Judgment of the Court (Second Chamber) of 5 April 1984. - José Alvarez v European Parliament. - Official - Dismissal - Unfavourable probation report - Contestation. - Case 347/82.



European Court reports 1984 Page 01847



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - RECRUITMENT - PROBATIONARY PERIOD - DISMISSAL - DISCRETION OF THE ADMINISTRATION - REVIEW BY THE COURT - LIMITS

( STAFF REGULATIONS , ART . 34 )

Summary

AS REGARDS DISMISSAL PURSUANT TO ARTICLE 34 OF THE STAFF REGULATIONS THE APPOINTING AUTHORITY HAS A WIDE DISCRETION AND THE COURT ' S POWER OF REVIEW EXTENDS ONLY TO MANIFEST ERRORS OR THE POSSIBILITY OF MISUSE OF POWERS .

Parties

IN CASE 347/82

JOSE ALVAREZ , FORMERLY A PROBATIONARY OFFICIAL OF THE EUROPEAN PARLIAMENT , RESIDING AT STRASSEN , REPRESENTED BY VICTOR BIEL , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18 A RUE DES GLACIS ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY MANFRED PETER , HEAD OF THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION , ASSISTED BY ALEX BONN , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE SECOND DECISION ( DATED 6 DECEMBER 1982 ) TO DISMISS THE APPLICANT AND FOR DAMAGES OF AT LEAST BFR 500 000 ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 29 DECEMBER 1982 , MR ALVAREZ , A FORMER PROBATIONARY OFFICIAL OF THE EUROPEAN PARLIAMENT , BROUGHT AN ACTION FOR ANNULMENT OF THE DECISION TO DISMISS HIM TAKEN BY THE DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS OF THE EUROPEAN PARLIAMENT ON 6 DECEMBER 1982 AND ALSO FOR COMPENSATION FOR THE NON-MATERIAL DAMAGE SUFFERED BY HIM AS A RESULT OF THAT DECISION .

2 BY JUDGMENT OF 5 OCTOBER 1982 ( CASE 206/81 ( 1982 ) ECR 3369 ), THE COURT ( THIRD CHAMBER ) ANNULLED THE FIRST DECISION TO DISMISS THE APPLICANT , WHICH HAD BEEN TAKEN ON 19 JUNE 1981 , ON THE GROUND THAT , BY FAILING TO COMMUNICATE TO THE APPLICANT ALL THE DOCUMENTS UNDERLYING ITS DECISION , AND , IN PARTICULAR THREE MEMORANDA SUPPLEMENTARY TO THE PROBATION REPORT , THE PARLIAMENT HAD FAILED TO RESPECT THE ADVERSARY PROCEDURE PROVIDED FOR UNDER ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS .

3 FOLLOWING THAT JUDGMENT , THE PARLIAMENT RECOMMENCED THE DISMISSAL PROCEDURE BY COMMUNICATING TO THE APPLICANT THE PROBATION REPORT TOGETHER , THIS TIME , WITH THE THREE SUPPLEMENTARY MEMORANDA . AFTER GIVING THE APPLICANT THE OPPORTUNITY TO SUBMIT COMMENTS , THE PARLIAMENT TOOK A NEW DECISION DISMISSING HIM , THEREBY REJECTING HIS REPEATED REQUESTS TO THE EFFECT THAT THE PARLIAMENT WAS OBLIGED TO REINSTATE HIM IN COMPLIANCE WITH THE JUDGMENT OF 6 OCTOBER 1982 .

4 AT THE SAME TIME AS HE BROUGHT THIS ACTION , THE APPLICANT SUBMITTED AN INTERIM APPLICATION TO SUSPEND THE CONTESTED DECISION . THAT APPLICATION WAS DISMISSED BY ORDER OF 17 JANUARY 1983 OF THE PRESIDENT OF THE SECOND CHAMBER (( 1983 ) ECR 65 ).

