Judgment of the Court (Second Chamber) of 25 March 1982. - K.J. Munk v Commission of the European Communities. - Probationary official - Dismissal. - Case 98/81.



European Court reports 1982 Page 01155



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - PROBATIONARY PERIOD - PROBATION REPORT - DELAY IN DRAWING UP THE REPORT - CONSEQUENCES

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

2 . OFFICIALS - RECRUITMENT - PROBATIONARY PERIOD - PROBATION REPORT - SCOPE AND CONTENT

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

3 . OFFICIALS - RECRUITMENT - PROBATIONARY PERIOD - PROBATION REPORT - ASSESSMENT OF THE PROBATIONARY OFFICIAL ' S ABILITIES - POWERS OF THE ADMINISTRATION - REVIEW BY THE COURT - LIMITS

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

4 . OFFICIALS - ADMINISTRATION ' S DUTY TO ASSIST - SCOPE

( STAFF REGULATIONS OF OFFICIALS , ART . 24 )

Summary

1 . A DELAY IN THE DRAWING UP OF THE PROBATION REPORT CONSTITUTES AN IRREGULARITY , IN VIEW OF THE EXPRESS REQUIREMENTS OF THE STAFF REGULATIONS , WHICH , REGRETTABLE AS IT MAY BE , IS STILL NOT OF SUCH A NATURE AS TO CALL IN QUESTION THE VALIDITY OF THE REPORT . SINCE THE OBJECTIVE OF ARTICLE 34 OF THE STAFF REGULATIONS IS TO GUARANTEE TO THE PERSON CONCERNED THE RIGHT TO SUBMIT ANY OBSERVATIONS TO THE APPOINTING AUTHORITY AND ALSO TO ENSURE THAT SUCH OBSERVATIONS SHALL BE TAKEN INTO CONSIDERATION BY THAT AUTHORITY , A DECISION TO DISMISS THE PERSON CONCERNED ON THE BASIS OF A PROBATION REPORT DRAWN UP LATE IS NOT FOR THAT REASON INVALID , PROVIDED THAT THE TIME WHICH ELAPSED BETWEEN THE DRAWING UP OF THE REPORT AND THE DECISION OF DISMISSAL IS SUFFICIENT FOR THE PROBATIONER TO BE ABLE TO MAKE HIS OBSERVATIONS AFTER THE REPORT WAS COMMUNICATED TO HIM AND ALSO FOR THE APPOINTING AUTHORITY TO BE ENABLED TO ASSESS THE POSITION , AS IT IS BOUND TO DO .

2 . THE PROBATION REPORT MUST DESCRIBE ONLY THE MAIN ACTIVITIES TO THE PERSON CONCERNED DURING THE PROBATIONARY PERIOD . THAT DESCRIPTION MUST BE SUFFICIENTLY PRECISE TO PERMIT THE APPOINTING AUTHORITY TO ADOPT ITS DECISION AND TO STATE THE REASONS ON WHICH IT IS BASED .

3 . IT IS FOR THE COMPETENT ADMINISTRATIVE AUTHORITY TO USE ITS POWER OF ASSESSMENT AS REGARDS THE ABILITY OF THE PERSON CONCERNED TO PERFORM THE DUTIES ENTRUSTED TO HIM , SUBJECT TO REVIEW BY THE COURT OF THE MANNER IN WHICH THAT HAS BEEN DONE IN THE EVENT OF MANIFEST ERROR .

4 . THE PROVISIONS OF ARTICLE 24 OF THE STAFF REGULATIONS ARE CONCERNED WITH THE DEFENCE OF OFFICIALS AGAINST THE ACTS OF THIRD PARTIES AND NOT AGAINST ACTS EMANATING FROM THE INSTITUTION ITSELF , THE REVIEW OF WHICH IS GOVERNED BY OTHER PROVISIONS OF THE STAFF REGULATIONS .

