Judgment of the Court (First Chamber) of 29 September 1983. - Hilde de Bruyn v European Parliament. - Probationary official - Dismissal. - Case 223/82.



European Court reports 1983 Page 02879



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - RECRUITMENT - PROBATIONARY PERIOD - DISMISSAL

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

Parties

IN CASE 223/82

HILDE DE BRUYN , A FORMER PROBATIONARY OFFICIAL OF THE EUROPEAN PARLIAMENT , OF 32 RUE JEAN L ' AVEUGLE , LUXEMBOURG , REPRESENTED BY VICTOR BIEL OF THE LUXEMBOURG BAR , 18 A RUE DES GLACIS , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY MARTIN SCHMIDT , DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS , ACTING AS AGENT , ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR , 22 COTE D ' EICH , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS ,

DEFENDANT ,

Subject of the case

APPLICATION PRIMARILY FOR THE ANNULMENT OF THE APPLICANT ' S REPORT MADE AT THE EXPIRY OF THE PROBATIONARY PERIOD AND OF HER DISMISSAL , AND FOR DAMAGES ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 23 AUGUST 1982 MISS DE BRUYN , A PROBATIONARY OFFICIAL OF THE EUROPEAN PARLIAMENT , BROUGHT AN ACTION FOR THE ANNULMENT OF HER PROBATIONARY REPORT AND OF THE DECISION DISMISSING HER ON THE BASIS OF THAT REPORT , FOR AN ORDER THAT SHE IS ENTITLED , ACCORDINGLY , TO HER SALARY , EMOLUMENTS AND ALLOWANCES FROM THE DATE OF HER DISMISSAL , 28 FEBRUARY 1982 , AND FOR THE PAYMENT OF DAMAGES FOR THE NON-MATERIAL HARM WHICH SHE HAS SUFFERED .

2 AS A RESULT OF OPEN COMPETITION NO PE/58/LA FOR THE RECRUITMENT OF DUTCH-LANGUAGE TRANSLATORS TO THE DIRECTORATE-GENERAL OF SESSIONAL AND GENERAL SERVICES AND BY DECISION OF THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT OF 30 MARCH 1981 , MISS DE BRUYN WAS APPOINTED A PROBATIONARY OFFICIAL IN GRADE LA 7 WITH EFFECT FROM 1 MARCH 1981 . IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 34 ( 1 ) OF THE STAFF REGULATIONS OF OFFICIALS , SHE WAS REQUIRED TO COMPLETE A PROBATIONARY PERIOD OF NINE MONTHS EXTENDING FROM 1 MARCH TO 30 NOVEMBER 1981 .

3 AN UNFAVOURABLE PROBATIONARY REPORT DATED 28 OCTOBER 1981 WAS TRANSMITTED TO THE APPLICANT , WHO SIGNED IT ON 4 NOVEMBER 1981 . AT THE SAME TIME SHE REFERRED TO COMMENTS WHICH SHE INTENDED TO SUBMIT AT A LATER DATE . IN THOSE COMMENTS , DATED 11 DECEMBER 1981 , THE APPLICANT REFUTED THE COMPLAINTS WHICH WERE DIRECTED AGAINST HER AND REQUESTED AN EXTENSION OF HER PROBATIONARY PERIOD ON THE GROUND THAT SHE HAD BEEN ABSENT ( ON SICK LEAVE ) AND HAD THUS BEEN UNABLE TO DEMONSTRATE HER PROFESSIONAL ABILITIES TO THE FULL .

4 THE SECRETARY-GENERAL OF THE PARLIAMENT INFORMED THE APPLICANT ON 9 FEBRUARY 1982 BY REGISTERED LETTER OF HIS DECISION TO DISMISS HER WITH EFFECT FROM 28 FEBRUARY 1982 AS A RESULT OF HER UNFAVOURABLE PROBATIONARY REPORT RECOMMENDING DISMISSAL .

5 THE APPLICANT ' S REPRESENTATIVE SUBMITTED A COMPLAINT AGAINST THE PROBATIONARY REPORT AND THE APPLICANT ' S RESULTING DISMISSAL , A COMPLAINT WHICH WAS SUPPLEMENTED BY LETTER OF 26 MAY 1982 .

6 THE COMPLAINT WAS DISMISSED BY LETTER OF 16 JULY 1982 FROM THE SECRETARY-GENERAL OF THE PARLIAMENT .

7 IN THE PROBATIONARY REPORT THE COMMENT ' ' UNSATISFACTORY ' ' WAS ENTERED UNDER THE FOLLOWING SEVEN HEADINGS : ( A ) KNOWLEDGE NECESSARY FOR THE WORK , ( B ) JUDGMENT AND ABILITY TO ADAPT , ( C ) INITIATIVE , ( D ) ABILITY TO ORGANIZE , ( E ) SENSE OF RESPONSIBILITY AND DEVOTION TO WORK , ( F ) QUALITY OF WORK AND ( G ) PUNCTUALITY . THAT ASSESSMENT WAS SUPPORTED BY A MEMORANDUM DRAWN UP BY MR VAN MULDERS , HEAD OF THE DUTCH TRANSLATION DIVISION , AND SIGNED BY MR HAARSMA , A LINGUISTIC ADVISER , AND MR VAN HEEL , A REVISER , TO RECORD THEIR AGREEMENT . THE MEMORANDUM INCLUDED THE FOLLOWING PASSAGE :

' ' THE COMPLAINTS WHICH WE HAVE IN RESPECT OF THIS PERSON MAY BE SUMMARIZED AS FOLLOWS :

LACK OF INSIGHT AND GENERAL CULTURE RESULTING IN A FAILURE TO UNDERSTAND TEXTS PROPERLY .