5 AFTER BRINGING HIS ACTION AGAINST THE NEW DISMISSAL DECISION , THE APPLICANT NEVERTHELESS CONTINUED TO MAKE REPRESENTATIONS TO THE PARLIAMENT ADMINISTRATION CONCERNING ITS COMPLIANCE WITH THE JUDGMENT OF 6 OCTOBER 1982 , AND ON 3 MARCH 1983 HE LODGED AN APPLICATION FOR THE INTERPRETATION OF THAT JUDGMENT , WHICH THE COURT ( SECOND CHAMBER ) DISMISSED BY ORDER OF 29 SEPTEMBER 1983 .

6 IN HIS APPLICATION , MR ALVAREZ CONTENDS ESSENTIALLY THAT BY PROCEEDING IN THE MANNER DESCRIBED ABOVE THE PARLIAMENT HAS REFUSED TO COMPLY WITH THE FIRST JUDGMENT OF THE COURT ; THAT , THEREFORE , THE SECOND DISMISSAL CONSTITUTED A REPUDIATION OF THE AUTHORITY OF THE COURT OF JUSTICE , AND , MOREOVER , A MISUSE , OR AT LEAST AN IMPROPER USE , OF POWERS ; THAT IF THE COURT UPHELD THE SECOND DISMISSAL IT WOULD HAVE TO GO BACK ON ITS EARLIER DECISION AND ALLOW CERTAIN CRITICISMS WHICH HAD BEEN DISMISSED BY THE JUDGMENT OF 6 OCTOBER 1982 TO BE USED AGAIN FOR THE SAME ENDS , WHICH WOULD ALSO BE AN INFRINGEMENT OF PROCEDURAL RULES AND A BREACH OF THE PRINCIPLE OF LEGAL CERTAINTY . HOWEVER , AT THE SITTING THE APPLICANT WITHDREW THE LINE OF ARGUMENT BASED ON MISUSE OF POWERS .

7 THE PARLIAMENT CONTESTS ALL THOSE SUBMISSIONS , CONTENDING ESSENTIALLY THAT , SINCE THE EFFECT OF THE JUDGMENT OF 6 OCTOBER 1982 WAS TO PUT THE PARTIES BACK IN THE SAME POSITION AS THEY WERE IN BEFORE THE DISMISSAL THAT WAS SUBSEQUENTLY ANNULLED , THE PARLIAMENT HAD TO MAKE GOOD THE PROCEDURAL DEFECT CRITICIZED IN THE COURT ' S DECISION . CONSEQUENTLY , THE FIRST JUDGMENT HAD NOT FOUND THAT THE SUPPLEMENTARY MEMORANDA COULD NOT BE RELIED ON , AND IT WAS NOT THE PARLIAMENT THAT HAD FAILED TO COMPLY WITH THE JUDGMENT BUT THE APPLICANT , BY FAILING TO SUBMIT HIS COMMENTS . UNDER THOSE CIRCUMSTANCES , THERE HAD BEEN NO REPUDIATION OF THE AUTHORITY OF THE COURT OF JUSTICE AND LIKEWISE NO MISUSE OR IMPROPER USE OF POWERS .

8 IT SHOULD BE EXAMINED FIRST WHETHER THE PARLIAMENT COMPLIED CORRECTLY WITH THE JUDGMENT OF 6 OCTOBER 1982 .

9 AS HAS ALREADY BEEN OBSERVED IN THE ORDER OF 17 JANUARY 1983 , THE COURT , BY ITS JUDGMENT OF 6 OCTOBER 1982 , ANNULLED THE FIRST DISMISSAL ON THE BASIS OF THE FAILURE TO RESPECT THE ADVERSARY PROCEDURE PROVIDED FOR UNDER ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS . THE APPLICANT HIMSELF ACKNOWLEDGED AT THE SITTING THAT THE EFFECT OF THE ANNULMENT OF THE FIRST DISMISSAL WAS TO RESTORE THE STATUS QUO ANTE . ACCORDINGLY , BY REMITTING TO THE APPLICANT ALL THE PAPERS ON WHICH HIS DISMISSAL IS BASED , INCLUDING ALL THE DOCUMENTS NOT PREVIOUSLY COMMUNICATED TO HIM , THE PARLIAMENT COMPLIED IN THAT REGARD WITH THE JUDGMENT OF 6 OCTOBER 1982 .