Parties

K . J . MUNK , A FORMER PROBATIONARY OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 9 RUE DE MAELBEEK , 1040 BRUSSELS , ASSISTED AND REPRESENTED BY G . VANDERSANDEN OF THE BRUSSELS BAR , 38 AVENUE DE BLAUWAERTS , 1050 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF N . EDEN , 2 RUE GOETHE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY J . PIPKORN , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY R . ANDERSEN OF THE BRUSSELS BAR , 214 AVENUE MONTJOIE , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , PLATEAU DU KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 1 JULY 1980 TO TERMINATE HIS ENGAGEMENT ON THE EXPIRATION OF THE PROBATIONARY PERIOD WITH ALL THE CONSEQUENCES OF SUCH AN ANNULMENT , IN PARTICULAR AS REGARDS HIS REINSTATEMENT IN HIS CAREER ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 24 APRIL 1981 , K . MUNK , A FORMER PROBATIONARY OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 1 JULY 1980 TERMINATING HIS APPOINTMENT AT THE EXPIRATION OF THE PROBATIONARY PERIOD , WITH ALL THE CONSEQUENCES FOLLOWING UPON SUCH ANNULMENT , IN PARTICULAR AS REGARDS REINSTATEMENT IN HIS CAREER .

2 THE APPLICANT ENTERED THE COMMISSION ' S SERVICE ON 1 OCTOBER 1979 AS A PROBATIONARY OFFICIAL WITH THE STRUCTURAL POLICY DIVISION OF DIRECTORATE GENERAL XIV ( FISHERIES ), AND WAS PLACED IN GRADE A 7 . ON THE EXPIRATION OF THE PROBATIONARY PERIOD HE WAS DISMISSED BY DECISION OF THE APPOINTING AUTHORITY OF 1 JULY 1980 ON THE BASIS OF AN UNFAVOURABLE PROBATION REPORT .

3 THE APPOINTING AUTHORITY GAVE AS ITS REASONS FOR THE DISMISSAL THE APPLICANT ' S FAILURE TO ADAPT HIMSELF TO THE REQUIREMENTS OF THE SERVICE FROM THE POINT OF VIEW BOTH OF HIS ABILITY TO CARRY OUT HIS DUTIES AND OF HIS EFFICIENCY AND CONDUCT , BASING ITS DECISION ON THE PRINCIPAL CONSIDERATIONS CONTAINED IN THE REPORT AT THE CONCLUSION OF THE PROBATIONARY PERIOD .

4 IN SUPPORT OF HIS APPLICATION THE APPLICANT PUTS FORWARD THREE SUBMISSIONS RELATING TO ALLEGED IRREGULARITIES IN THE CONTESTED DECISION AND CONSISTING IN FAILURE TO DRAW UP THE PROBATION REPORT WITHIN THE PRESCRIBED PERIOD , IN ERRORS IN THE STATEMENT OF THE GROUNDS ON WHICH THE DECISION WAS BASED OWING TO INACCURATE AND OVER-RIGID ASSESSMENTS IN THE REPORT AND IN A MISUSE OF POWERS BY REASON OF THE FACT THAT THE REPORT WAS DRAWN UP WITH THE SOLE PURPOSE OF OBTAINING HIS DISMISSAL AND OF PREVENTING HIM FROM FINDING A POST IN ANOTHER BRANCH OF THE COMMISSION . IN THIS CONNECTION HE ALLEGES THAT THE COMMISSION FURTHER FAILED TO COMPLY WITH ITS DUTY TO ASSIST ITS OFFICIALS AND TO OBSERVE THE PRINCIPLE OF GOOD ADMINISTRATION .

