OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 27 JUNE 1973 ( 1 )

Mr President,

Members of the Court,

The present joined cases concerning the dismissal of a probationer of the Commission are easy to solve as regards the purely legal aspects related to the claims for annulment of the contested decisions. But having regard to the facts, I do not consider that the Court has sound evidence on which it can refuse the claim for damages under every head. The facts forming the basis of the dispute are simple. They have already been pointed out to you in the clear outline presented by the Judge-Rapporteur. I will limit myself to recalling the main points.

Because of his studies and his professional experience in agriculture, Dr Di Pillo was engaged as a probationer with the Commission on 1 March 1971 in grade A 3 in the post of Head of the ‘Cattle and Meat Division’ of the Directorate-General of Agriculture.

The report on the official's ability to perform the duties pertaining to his post, which by Article 34 of the Staff Regulations must be made by the fifth month following his engagement as probationer, was only completed on 4 November 1971. Altough it drew attention ot various important failings of the probationer, it suggested an extension of the probationary period by three months so as to allow a final assessment of his ability.

The appeal lodged on 18 November by the probationer, who objected to the unfavourable opinions expressed in the report and in addition pointed out its lateness, was rejected by the Commission in a letter dated 7 December, which reached him on 13 December. In the letter the Commission informed Di Pillo of its intention to dismiss him following the unfavourable opinion on the abovementioned report, and invited him to submit his comments on the matter by 15 December. On 14 December the applicant objected to the proposed dismissal and once more disputed generally the assessments made about him in the report of 4 November.

On 21 December 1971 the Commission decided to dismiss him with effect from 1 February 1972. An administrative appeal was made against this Decision on 3 March 1972, to which the Commission did not reply.

In July 1972 the applicant's post was taken by an official transferred from another of the Commission's departments.

Although in form the two appeals have different objects, they seek to attain the same purpose. So, following the amendment of the submissions made by the applicant's lawyer, who has abandoned the claim that the applicant should be immediately established, the appeals have two objects in view.

The first is the applicant s reinstatement in the post he previously held (i.e. probationer), and the second (raised as a subsidiary plea) is the claim for damages suffered arising from the failure to establish him.

In support or his applications tor annulment brought against the Commission's rejection of his complaint against the end of probation report (Case 10/72) and against the consequent decision to dismiss him (Case 47/72), the applicant alleges as his first argument an irregularity in the probationary period, based on the lateness of the relevant report. This report is in fact dated 4 November 1971 whereas according to the Regulations the probationary period ended on 31 August 1971; so to comply with Article 34 (2) of the Staff Regulations the report should have been ready by 31 July 1971 at the latest. The applicant points out that establishing this irregularity would be in his interests because if the report had been made on the date prescribed in the Regulations it would in all probability have been in his favour, since up to mid-October his superiors had not commented adversely on his performance.

In the judgment in Case 52/70 (Nagels v Commission, Rec. 1971, p. 365), the Court rejected a similar argument seeking to invalidate an order of dismissal following the probationary period. The applicant in that case based his argument on the lateness of the order preceded by an end of probation report which was itself drawn up late. The Court observed that Article 34, contemplating the case where dismissal follows the probationary period, fixes no deadline for the dismissal itself. But this judgment does recognize the necessity for the Commission to act with a certain promptness in this matter (see paragraph 23). The Court found in that case that the Commission had acted with the required promptness since the probationary period, which had originally expired at the end of August 1969 and had been preceded by a report issued in accordance with the Regulations one month before, had then been expressly extended up to 31 January 1970, and the decision to dismiss dated the following 11 February had been promptly communicated to the person concerned (five days later).

The present case differs from the one thus decided because here there was no formal decision to extend the probationary period. However, there is nothing to contradict the assumption that there was an implied decision to this effect, all the more so because in the present case it can be reasonably presumed that the delay in drawing up the report arose from the intention of his immediate superiors to come to a more definite opinion by giving him a further opportunity to prove his ability and aptitude. Even if the prolonged absence of any formal decision could have misled the probationer as to his permanence in the service, (the importance of which we shall discuss later), the extension of the probationary period does not seem to be against the interests of the service since, as is freely admitted by the applicant, his post involved very complicated duties such as to justify a probationary period longer than normal. As the applicant himself contends (holidays and frequent missions having prevented the full use of his time at the office), it was all the more necessary to allow him to adapt completely to this post and above all to prove his aptitude. In a sound administration of justice, a more thorough examination of a situation can never be alleged as a ground of invalidity! Having regard to this last point, the applicant contends that the probationary period was really too short. The applicant's assertion does not formally contradict his remarks on the lateness of the end of probation report, but it confirms the usefulness of the extension in practice made.

Having regard to an these factors, the plea of illegality raised by the applicant as to the delay in the final report appears unfounded. The irregularity consisting in a tacit extension of the probationary period (whose trifling nature speaks for itself) thus cannot here justify the annulment of the end of probation report, nor, consequently, the subsequent decision to dismiss him.

Secondly the applicant objects to the irregular nature of the dismissal.

We nave seen that, according to the judgment in Case 52/70, the administrative authority must adopt and communicate within a reasonable time its decision to dismiss following the unfavourable outcome of the probationary period. In the present case, against the final report dated 4 November the applicant lodget a complaint on the following 8 November, to which the Commission replied in a letter dated 7 December. This letter gave a warning of the dismissal likely to follow the end of probation report. The decision to dismiss was communicated by letter on the following 21 December and came to the knowledge of the applicant on 17 January 1972. The Commission does not appear to be responsible for the delay occurring between the adoption of the decision to dismiss and its reception by the probationer, since the decision was dispatched by registered letter on 23 December 1971, and on that same day delivery to the addressee was attempted, as can be seen from the stamp affixed on the form for acknowledgement of receipt. The applicant himself states that at such time he was not at his residence in Brussels, and for this reason the letter had to be delivered to him directly after his return on the following 17 January by an official of the Commission.

So the applicant's second criticism against the Commission also appears unfounded.

Nor can it be asserted, as does the applicant, that the rights of defence were infringed by the rejection of his appeal in a letter of the Commission dated 8 November which reached him on 13 December 1971 and left him too short a time in which to present any possible comments (by 15 December). In respect of the above argument it is sufficient to point out that once the applicant has had the opportunity to submit his comments on an unfavourable end of probation report, the administrative authority, before adopting a decision to dismiss, is not obliged to hear the provationer a second time.

When the Commission considers it opportune — as in this case — to give the probationer the opportunity to submit his comments beforehand then it is also certainly a good rule to give him a suitable period of time for so doing. Yet it seems to me that your judgment in Case 19/70 (Almini) cannot be invoked here. It was decided there that four days is an inadequate time limit for an official in proceedings aimed at his retirement in the interests of the service under Article 50 of the Staff Regulations. As to dismissal following the probationary period, the Administration in fact holds no discretionary power comparable to that conferred on it for ‘retirement from office’ under the rule in Article 50. The result is that the conditions needed to protect the interests of a probationer in respect of whom an unfavourable report has been made are in fact different, and this is especially the case where the probationer has had all the time necessary to present his comments in writing. It is true that the author of this report did not propose dismissal, but opted for a three-month extension of the probationary period to give time for a definitve opinion on the probationer. The Commission, however, considering that the opinion expressed showed clearly that the applicant had not showed his work to be of a sufficient standard for establishment, and that it followed from this assessment that an extension of the probationary period as proposed by the Director-General of Agriculture could not have given the probationer any real chance of substantially changing the original opinion, decided to go ahead with his dismissal without any further delay.

There is no need to discuss here the substance of the individual remarks which make up the decision; it is sufficient to notice that at the end of the probationary period the Commission, when faced with an unfavourable opinion on the ability of the official by the competent authority, is in no way obliged to accept the proposal to grant him an extension. On the contrary, it can clearly be seen from the wording of the last sentence of the first paragraph of Article 34 (2) that an extension in the case of an adverse end of probation report would be a completely abnormal procedure. For this reason, the Commission by dismissing him merely complied with the general rule.

The applicant's allegations aimed at proving a misuse of powers, based on suppositions shown to be unfounded (presumed change in the attitude of the Commission with a view to granting the post to be held to an official of a different nationality, whereas an official of the applicant's nationality was subsequently appointed to the post), are not based on any serious and convincing evidence.

Consequently the applications for annulment must be dismissed as unfounded, along with the other claims inseparably connected with them.

The claim for damages

The claim for damages must be rejected as regards the heads relating to acts completed by the applicant before the expiry of the date prescribed for the completion of the probationary period. By the very nature of things, before the end of the probationary period an official is in a precarious position. Consequently all the expenses incurred by him in view of his expected establishment cannot engage the Administration's reponsibility when it dismissed him in accordance with the Regulations.

On the other hand, serious doubts emerge as regards certain events occurring after the expiry of the probationary period. As has been established, the delay in presenting the relevant report, even without giving any explanation to the probationer, does not constitute an irregularity involving the illegality of the decision to dismiss. The objective difficulties which the applicant's immediate superiors faced in forming a sufficiently accurate idea of his aptitude so as to be able to make out the end of probation report (difficulties which are demonstrated also by the proposal contained in the report in dispute to extend the probationary period) account for their hesitancy and delay. But as to the damage suffered by the applicant through a sense of security which they allowed him to develop concerning the opinion to be given at the end of the probationary period, here the claim for compensation could be regarded as on a different basis and thus perhaps be decided differently.

Although we have seen that the time limit laid down for drawing up the final opinion on the probationer is not strict, yet it cannot be denied that legally such a limit does exist. If at the end of such time there is no warning by superiors of the unfavourable result of the probationary period and if according to the applicant's argument one were to include in addition the existence of a series of factors liable to lead him to an opposite conclusion, then one cannot lawfully refuse damages which arise out of a state of affairs clearly the opposite of that which he was lead to believe existed. There is certainly a principle common to all Member States that where an idividual induces in others (with whom he has a relationship) a sense of security contrary to reality, then a state of culpability is recognized to exist, sufficient to found an action for damages in favour of the party who has incurred debts or needless expenses on the basis of such reliance.

The defendant alleges however that Director Amiet, the applicant's immediate superior, had made some remarks to him around the middle of July 1971 which forewarned him of the tenor of the end of probation report. The applicant contends on the other hand that they were remarks of constructive criticism, completely normal in a probationer's training. They were in no case such as to give him any reasonable indication that his superiors entertained serious doubts concerning his establishment after the probationary period.

The applicant alleges several subsequent events, not proved during the proceedings but put in evidence by the applicant and not contested in any convincing manner by the opposing party. They may confirm the truth of the assertion that, in the absence of an end of probation report drawn up within the time specified in the Regulations, the behaviour of his superiors towards him could not have led him to believe that they would produce an unfavourable report. There is above all the advice given by Director Amiet to the applicant (who was interested in finding a post for his wife with the Commission) to apply to an official of the cabinet of an Italian Member. There is also the refusal given in October by the very same Director Amiet to the applicant's request for an additional period of holiday at the end of the year, a refusal based on the alleged requirements of the service. And there is lastly another perhaps amusing but still very significant fact: the advice given to the applicant by one of his superiors, Assistant Director General Heringa, towards the very end of the probationary period, to get rid of his herd of cattle in Italy so as to avoid any possible conflict of interest with his duties as Head of the ‘Cattle and Meat’ Division.

It must be borne in mind that in the Commission's normal practice, dismissal at the end of the probationary period is very infrequent. An official who after the end of the probationary period receives no information (not even unofficially) of a clearly unfavourable nature can reasonably presume that there is no difficulty about his establishment. The abovementioned events seem such as could have convinced the applicant that nothing stood in the way of his establishment (it seems in fact that he considered it as his already). It is because of this equivocal state of affairs that after the end of the probationary period he incurred expenses or carried out transactions connected with what he expected to be a permanent engagement with the Commission. Because of the above, he may have suffered damage for which the Commission must be considered responsible in so far as it appears that in the absence of an express decision to extend the probationary period the reality of his actual position had been from him, and there was thus induced in him a false sense of security.

Before any conclusion can be reached on this matter I do however consider it necessary that an order should be made for verification of the abovementioned facts by a hearing of the applicant's superiors, in particular Directors Heringa and Amiet.

Reserving the question of the amount of damages (which the Court had asked the parties not to discuss at the oral procedure) and the division of the costs, I am therefore of the opinion that the following claims should be rejected: the claim for annulment of the contested decisions, and the claim for compensation to the extent that it relates to the general consequences of the alleged illegality of the dismissal, and to the alleged consequences of events prior to the expiry of the probationary period.

But as concerns the head of the last claim concerning the consequences of events subsequent to the above date I am of the opinion that the Court should, on the basis of Articles 60 and 61 of the Rules of Procedure, order the re-opening of the oral procedure and the hearing as witnesses of Messrs Amiet and Heringa. The object of this is to ascertain whether the applicant, before he received notification of the report dated 4 November 1971, had been adequately informed of the likely result of his probationary period and the reasons for the delay in producing the actual report, or whether on the contrary he had been induced to expect a favourable result.

( 1 ) Translated from the Italian.