10 CONSEQUENTLY THAT ARGUMENT MUST BE DISMISSED .

11 SECONDLY , IT SHOULD BE EXAMINED WHETHER , BY USING AGAIN THE SAME DOCUMENTS ON WHICH THE FIRST DISMISSAL HAD BEEN BASED , THE PARLIAMENT REPUDIATED THE AUTHORITY OF THE COURT ' S FIRST DECISION AND INFRINGED THE PROCEDURAL RULES .

12 IN THE JUDGMENT OF 6 OCTOBER 1982 , THE COURT EMPHASIZED THE IMPORTANCE OF COMMUNICATING THE MEMORANDA SUPPLEMENTARY TO THE PROBATION REPORT ; NEVERTHELESS IT DID NOT ANNUL THE PROBATION REPORT AS THE APPLICANT HAD REQUESTED AT THE TIME .

13 IN THOSE CIRCUMSTANCES , THE PARLIAMENT CANNOT BE SAID TO HAVE DISREGARDED THE AUTHORITY OF THE FIRST JUDGMENT WHEN IT RECOMMENCED THE DISMISSAL PROCEDURE AND ASKED THE APPLICANT TO SUBMIT HIS COMMENTS ON THE SUPPLEMENTARY MEMORANDA IN QUESTION .

14 IT SHOULD BE BORNE IN MIND AS REGARDS THE ALLEGED INFRINGEMENT OF THE RULES GOVERNING THE PROCEDURE AND BREACH OF THE PRINCIPLE OF LEGAL CERTAINTY THAT , IN ITS JUDGMENT OF 6 OCTOBER 1982 , THE COURT DID NOT RULE ON THE SUBSTANCE OF THE CRITICISMS SET OUT IN THE SUPPLEMENTARY MEMORANDA ; CONSEQUENTLY , IT CANNOT BE SAID THAT THE PARLIAMENT WAS AT FAULT ON THE GROUND THAT , BY COMMUNICATING THE MEMORANDA TO THE APPLICANT , IT REVIVED CRITICISMS THAT HAD PREVIOUSLY BEEN DISMISSED BY THE COURT .

15 CONSEQUENTLY , THE WHOLE OF THAT LINE OF ARGUMENT MUST ALSO BE DISMISSED .

16 LASTLY , THE APPLICANT ' S ARGUMENT CONTESTING THE THREE SUPPLEMENTARY MEMORANDA MUST ALSO BE DISMISSED . THE WHOLE OF THE APPLICANT ' S ARGUMENT IN THIS RESPECT IS RESTRICTED TO ALLEGATIONS THAT WERE ALREADY MADE IN THE FIRST CASE AND TO CONTESTING THE MEMORANDA AND ASSESSMENTS OF THE APPLICANT ' S IMMEDIATE SUPERIOR , TO WHICH TWO OF THE THREE SUPPLEMENTARY MEMORANDA REFER . FURTHERMORE , THE APPOINTING AUTHORITY HAS A WIDE DISCRETION AS REGARDS DISMISSAL PURSUANT TO ARTICLE 34 AND THE COURT ' S POWER OF REVIEW EXTENDS ONLY TO MANIFEST ERRORS OR THE POSSIBILITY OF MISUSE OF POWERS . IN THIS CASE , HOWEVER , THE APPLICANT HIMSELF DOES NOT CLAIM THAT THERE WAS MANIFEST ERROR . THIS BEING SO , IT MUST BE HELD THAT THE APPLICANT HAS BEEN UNABLE TO REBUT THE ALLEGATION THAT THE STANDARD OF ABILITY SHOWN BY HIM WAS NOT SUFFICIENT TO JUSTIFY HIS ESTABLISHMENT .

17 FOR THE ABOVE REASONS , THE APPLICATION MUST BE DISMISSED , INCLUDING THE APPLICATION FOR COMPENSATION FOR NON-MATERIAL DAMAGE .

Decision on costs

COSTS

18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THOSE RULES , COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS THEMSELVES .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS INCLUDING THOSE OF THE INTERIM APPLICATION .