FAILURE TO MEET THE TIME-LIMIT IMPOSED BY ARTICLE 34 OF THE STAFF REGULATIONS

5 IN THE WORDS OF ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS : ' ' NOT LESS THAN ONE MONTH BEFORE THE EXPIRY OF THE PROBATIONARY PERIOD , A REPORT SHALL BE MADE ON THE ABILITY OF THE PROBATIONER TO PERFORM THE DUTIES PERTAINING TO HIS POST AND ALSO ON HIS EFFICIENCY AND CONDUCT IN THE SERVICE . THIS REPORT SHALL BE COMMUNICATED TO THE PERSON CONCERNED , WHO SHALL HAVE THE RIGHT TO SUBMIT HIS COMMENTS IN WRITING . ' '

6 THE APPLICANT CLAIMS IN THIS RESPECT THAT THE TIME-LIMIT OF ONE MONTH FIXED BY THE ABOVE PROVISION WAS NOT MET IN VIEW OF THE FACT THAT THE REPORT ON HIS PROBATIONARY PERIOD WAS DRAWN UP ON 19 JUNE 1980 , THAT HE RECEIVED IT ON 22 JUNE AND RETURNED IT WITH HIS OBSERVATIONS ON 27 JUNE AND THAT THE DECISION TO DISMISS HIM WAS ADOPTED ON 1 JULY WITH EFFECT AS FROM THAT DATE . IN VIEW OF THE SHORTNESS OF THE TIME AVAILABLE THE APPLICANT DID NOT HAVE SUFFICIENT TIME TO PRESENT HIS OBSERVATIONS AND THE APPOINTING AUTHORITY DID NOT HAVE THE NECESSARY TIME TO APPRAISE THE ASSESSMENTS CONTAINED IN THE REPORT OR THE REMARKS ACCOMPANYING IT IN ORDER THAT ITS DECISION ON THE TERMINATION OF THE PROBATIONARY PERIOD MIGHT BE ADOPTED WITH FULL KNOWLEDGE OF THE FACTS . THE DECISION TO DISMISS HIM , ARRIVED AT IN THESE CIRCUMSTANCES , MUST , ACCORDING TO THE APPLICANT , BE REGARDED AS UNLAWFUL .

7 THE COMMISSION JUSTIFIES THE FACT THAT THE TIME-LIMITS WERE NOT MET BY ITS DESIRE TO HAVE CONSIDERATION FOR THE APPLICANT ' S INTERESTS . IN FACT HIS SUPERIORS WISHED TO ALLOW HIM THE OPPORTUNITY TO CONCLUDE A PAPER AND TO SEEK A DIFFERENT POST WITH THE COMMISSION BEFORE THE END OF HIS PROBATIONARY PERIOD , AS HE HAD BEEN ADVISED TO DO .

8 AS THE COURT HAS RECOGNIZED , A DELAY IN THE DRAWING UP OF THE PROBATION REPORT CONSTITUTES AN IRREGULARITY IN VIEW OF THE EXPRESS REQUIREMENTS OF THE STAFF REGULATIONS WHICH , REGRETTABLE AS IT MAY BE , IS STILL NOT OF SUCH A NATURE AS TO CALL IN QUESTION THE VALIDITY OF THE REPORT . THE OBJECTIVE OF ARTICLE 34 OF THE STAFF REGULATIONS IS TO GUARANTEE TO THE PERSON CONCERNED THE RIGHT TO SUBMIT ANY OBSERVATIONS TO THE APPOINTING AUTHORITY AND ALSO TO ENSURE THAT SUCH OBSERVATIONS SHALL BE TAKEN INTO CONSIDERATION BY THE APPOINTING AUTHORITY .

9 IT APPEARS FROM THE FILE THAT THE TIME WHICH ELAPSED BETWEEN THE DRAWING UP OF THE REPORT AND THE DECISION TO DISMISS THE APPLICANT WAS IN THIS CASE SUFFICIENT FOR THE APPLICANT TO BE ABLE TO MAKE HIS OBSERVATIONS AFTER THE REPORT WAS COMMUNICATED TO HIM AND ALSO FOR THE APPOINTING AUTHORITY TO BE ENABLED TO ASSESS THE POSITION , AS IT WAS BOUND TO DO . IT SHOULD ALSO BE NOTED THAT THE OPINION OF THE APPLICANT ' S SUPERIOR , WHICH GAVE AN ASSESSMENT WHICH WAS SUBSTANTIALLY IDENTICAL TO THAT EXPRESSED IN THE PROBATION REPORT , HAD BEEN COMMUNICATED TO HIM BY A MEMORANDUM OF 20 MAY AND THAT THE APPLICANT HAD REPLIED BY LETTER OF 9 JUNE 1980 .

