismissal. - Case 175/80.



European Court reports 1981 Page 02345



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - PROBATION - REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD - PREPARATION OF A SECOND REPORT - PERMISSIBILITY

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

2 . OFFICIALS - RECRUITMENT - PROBATION - ABSENCE OWING TO ILLNESS - DECISION TO DISMISS - DUTY OF THE ADMINISTRATION - TAKING ACCOUNT OF MEDICAL REPORTS

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

Summary

1 . BY PROVIDING THAT THE REPORT ON THE EXPIRY OF THE PROBATIONARY PERIOD IS TO BE DRAWN UP NOT LESS THAN ONE MONTH BEFORE THE EXPIRY OF THE PROBATIONARY PERIOD , ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS ENABLES THE REPORT TO BE SENT TO THE PERSON CONCERNED FOR ANY OBSERVATIONS HE MAY WISH TO MAKE AND ALLOWS THE APPOINTING AUTHORITY SUFFICIENT TIME TO STUDY THE REPORT IN ORDER TO MAKE ITS DECISION , ON THE EXPIRY OF THE PROBATIONARY PERIOD , AS TO WHETHER OR NOT THE PROBATIONARY OFFICIAL IS TO BE ESTABLISHED . HOWEVER , SINCE THE PROBATIONARY PERIOD MAY BE EXTENDED , EVEN AFTER THE REPORT ON THE EXPIRY OF THE PROBATIONARY PERIOD HAS BEEN DRAWN UP , TO INTERPRET THE STAFF REGULATIONS IN SUCH A WAY AS TO EXCLUDE THE POSSIBILITY OF DRAWING UP A SECOND REPORT ON THE EXPIRY OF THE PROBATIONARY PERIOD SHOULD THE CONDUCT OR ABILITY OF THE PROBATIONARY OFFICIAL PROVE UNSATISFACTORY WOULD BE TOO RESTRICTIVE .

2 . BEFORE THE APPOINTING AUTHORITY DECIDES TO DISMISS A PROBATIONARY OFFICIAL WHO CLAIMS THAT HIS ABSENCE IS DUE TO ILL HEALTH , IT MUST CONSIDER ANY MEDICAL REPORTS CERTIFYING THAT HE IS UNFIT FOR WORK .

Parties

IN CASE 175/80

PETER JOHN KRIER TITHER , A FORMER PROBATIONARY OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT YR HEN POPDU STEM , HEOL Y BONT , CYDWELI , DYFED SA17 4UU ( UNITED KINGDOM ), REPRESENTED BY ULICK BOURKE , SOLICITOR , OF MESSRS CLIFFORD-TURNER , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . HOSS , 84 GRAND-RUE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , THOMAS S . CUSACK , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF M . CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION PRINCIPALLY FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 1 AUGUST 1979 TO DISMISS THE APPLICANT ON THE EXPIRY OF HIS PROBATIONARY PERIOD ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 1 AUGUST 1980 MR TITHER , A FORMER PROBATIONARY OFFICIAL AT THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION SEEKING PRIMARILY THE ANNULMENT OF THE SECOND PROBATION REPORT ON HIM DRAWN UP BY THE COMMISSION ON 6 JULY 1979 AND OF THE DECISION TO DISMISS HIM TAKEN BY THE COMMISSION ON 1 AUGUST 1979 AND , AS IN SUBSIDIARY CLAIMS , THE AWARD OF DAMAGES .

2 THE APPLICANT ENTERED THE SERVICE OF THE COMMISSION ON 10 AUGUST 1978 AS AN ADMINISTRATIVE ASSISTANT IN GRADE B 5 IN THE SHIPPING DIVISION OF DIRECTORATE-GENERAL VII , AND IN ACCORDANCE WITH ARTICLE 34 ( 1 ) OF THE STAFF REGULATIONS COMPLETED A PROBATIONARY PERIOD OF NINE MONTHS WHICH WAS EXTENDED BY ONE MONTH , FROM 10 MAY TO 10 JUNE 1979 , FOLLOWING A PERIOD OF ILLNESS FROM THE PRECEDING 6 NOVEMBER TO 3 DECEMBER . ON 11 MAY 1979 THE APPLICANT ' S HEAD OF DIVISION PREPARED THE APPLICANT ' S REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD REQUIRED BY ARTICLE 34 ( 2 ), WHICH INCLUDED THE DESCRIPTION ' ' UNSATISFACTORY ' ' UNDER THE HEADING ' ' RELATIONS INSIDE THE DEPARTMENT ' ' . NEVERTHELESS THE REPORT RECOMMENDED THAT THE APPLICANT BE ESTABLISHED .

3 ON 21 MAY 1979 MR TITHER WENT ON A WEEK ' S LEAVE TO WALES . HE HAD BEEN GRANTED THREE DAYS ' SPECIAL LEAVE TO VOTE IN LOCAL ELECTIONS , AND THE LAST TWO WORKING DAYS OF THE WEEK WERE HOLIDAYS FOR COMMUNITY OFFICIALS ( ASCENSION DAY AND THE FRIDAY INTERVENING BEFORE THE WEEKEND ).

4 THE FOLLOWING MONDAY , 28 MAY , THE APPLICANT DID NOT RETURN TO WORK . HE MAINTAINS THAT ON THAT DAY AND THE FOLLOWING DAY HE ATTEMPTED TO TELEPHONE HIS SUPERIOR OFFICER WITHOUT SUCCESS . ACCORDING TO THE FILE THE APPLICANT ' S ABSENCE WAS REPORTED TO THE ASSISTANT TO THE DIRECTOR-GENERAL WHO ON THE AFTERNOON OF 29 MAY AND ON THE FOLLOWING DAY TELEPHONED THE APPLICANT AT HIS HOME AND LEFT A MESSAGE . THE APPLICANT IS SAID TO HAVE RECEIVED THE MESSAGE WHEN HE WAS IN LONDON . IT IS CLAIMED THAT HE TELEPHONED THE ASSISTANT TO THE DIRECTOR-GENERAL TO INFORM HIM THAT HE WAS SICK BUT WAS NEVERTHELESS PREPARING TO RETURN TO BRUSSELS . BY THE END OF THAT WEEK THE PARTIES HAD HAD SEVERAL TELEPHONE CONVERSATIONS . MR TITHER HAD RETURNED TO WALES AND TELEPHONED FROM THERE TO SAY THAT HIS STATE OF HEALTH HAD DETERIORATED BEFORE HE COULD CONTINUE HIS JOURNEY TO BRUSSELS .

5 ON 4 JUNE 1979 THE APPLICANT WAS EXAMINED BY A DOCTOR IN WALES . A MEDICAL CERTIFICATE SIGNED ON THE SAME DAY , RECOMMENDING TWO WEEKS ' ABSENCE FROM WORK , WAS RECEIVED BY THE COMMISSION ' S MEDICAL BRANCH ON 18 JUNE 1979 . SUBSEQUENT MEDICAL CERTIFICATES , DATED 15 JUNE AND 6 JULY 1979 , CERTIFIED INCAPACITY FOR WORK FOR ' ' THREE WEEKS ' ' AND ' ' TWO WEEKS ' ' RESPECTIVELY .

6 ON 6 JULY 1979 THE APPLICANT ' S HEAD OF DIVISION PREPARED A SECOND PROBATION REPORT WHICH STATED THAT MR TITHER ' S CONDUCT WAS UNSATISFACTORY IN THREE RESPECTS : SENSE OF RESPONSIBILITY , RELATIONS INSIDE THE DEPARTMENT AND PUNCTUALITY . IN THE GENERAL OBSERVATIONS , THE MAIN EMPHASIS WAS ON THE FACT THAT THE APPLICANT HAD ASKED FOR THREE DAYS ' SPECIAL LEAVE TO VOTE IN LOCAL ELECTIONS IN WALES WHEREAS HIS ENTITLEMENT TO SUCH LEAVE WAS DOUBTFUL , AND ON THE APPLICANT ' S FAILURE TO JUSTIFY HIS ABSENCE FROM 28 MAY 1979 . THE REPORT CONCLUDED WITH A RECOMMENDATION THAT THE APPLICANT BE DISMISSED . ACCORDING TO THE APPLICANT THE REPORT REACHED HIM ON 17 JULY ; A TELEGRAM WHICH HE RECEIVED ON 20 JULY INFORMED HIM THAT HE HAD UNTIL 31 JULY TO SUBMIT HIS OBSERVATIONS TO THE COMMISSION .

7 ON 1 AUGUST 1979 THE COMMISSION DECIDED TO DISMISS THE APPLICANT WITH EFFECT FROM 1 SEPTEMBER 1979 . BY LETTER DATED 9 OCTOBER 1979 THE APPLICANT SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS CHALLENGING THE DRAWING UP AND CONTENT OF THE SECOND PROBATION REPORT , AND THE DECISION TO DISMISS HIM .