CARELESS AND NONCHALANT CONDUCT : ON SEVERAL OCCASIONS HER THOUGHTLESSNESS ALMOST UPSET THE SMOOTH RUNNING OF THE DIVISION .

LACK OF INITIATIVE AND DEDICATION TO HER WORK : SHE HAS NOT MANAGED TO ACQUIRE AN ADEQUATE UNDERSTANDING OF HOW THE INSTITUTIONS WORK OR OF THE MOST ELEMENTARY CONCEPTS AND TERMS USED IN THE PARLIAMENT : IN ADDITION SHE IS SLOW IN HER WORK .

FAILURE TO WORK HARD ENOUGH AND POOR PUNCTUALITY .

LACK OF ORDER IN HER WORK . ' '

8 THE REPORT , WHICH WAS DATED 28 OCTOBER 1981 , WAS SIGNED BY MR PALMER , FOR THE DIRECTOR-GENERAL .

9 THE APPLICANT RAISES VARIOUS OBJECTIONS IN RESPECT OF THE REPORT . IT WAS PREMATURE , INASMUCH AS IT WAS DRAWN UP ON 21 SEPTEMBER 1981 , THAT IS TO SAY MORE THAN TWO MONTHS BEFORE THE END OF THE PROBATIONARY PERIOD . IT STATED , WRONGLY , THAT THE APPLICANT HAD COMPLETED TWO YEARS OF HIGHER EDUCATION , INSTEAD OF THE FOUR YEARS WHICH SHE HAD ACTUALLY COMPLETED . THE STATEMENT OF GROUNDS FOR THE ASSESSMENT OF VARIOUS ASPECTS OF HER WORK AS ' ' UNSATISFACTORY ' ' DID NOT SUFFICIENTLY CLARIFY THE WAY IN WHICH THE APPLICANT FAILED TO FULFIL HER DUTIES . THERE WAS A CONTRADICTION INASMUCH AS UNDER THE HEADING ' ' EFFICIENCY ' ' , HER ' ' SPEED OF EXECUTION ' ' WAS STATED TO BE SATISFACTORY , WHILST IN THE EXPLANATORY NOTE THE COMPLAINT WAS MADE THAT THE APPLICANT WAS ' ' SLOW IN HER WORK ' ' . MRS KROON , A REVISER , WAS NOT CONSULTED ; AND THE REPORT WAS NOT SIGNED BY THE DIRECTOR WITH AUTHORITY TO DO SO .

10 THE APPLICANT CLAIMS IN ADDITION THAT THE DEFENDANT FAILED TO FULFIL ITS DUTY TO ASSIST HER AND FRUSTRATED THE LEGITIMATE EXPECTATION WHICH THE APPLICANT WAS ENTITLED TO HAVE OF THE ADMINISTRATION . THROUGHOUT THE ENTIRE PROBATIONARY PERIOD SHE RECEIVED NO WRITTEN OR ORAL OBSERVATION WHICH COULD HAVE LED HER TO BELIEVE THAT A DECISION DISMISSING HER WAS IMMINENT .

11 FINALLY , THE APPLICANT CLAIMS THAT THE DEFENDANT TOOK THE DECISION TO DISMISS HER IN ORDER TO FACILITATE THE RECRUITMENT OF ANOTHER SPECIFIED TRANSLATOR AS AN OFFICIAL . THERE WAS THEREFORE A MISUSE OF POWERS .

12 IT APPEARS THAT THE REPORT IS COMPOSED OF TWO PARTS . THE FIRST PART , WHICH INCLUDES INFORMATION WHICH HAS NO BEARING ON THE PROBATIONARY PERIOD , WAS FILLED IN BY THE PERSONNEL DIVISION ON 21 SEPTEMBER 1981 . THAT PART CONTAINS THE ERROR CONCERNING THE LENGTH OF TIME SPENT BY THE APPLICANT IN HIGHER EDUCATION . ALTHOUGH THAT PART OF THE REPORT DOES INDEED CONTAIN AN ERROR IT DOES NOT APPEAR THAT THE ERROR HAD ANY SIGNIFICANT BEARING ON THE ASSESSMENT OF THE APPLICANT ' S ABILITIES WHICH REPRESENTS THE MAIN PART OF THE REPORT .

13 THE MAIN PART OF THE REPORT WAS DRAWN UP AT THE END OF OCTOBER 1981 AND IS DATED 28 OCTOBER .

14 IT FOLLOWS THAT THE TWO OBJECTIONS RELATING TO THE DATE ON WHICH THE REPORT WAS DRAWN UP AND THE ERROR CONCERNING THE LENGTH OF TIME SPENT IN HIGHER EDUCATION MUST BE DISREGARDED .

15 AS REGARDS THE STATEMENT OF GROUNDS IN THE REPORT , IT IS TRUE THAT A SINGLE EXPLANATORY NOTE COVERS THE SEVEN HEADINGS UNDER WHICH THE HEADING ' ' UNSATISFACTORY ' ' WAS ENTERED . HOWEVER , IT INCLUDES PRECISE ASSESSMENTS OF THE APPLICANT ' S ABILITIES AND CONSTITUTES AN ADEQUATE STATEMENT OF GROUNDS WHICH CANNOT BE REGARDED AS BEING INSUFFICIENT .

16 THE DEFENDANT DOES NOT DENY THAT THERE MAY BE A CONTRADICTION BETWEEN THE COMMENT ' ' SATISFACTORY ' ' CONCERNING SPEED OF EXECUTION AND THE OBSERVATION THAT SHE WAS ' ' SLOW IN HER WORK ' ' . IT SEEMS NEVERTHELESS THAT THE LATTER OBSERVATION REFERS TO THE APPLICANT ' S CONDUCT , AND MORE SPECIFICALLY TO HER LACK OF DEDICATION TO HER WORK , RATHER THAN TO HER CAPACITY TO CARRY OUT HER WORK WITH THE REQUIRED SPEED . IN ANY EVENT EVEN IF THAT CRITICISM MUST BE DISREGARDED OTHER , SUFFICIENTLY PRECISE CRITICISMS STILL JUSTIFY HER DISMISSAL .

17 AS FAR AS THE ALLEGED FAILURE TO CONSULT MRS KROON IS CONCERNED , IT IS ENOUGH TO OBSERVE THAT SYSTEMATIC CONSULTATION OF ALL THE REVISERS IS NOT OBLIGATORY AND THAT IT WAS FOR THE HEAD OF DIVISION TO DECIDE WHICH REVISERS WERE IN THE BEST POSITION TO ASSESS THE APPLICANT ' S WORK DURING HER PROBATIONARY PERIOD .

18 AS REGARDS THE COMPLAINT CONCERNING THE AUTHORITY OF MR VAN MULDERS TO SIGN THE REPORT , IT SEEMS THAT THE INTERNAL RULES OF THE PARLIAMENT DO NOT SPECIFY WHICH OFFICIAL MUST DRAW UP THE REPORT . IT APPEARS THAT THE ESTABLISHED PRACTICE OF THE PARLIAMENT IS FOR THE REPORT TO BE PREPARED BY THE DIRECTOR OF THE RELEVANT DIRECTORATE . AT THE MATERIAL TIME THERE WAS NO DIRECTOR OF THE TRANSLATION AND TERMINOLOGY DIRECTORATE IN THE PARLIAMENT , AND CONSEQUENTLY THE REPORT WAS PREPARED BY THE HEAD OF DIVISION TO WHICH THE APPLICANT BELONGED . IT WAS SIGNED BY THE DIRECTOR-GENERAL AND RECOMMENDED THAT THE OFFICIAL BE DISMISSED . THAT OBJECTION MUST THEREFORE BE DISREGARDED .

19 AS TO THE OBJECTION CONCERNING THE DEFENDANT ' S DUTY TO ASSIST AND THE ALLEGED BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION , IT APPEARS FROM THE FILE THAT THE APPLICANT WAS WARNED ON 2 JUNE 1981 THAT HER WORK WAS NOT SATISFACTORY , AND LATER , ON 7 SEPTEMBER 1981 , THAT HER PROGRESS WAS INADEQUATE AND THAT AN UNFAVOURABLE PROBATIONARY REPORT WHICH WOULD LEAD TO HER DISMISSAL MIGHT BE DRAWN UP . CONSEQUENTLY , THE INSTITUTION CANNOT BE ACCUSED OF HAVING FAILED TO FULFIL ITS DUTY IN THAT RESPECT .

20 AS REGARDS THE ALLEGED MISUSE OF POWERS , FINALLY , THE APPLICANT HAS FAILED TO PRODUCE THE SLIGHTEST EVIDENCE IN SUPPORT OF THAT SUBMISSION . THE PERSON ALLUDED TO WAS APPOINTED AN OFFICIAL ON 5 OCTOBER 1981 , THAT IS TO SAY , MORE THAN FOUR MONTHS BEFORE THE APPLICANT ' S DISMISSAL , AND HE WAS APPOINTED TO ANOTHER POST .

21 IN VIEW OF THOSE CONSIDERATIONS , THE VARIOUS SUBMISSIONS ADVANCED BY THE APPLICANT MUST BE REJECTED . THE APPLICATION MUST THEREFORE BE DISMISSED .

Decision on costs

COSTS

22 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , 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 EACH PARTY TO BEAR ITS OWN COSTS .