10 IT APPEARS FROM THE FOREGOING THAT THE APPLICANT ' S SUBMISSION RELATING TO THE INFRINGEMENT OF ARTICLE 34 OF THE STAFF REGULATIONS CANNOT BE ACCEPTED AND THAT CONSEQUENTLY IT MUST BE DISMISSED .

ERRORS IN THE STATEMENT OF THE GROUNDS ON WHICH THE DECISION TO DISMISS THE APPLICANT WAS BASED

11 THE APPLICANT MAINTAINS THAT THE PROBATION REPORT WHICH CONSTITUTES THE ESSENTIAL BASIS FOR THE CONTESTED DECISION CONTAINS INACCURATE AND OVER-RIGID ASSESSMENTS AND THAT IT IS NOT OBJECTIVE INASMUCH AS IT IS BASED ON DISPUTED ASPECTS OF HIS WORK AND DOES NOT MENTION ANY POSITIVE FACETS OF THE PROGRESS OF HIS PROBATIONARY PERIOD . HE ALSO CLAIMS THAT HE WORKED DURING HIS PROBATIONARY PERIOD WITHOUT PRECISE DIRECTIONS FROM HIS SUPERIORS AND THAT THE PROBATION REPORT DOES NOT MENTION ALL HIS ACTIVITIES DURING THE PERIOD IN QUESTION .

12 THE DEFENDANT REJECTS THAT LINE OF ARGUMENT EXPLAINING THAT THE INTELLECTUAL QUALITIES AND THE SCIENTIFIC QUALIFICATIONS OF THE APPLICANT ARE NOT DISPUTED . HOWEVER , THE APPLICANT DOES NOT HAVE THE QUALITIES REQUIRED FOR THE CAREER OF AN OFFICIAL IN AN INTERNATIONAL ADMINISTRATION FACING SPECIFIC PROBLEMS . THE DEFENDANT CLAIMS THAT THE APPLICANT TREATED THE SUBJECTS ENTRUSTED TO HIM IN TOO THEORETICAL A MANNER WHICH WAS NOT IN CONFORMITY WITH THE REQUIREMENTS OF THE DAILY FUNCTIONING OF THE SERVICE AND OUTSIDE THE FRAMEWORK IN WHICH HE WAS EXPECTED TO CARRY OUT HIS WORK .

13 IN ADDITION THE APPLICANT IS CHARGED WITH NOT HAVING UTILIZED THE APPROPRIATE OFFICIAL CHANNELS FOR COMMUNICATION BY MAKING CONTACT WITH OTHER BRANCHES OF THE COMMISSION WITHOUT THE PERMISSION OF HIS SUPERIOR AND WITHOUT PASSING COMMUNICATIONS THROUGH HIM .

14 IT MUST BE STATED THAT THE APPLICANT ADDUCES NO EVIDENCE IN SUPPORT OF HIS ALLEGATIONS THAT HE WAS OBLIGED TO WORK WITHOUT DIRECTIONS AND THAT THE REPORT IS INACCURATE BECAUSE IT DOES NOT MENTION ALL HIS ACTIVITIES DURING THE PERIOD IN QUESTION . IT SHOULD BE NOTED MOREOVER THAT THE PROBATION REPORT ITSELF MUST DESCRIBE ONLY THE MAIN ACTIVITIES OF THE PERSON CONCERNED DURING THE PROBATIONARY PERIOD . THAT DESCRIPTION MUST BE SUFFICIENTLY PRECISE TO PERMIT THE APPOINTING AUTHORITY TO ADOPT ITS DECISION AND TO STATE THE REASONS ON WHICH IT IS BASED .