8 BY A LETTER OF 11 OCTOBER 1979 THE APPLICANT APPLIED FOR PAYMENT OF THE COMPENSATION PROVIDED FOR IN ARTICLE 34 OF THE STAFF REGULATIONS . THAT COMPENSATION , WHICH AMOUNT TO UKL 2 420.43 , WAS SENT TO HIM BY POST ON 23 NOVEMBER 1979 .

9 THE APPLICANT SEEKS : ( A ) THE ANNULMENT OF THE SECOND REPORT ON THE EXPIRY OF THE PROBATIONARY PERIOD DATED 6 JULY 1979 ; ( B ) THE ANNULMENT OF THE DECISION TO DISMISS HIM TAKEN ON 1 AUGUST 1979 ; ( C ) THE ANNULMENT OF THE DECISION REJECTING HIS COMPLAINT OF 9 OCTOBER 1979 ; ( D ) PAYMENT OF COMPENSATION TO COVER LOSS OF SALARY , THE EXPENSES INCURRED AS A RESULT OF HIS DISMISSAL AND NON-MATERIAL DAMAGE ESTIMATED AT BFR 300 000 OR , IN THE ALTERNATIVE , TO COVER THE EXPENSE INCURRED AS A RESULT OF THE FORFEITURE OF A LEASE IN BRUSSELS , EXPENSES INCURRED IN SEEKING ALTERNATIVE EMPLOYMENT AND NON-MATERIAL DAMAGE ESTIMATED AT BFR 500 000 IN RESPECT OF THE PRESENT AND CONTINUING REDUCTION IN THE APPLICANT ' S EARNING CAPACITY .

10 THE APPLICATION IS BASED FIRST ON THE INFRINGEMENT OF ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS OWING TO THE ABSENCE OF ANY JUSTIFICATION FOR THE DRAWING UP OF A SECOND REPORT , A FORTIORI WHEN THAT REPORT WAS NOT MADE WITHIN THE PERIOD PRESCRIBED BY THAT PROVISION , THAT IS TO SAY , ONE MONTH PRIOR TO THE EXPIRY OF THE PROBATIONARY PERIOD OR OF ANY EXTENSION THEREOF . A SECOND SUBMISSION RELATES TO THE PRESENCE OF IRREGULARITIES IN THE PREPARATION OF THE SECOND REPORT INASMUCH AS IT CONTAINS ASSERTIONS CALLING THE APPLICANT ' S CONDUCT IN QUESTION WITHOUT SHOWING EVIDENCE IN SUPPORT OF SUCH CONCLUSIONS . MR TITHER CLAIMS IN THIS RESPECT THAT ANY CRITICISM OF HIS CONDUCT SHOULD HAVE BEEN TREATED AS A DISCIPLINARY MATTER UNDER TITLE VI OF THE STAFF REGULATIONS . THIRDLY , THE APPLICANT ALLEGES VIOLATION OF GENERAL PRINCIPLES OF LAW AND , FINALLY , HE CLAIMS THAT THE DECISION TO DISMISS HIM IS VOID BECAUSE IT MAKES NO REFERENCE TO THE RECOMMENDATION THAT THE APPLICANT BE ESTABLISHED WHICH WAS CONTAINED IN THE FIRST REPORT ON THE EXPIRY OF THE PROBATIONARY PERIOD .

11 THE COMMISSION CONTENDS FIRST THAT THE ARGUMENT RELATING TO AN ALLEGED INFRINGEMENT OF ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS IS NOT WELL-FOUNDED ; IT CLAIMS THAT AS LONG AS THE PROBATIONARY PERIOD IS RUNNING A NEW REPORT MAY BE DRAWN UP AT ANY TIME . THE LEGISLATURE CERTAINLY DID NOT INTEND TO PREVENT THE APPOINTING AUTHORITY FROM REACTING , ON THE BASIS OF A SECOND REPORT COVERING THE PERIOD NOT DEALT WITH BY THE FIRST REPORT , TO CONDUCT ON THE PART OF THE PROBATIONARY OFFICIAL JUSTIFYING HIS DISMISSAL . THE RELEVANT PROVISION SHOULD BE UNDERSTOOD TO MEAN THAT THE REQUIREMENT THAT THE INSTITUTION PREPARE A REPORT ONE MONTH BEFORE THE EXPIRATION OF THE PROBATIONARY PERIOD IS INTENDED TO ENSURE THAT IT WILL HAVE AT ITS DISPOSAL ENOUGH TIME FOR A DECISION TO BE TAKEN WHICH WILL COINCIDE AS FAR AS POSSIBLE WITH THE DATE ON WHICH THE PROBATIONARY PERIOD , OR ANY EXTENSION THEREOF , EXPIRES .

12 IT IS TRUE THAT ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS PROVIDES THAT THE REPORT ON THE EXPIRY OF THE PROBATIONARY PERIOD IS TO BE DRAWN UP NOT LESS THAN ONE MONTH BEFORE THE EXPIRY OF THE PROBATIONARY PERIOD . THE PROVISION ENABLES THE REPORT TO BE SENT TO THE PERSON CONCERNED FOR ANY OBSERVATIONS HE MAY WISH TO MAKE AND ALLOWS THE APPOINTING AUTHORITY SUFFICIENT TIME TO STUDY THE REPORT IN ORDER TO MAKE ITS DECISION , ON THE EXPIRY OF THE PROBATIONARY PERIOD , AS TO WHETHER OR NOT THE PROBATIONARY OFFICIAL IS TO BE ESTABLISHED . IT SHOULD BE NOTED , HOWEVER , THAT THE PROBATIONARY PERIOD MAY BE EXTENDED , EVEN AFTER THE REPORT ON THE EXPIRY OF THE PROBATIONARY PERIOD HAS BEEN DRAWN UP , SO THAT TO INTERPRET THE STAFF REGULATIONS IN SUCH A WAY AS TO EXCLUDE ANY POSSIBILITY OF DRAWING UP A SECOND REPORT ON THE EXPIRY OF THE PROBATIONARY PERIOD SHOULD THE CONDUCT OR ABILITY OF THE PROBATIONARY OFFICIAL PROVE UNSATISFACTORY WOULD BE TOO RESTRICTIVE .

13 AS TO THE ARGUMENT TO THE EFFECT THAT THE SECOND REPORT WAS NOT DRAWN UP AT LEAST ONE MONTH BEFORE THE EXPIRY OF THE PROBATIONARY PERIOD BUT ALMOST ONE MONTH AFTER THAT PERIOD HAD ENDED , IT IS APPROPRIATE TO OBSERVE THAT THE COURT ( SECOND CHAMBER ) IN ITS JUDGMENT OF 12 JULY 1973 ( JOINED CASES 10 AND 47/72 DI PILLO ( 1973 ) ECR 763 ) STATED THAT WHILST IT IS TRUE THAT A DELAY IN MAKING THE REPORT CONSTITUTES AN IRREGULARITY HAVING REGARD TO THE EXPRESS REQUIREMENTS OF THE STAFF REGULATIONS , THIS IRREGULARITY IS NOT SUCH AS TO CALL IN QUESTION THE VALIDITY OF THE REPORT .

14 HOWEVER , IT IS UNDISPUTED THAT THE FIRST PROBATION REPORT , RECOMMENDING THE ESTABLISHMENT OF THE APPLICANT , WAS DRAWN UP ON 11 MAY 1979 , THAT THE APPLICANT WENT ON LEAVE ON 21 MAY ( THAT IS TO SAY , AFTER AN INTERVAL OF FIVE WORKING DAYS ), AND THAT THE SECOND PROBATION REPORT IS NOT BASED IN ANY WAY ON THAT PERIOD OF FIVE DAYS . IT CONCERNS SOLELY THE APPLICANT ' S CONDUCT AFTER 28 MAY , THE DATE ON WHICH HE WOULD NORMALLY HAVE HAD TO RETURN TO WORK . THE ESSENCE OF THE COMMISSION ' S COMPLAINT AGAINST THE APPLICANT IN THE REPORT IN QUESTION REDUCES ITSELF IN FACT TO HIS FAILURE TO JUSTIFY HIS ABSENCE ON AND AFTER THE MORNING OF MONDAY , 28 MAY 1979 . IN THE COMMISSION ' S VIEW THE APPLICANT FAILED TO ADHERE IN THAT REGARD TO THE REQUIREMENTS OF GOOD CONDUCT IN THE SERVICE .

15 AS FAR AS CONCERNS THE COMPLAINT THAT THE APPLICANT TOOK SPECIAL LEAVE FOR ELECTIONS , IT IS TO BE OBSERVED THAT THE APPLICANT ' S WRITTEN REQUEST WAS APPROVED BY THE APPROPRIATE AUTHORITY AND THAT THEREFORE THE COMPLAINT IS UNFOUNDED .

16 IT IS ALSO UNDISPUTED THAT THE FIRST MEDICAL CERTIFICATE , WHICH WAS DRAWN UP IN WALES ON 4 JUNE 1979 AND RECOMMENDED TWO WEEKS ' ABSENCE FROM WORK , WAS NOT RECEIVED BY THE COMMISSION ' S MEDICAL BRANCH UNTIL 18 JUNE 1979 . THE CERTIFICATE DATED 15 JUNE , WHICH SUPPORTED THE APPLICANT ' S ABSENCE UNTIL 6 JULY , WAS RECEIVED ON 22 JUNE . THE CERTIFICATE DATED 6 JULY 1979 SUPPORTING THE APPLICANT ' S ABSENCE UNTIL 21 JULY 1979 WAS RECEIVED ON 23 JULY 1979 . IT APPEARS , HOWEVER , THAT THE APPLICANT ' S SUPERIOR OFFICER , IN DRAWING UP THE SECOND PROBATION REPORT , FAILED TO INFORM HIMSELF FULLY AS TO THE REASONS FOR THE ABSENCE OF THE APPLICANT , WHO HAD SENT MEDICAL CERTIFICATES JUSTIFYING HIS ABSENCE . IT IS ALSO APPARENT THAT THE COMMISSION DID NOT , PRIOR TO TAKING A DECISION ON THE SECOND PROBATION REPORT , WHICH RECOMMENDED DISMISSAL , TAKE INTO ACCOUNT , BY WAY OF EXPLANATION , THE SUCCESSIVE MEDICAL REPORTS DECLARING THAT MR TITHER WAS UNFIT FOR WORK .

17 THEREFORE THE SECOND PROBATION REPORT , DATED 6 JULY 1979 , WHICH PROPOSES THAT THE APPLICANT BE DISMISSED WITHOUT GIVING ANY VALID GROUND FOR TAKING SUCH ACTION , MUST BE ANNULLED AND HENCE THE DECISION TO DISMISS THE APPLICANT , DATED 1 AUGUST 1979 , WHICH IS BASED ON THAT REPORT , MUST LIKEWISE BE ANNULLED .

18 IT IS FOR THE COMMISSION TO TAKE THE MEASURES NECESSARY TO CLARIFY THE APPLICANT ' S LEGAL POSITION , THE STAFF REGULATIONS BEING DESIGNED TO ENSURE THAT ON THE EXPIRY OF THE APPLICANT ' S PROBATIONARY PERIOD ANY UNCERTAINTY WITH REGARD TO HIS LEGAL POSITION SHALL BE REMOVED BY MEANS OF A DECISION OF THE APPOINTING AUTHORITY EITHER TO ESTABLISH HIM OR TO DISMISS HIM ON LAWFUL GROUNDS . THE COMMISSION IS NOT PRECLUDED FROM PREPARING A NEW REPORT ON EXPIRY OF THE PROBATIONARY PERIOD PRIOR TO TAKING A DECISION TO EITHER EFFECT , PROVIDED THAT SPECIAL CIRCUMSTANCES EXIST TO JUSTIFY SUCH A REPORT .

19 AS THE COMMISSION IS REQUIRED TO ADOPT THE MEASURES NECESSITATED BY THIS JUDGMENT THERE IS NO NEED TO GIVE A DECISION ON THE APPLICANT ' S SUBSIDIARY AND ADDITIONAL CLAIMS .

Decision on costs

COSTS

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

21 SINCE THE APPLICANT WAS GRANTED LEGAL AID BY THE COURT IN THE AMOUNT OF BFR 80 000 , THE COMMISSION MUST BE ORDERED TO REIMBURSE THAT SUM TO THE COURT AND TO BEAR THE OTHER EXPENSES INCURRED BY THE APPLICANT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE SECOND PROBATION REPORT , DATED 6 JULY 1979 , AND THE DECISION TO DISMISS THE APPLICANT , DATED 1 AUGUST 1979 ;

2.ORDERS THE COMMISSION TO PAY THE COSTS , REIMBURSING TO THE COURT THE SUM OF BFR 80 000 GRANTED TO THE APPLICANT BY WAY OF LEGAL AID .