15 NOR IS IT POSSIBLE TO CONFIRM THAT THE REPORT SHOWS A LACK OF OBJECTIVITY AS IT IS CLEAR FROM A PERUSAL OF THE REPORT THAT THE APPLICANT ' S ABILITY WAS JUDGED TO BE GOOD AND EVEN VERY GOOD IN CERTAIN RESPECTS .

16 WITH REGARD TO THE APPLICANT ' S ALLEGATIONS AS TO THE SUBSTANCE OF THE ASSESSMENTS MADE OF HIM IN THE REPORT , IT SHOULD BE RECALLED THAT IT IS FOR THE COMPETENT ADMINISTRATIVE AUTHORITY TO USE ITS POWER OF ASSESSMENT AS REGARDS THE ABILITY OF THE PERSON CONCERNED TO PERFORM THE DUTIES ENTRUSTED TO HIM , SUBJECT TO THE REVIEW BY THE COURT OF THE MANNER IN WHICH THAT HAS BEEN DONE IN THE EVENT OF MANIFEST ERROR . IN THIS CASE IT DOES NOT APPEAR FROM THE FILE THAT THE APPOINTING AUTHORITY HAS COMMITTED A MANIFEST ERROR IN ITS ASSESSMENT OF MR MUNK ' S MERITS .

17 THE SECOND SUBMISSION PUT FORWARD BY THE APPLICANT MUST THEREFORE ALSO BE DISMISSED .

THE SUBMISSION OF MISUSE OF POWERS

18 THE APPLICANT CLAIMS IN THIS RESPECT THAT HIS DISMISSAL WAS BROUGHT ABOUT SO AS TO PREVENT THE SUCCESSFUL CONCLUSION OF HIS EFFORTS TO OBTAIN A TRANSFER .

19 THIS LINE OF ARGUMENT IS BASED ON A DOUBLE MISUNDERSTANDING AND CANNOT BE ACCEPTED . FIRST IT MUST BE STATED THAT IT WAS THE APPLICANT ' S SUPERIORS THEMSELVES WHO AT THE PROPER TIME HAD ADVISED HIM TO CONSIDER THE POSSIBILITY OF FINDING IN OTHER BRANCHES OF THE COMMISSION ANOTHER POST WHICH WOULD CORRESPOND MORE EXACTLY TO HIS QUALIFICATIONS . SECONDLY IT IS NOT FOR THE COURT TO ASSESS THE NEED FOR OR EXPEDIENCY OF A RE-ARRANGEMENT OF POSTS WITHIN AN INSTITUTION , AS THE APPLICANT ' S CLAIM IMPLIES .

20 THE APPLICANT ALSO CLAIMS THAT THE COMMISSION FAILED IN ITS DUTY TO ASSIST ITS OFFICIALS , AS REQUIRED BY ARTICLE 24 OF THE STAFF REGULATIONS INASMUCH AS IT DID NOT SUPPORT HIM IN HIS EFFORTS TO OBTAIN ANOTHER ASSIGNMENT WITHIN THE INSTITUTION .

21 THIS SUBMISSION CANNOT BE ACCEPTED . AS THE COURT RECENTLY STATED IN THE JUDGMENT OF 17 DECEMBER 1981 ( BELLARDI-RICCI , CASE 178/80 , ( 1981 ) ECR 3187 ), THE PROVISIONS OF ARTICLE 24 OF THE STAFF REGULATIONS ARE CONCERNED WITH THE DEFENCE OF OFFICIALS AGAINST THE ACTS OF THIRD PARTIES AND NOT AGAINST ACTS EMANATING FROM THE INSTITUTION ITSELF , THE REVIEW OF WHICH IS GOVERNED BY OTHER PROVISIONS OF THE STAFF REGULATIONS .

22 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION MUST BE DISMISSED AS BEING UNFOUNDED .

Decision on costs

COSTS

23 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

24 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .