CELEX: 61982CC0346
Language: en
Date: 1984-02-23 00:00:00
Title: Opinion of Mr Advocate General Sir Gordon Slynn delivered on 23 February 1984. # Pierre Favre v Commission of the European Communities. # Temporary employee - Dismissal. # Case 346/82.

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
      DELIVERED ON 23 FEBRUARY 1984
      
         My Lords,
      
      The applicant in these proceedings took part in Competition COM/A/322 which was arranged for the purpose of creating a reserve list of administrative officers in grades A 7/6 who would be concerned with nuclear installations and materials. He came out high in the competition. On 25 September 1981 he entered into a contract of employment with the Commission as a temporary employee, as an administrator in the Directorate General of Energy Security Control of Euratom. His contract was said to be for an indefinite period linked to the duration of a nuclear inspection programme. However, provision was also included for the contract to be determined by notice and by letter dated 4 November 1982, notice was given to determine his engagement on 31 December 1982. If the notice provisions are applicable, there is no doubt that they were complied with.
      He presented a complaint against that decision which was rejected. He then issued these proceedings. The time provisions were complied with and there is no issue as to the admissibility of his application.
      He asks the Court to annul his dismissal contained in the letter of 4 November 1982 and to remit the case to the appointing authority for reconsideration, and in particular, for him to be transferred to another post commensurate with his grade and scientific qualifications. In the alternative, he asks to be allowed to show that his dismissal was not in the interest of the service, and therefore, contrary to Article 7 of the Staff Regulations, but was due to a misuse or abuse of power.
      An application for interim relief to prevent the dismissal taking effect was rejected by the President of the Chamber and no order was made for witnesses to attend the hearing, as he asked.
      The first point taken on his behalf is that no or no sufficient reasons existed to justify his dismissal; alternatively the dismissal is invalid because no reasons were given. The Commission contends that it has a complete discretion to terminate this contract on notice without having to justify doing so, and without having to set out reasons. In the alternative, it is said that the applicant's superiors were not satisfied with his work, and that Mr Favre knew perfectly well that that was the reason why his contract was terminated.
      It is thus necessary to consider first whether the Commission enjoyed the discretion it claims.
      The contract of employment incorporates the system of rules applicable to other servants of the European Communities. This is a reference, inter alia, to “The Conditions of Employment of Other Servants” (which for brevity I refer to as “The Conditions”). The servant is said to be subject to them; so must be the Commission.
      It is specifically provided in Article 5 of the contract, that by virtue of the provisions of Article 14 of the Conditions, the servant must undertake a probationary period of six months, at the end of which his engagement may be terminated, if he lacks the necessary professional qualities, under the Conditions set out in Article 14. This appears to give him the right to compensation equal to one third of his basic salary for each month worked, if his contract is terminated. In addition, in Article 5, the contract can be terminated “for the causes and in the conditions” contemplated by Articles 47 to 50 of the Conditions. Where the contract is for a fixed period he must be given notice of between one and three months; if it is a contract of indeterminate length he must be given notice of four days for each month of service with a minimum of two weeks and a maximum of three months.
      By Article 47 the employment of temporary staff ends on the date fixed, if there is one, or after any notice specified in the contract; where the contract is for an indefinite period the employment ends on the expiry of the period of notice specified in the contract. In either case it ends at the end of the month in which the servant attains 65 years.
      In addition the Commission has a right under Article 49 of the Conditions, to terminate without notice on disciplinary grounds in serious cases of the employee's failure to comply with his obligations. By Article 52, except where a temporary official replaces another for a period, the actual period of employment is not to exceed one year.
      Looking simply at the express terms of the contract, the Commission has a right to terminate on notice. Nothing is said about the Commission having to have valid reasons or to say why it terminates the contract. If there were no decision of the Court on this point, I would, for my part, hold that employees of the Community, even those on temporary contracts, were entitled to be told why their contracts were terminated. In the first place, in my view, fairness requires it. If the employee has been unsatisfactory, there is no reason why he should not be told so. If his contract is terminated because there is no longer need for his services, he may be much helped when approaching a new employer if he can produce a document to say so, and to counteract any suspicion that his contract has been terminated because his conduct was unsatisfactory.
      In the second place Article 11 of the Conditions provides that Articles 11 to 26 of the Staff Regulations shall apply by analogy to temporary staff, except for Article 15, and with a modification to Article 22. It is also provided that “Decisions relating to individual members of the temporary staff shall be published as provided for in the second paragraph of Article 25”. The second paragraph of Article 25 requires that any Decision relating to a specific individual shall at once be communicated to the official concerned. A Decision adversely affecting an official shall state the grounds on which it is based. It is the third paragraph which provides for posting at the premises of the relevant institution and in the monthly Staff Bulletin.
      The reference to the second paragraph is clearly an error. In earlier versions of the Staff Regulations there were only two paragraphs in Article 25, the second now being placed third. When the present first paragraph was introduced, Article 11 was not amended; nor was Article 54 where the obligation to publish is excluded. In any event what is required in the third paragraph is more akin to “publication”. If this is right, then I would not read the express reference to the paragraph of Article 25 as impliedly excluding the applicability of the second paragraph. If that had been intended it could easily have been stated, and if there is a doubt I would apply the contra proferentem canon of construction. If, on the other hand, this “second paragraph” means second paragraph, and publication equals notice to the official, then the obligations of the second paragraph are expressly incorporated in Article 11 of the Conditions.
      For my part I cannot see why there should be excluded from the ambit of Article 11 of the Conditions the obligation in Article 25 of the Staff Regulations to give notice in writing of a decision relating to a specific individual, who is a temporary agent. Whilst recognizing the differences between an official and a temporary employee, if there were no authority I would have considered that the requirements in Article 25 that, if an adverse decision is taken, reasons should be given, should also apply to temporary staff.
      There is, however, authority of the Court on which much of the debate has been concentrated in this case. First, in Case 25/68 Schertzer v Parliament [1979] ECR 1729, the Court (Second Chamber) held, contrary to the view of Mr Advocate General Mayras, that the provision for unilateral termination of the employment to be found in Article 47, and in the contract, led to the conclusion that no reasons had to be given for termination. Although that was an unusual case — the applicant was Administrative General Secretary of the European Democratic Union Group so that his appointment involved political as well as administrative factors — it seems clear from the report that the contract made in 1963 was on the basis of the Conditions then in force and that Article 11 of those Conditions was in similar terms to the present provision.
      In Case 25/80 De Briey v Commission [1981] ECR 637, the applicant claimed annulment of the decision dismissing him on the grounds, inter alia, that it was vitiated by an error of law and by an error of fact in that it was not supported by a statement of reasons, and was based on an assessment of his work which he challenged, and where the burden of proof lay on the Commission. The Court (Second Chamber) emphasized the discretionary nature of the Commission's power to dismiss on notice set out in Article 47 (2) of the Conditions, but added “In a case of dismissal for incompetence the Court- may not therefore review the basis on which that discretion was exercised, except where a patent error or misuse of power can be proved.” Pausing there, it would seem that in principle reasons should be given so that the applicant can consider, and the Court, if proceedings come before it, can rule whether there has been such a patent error or misuse of powers. The Court, however, whilst finding that the applicant knew perfectly well the case against him and had had an opportunity to defend himself, added “such a failure (i.e. to set out the reasons on which the decision to dismiss him was based) was in any case justified by virtue of the discretion which Article 47 (2) confers on the competent authority”.
      In that case, having begun on a fixed-term contract, the applicant was at the time of his dismissal on a contract of indefinite duration. Mr Advocate General Reischl took the view that staff “engaged to fill temporarily a permanent post paid from research and investment appropriations and included in the list of posts appended to the budget relating to the institution concerned” (Article 2 (d) of the Conditions) enjoyed a degree of security such as to entitle them to a decision as to whether a dismissal was fair. “The dismissal can be regarded as fair only if valid reasons for it can be shown.” He regarded Schertzer as a special case where the employment, because of its political nature, was from the beginning unstable, and he drew attention to the fact that in Case 110/75 John Mills v European Investment Bank [1976] ECR 1613, the justification for dismissal was investigated by the Court, as indeed in De Briey the Court considered that it might be on the grounds set out in the passage to which I have referred. I agree with Mr Advocate General Reischl (a) as he agreed with Mi-Advocate General Warner in Mills, that the unfairness of the dismissal can be investigated and (b) that the employer should give reasons for the dismissal — as he put it, the employer is “merely obliged to give a coherent explanation of the reasons for the dismissal”.
      I consider, like the three Advocates General I have mentioned, that in the ordinary way the employer should state the reasons; if they are shown to be invalid in law a decision may be annulled though, plainly, in a large number of cases, the assessment of whether to dismiss someone or not involves a judgment which is within the discretion of the authority concerned.
      However, on the basis of the Court's judgments in Scbertzer and apparently in De Briey no reasons need be given to determine a contract of indefinite duration so long as proper notice is given. Any attempt to show that a decision was vitiated by patent error or a misuse of power must be proved on the basis of other material, if reasons are not given.
      Counsel for Mr Favre seeks to avoid the result of these decisions by contending that his client was not in the category of a servant on a contract of indefinite length. It was of an indefinite length bound to the duration of the “Nuclear Inspection Programme”. In the result he can go on as long as the programme lasts; when it ends he must leave. He is, therefore, in a situation analogous to that of an official rather than to a member of the temporary staff.
      I do not interpret the agreement in that way. Reading the provision as a whole, it seems to me that Mr Favre's employment could not last longer than the Nuclear Inspection Programme, but it was of an indefinite duration which could be determined earlier than the conclusion of the programme. I do not think that this was a contract for a definite period. It was for an indefinite period within the meaning of the final paragraph of Article 5 of the contract and of Article 47(2) of the Conditions.
      Nor do I accept the applicant's argument that the reference in Article 5 of the contract to “causes” and “conditions” is sufficient to distinguish Schertzer. Other causes are set out in Articles 47 to 50 of the Conditions and it is to them that the contract refers.
      In effect the second two grounds relied on, that this dismissal was not in the interest of the service and involved an unlawful misuse of power, raise in this case almost the same question as to whether justification for his dismissal existed. Since, on the judgment of the Court in De Briey, patent error and misuse of power can be investigated, it is necessary to consider them.
      By memorandum of 27 October 1981, shortly after his appointment, Mr Favre was told that he must undertake certain courses, including language courses, and study certain problems concerned with the nuclear installation at Windscale in England, and with questions of access to it. He was told to prepare a report upon these questions in December 1981. Since no report was received, a reminder was sent on 27 January 1982, it is said after a meeting on 19 January. He then produced a short note on 29 January 1982. Subsequently he produced a summary dated 29 January of a letter from the Department of Energy in England to the Commission, and on 10 March 1982 a resume of a scientific course which had been arranged, together with his comments on it.
      On 5 April 1982 the report at the end of his probationary period found that his performance was inadequate in three respects. He showed little initiative; an inadequate sense of responsibility; he was very slow. Since he had produced so little it was said that the quality of his work could not be assessed. That report, signed by the Head of Division for part of the period, the Director and the Director-General concluded that he lacked the professional qualifications necessary to perform the functions given to him. It was said that he had been told of his shortcomings, although he challenges both the assessment and the number of times it is alleged that he was told of the delay in producing his report. He also contends that he was heavily engaged in courses, had no adequate facilities and only in March 1982 was cleared to see classified material so that he was in any event hampered in what he could do.
      Subsequent to this report a note of 7 May from the official responsible for training complained of his lack of interest and his passivity. Meetings were held on 7 and 17 May which were attended by the applicant the Director and the Head of Division, together with the head of the section in which he worked. It is clear from the minutes of these meetings that many of the criticisms of his work, and his replies to the criticisms, were considered in detail. Although at the first meeting the Director of the Euratom Security Control said that, as far as his Directorate was concerned, the report would not be modified, he undertook to study Mr Favre's comments. Although the Director has been criticized for arriving at such a conclusion at the first meeting, there seems little doubt that he did study the comments before making the final recommendation to the Director General that the applicant be not retained.
      For reasons which have not been made clear, this recommendation was not acted on.
      On 9 June Mr Favre presented a detailed written reply to the criticisms made of him.
      In the meantime a longer report by him on security control at Windscale was described as being à good base to start a file on the subject. It is said that this could have provided a basis for further studies had it been prepared in due time. He was given further work to do on 2 July but told by letter of 30 July from the Director General of Personnel that the latter had asked that Mr Favre's contract be terminated under Article 47 (2) (a) of the Conditions on 2 November. The Commissioner concerned did not accede to this at once but decided, following representations on Mr Favre's behalf by the Staff Committee, to consider the matter.
      In the meantime reports were made on his work on 24 August which, while finding good elements, thought that some confusion resulted from his making unreal comparisons and found his report lacking in certain respects. Further work was given to him on 21 October but on 4 November the letter of dismissal was sent.
      It seems clear that Mr Favre may have had some problems with the English language at the beginning of his employment, and that he spent a substantial number of days undergoing courses, which must be taken into account when assessing the quantity of his output. On the other hand the suggestion which he makes that his work was of a political nature, which could not be done until he was cleared for security reasons, seems exaggerated. Relations between the Windscale authorities and the Commission may have involved some political factors but Mr Favre's work was essentially of a technical scientific nature.
      It is accepted that his qualifications and theoretical knowledge were good. None the less it seems to me to have been shown that his superiors were, during his probationary period and subsequently, not satisfied with the initiative he took or the quantity or quality of his work, and that there was material upon which they could reasonably come to that conclusion. The technical merits of what he produced are essentially for his superiors, also scientists, to assess. The fact that what he wrote was very short is not conclusive, as he justifiably contends, but on the material produced to the Court it seems to me to have been open to those superiors for adequate reasons to decide that here he had not done enough work of a sufficient quality and that he should not be retained. He has not, in my view, made out his contention that he was dismissed only because one official in particular, and perhaps a second official, were anxious to get rid of him on personal and unjustifiable grounds. The fact that a third official, Mr Van der Stijl, did not sign his probationary report has been adequately explained; the latter's clear and justified irritation that his views were quoted without his knowledge at a later stage does not lead to the conclusion that he was opposed to Mr Favre's departure.
      If these grounds Avere reasonably found by his superiors to exist, as I think it has been shown that they were, it does not seem to me that any abuse or misuse of power is shown; nor can it be said that his removal was contrary to the interests of the service. His argument that, if he goes in this way, other scientists of ability will not wish to work for the Commission because of their insecurity of tenure seems to me to be without foundation.
      Even though, whatever the legal obligation, it would in my view be better if reasons were stated in the final dismissal, it is clear that in this case he knew well in the spring and summer of 1982 why he was not giving satisfaction.
      After his probationary period was over, and after the first warning had been given to him that approval was being sought for his dismissal, he was given more work to do. It seems to me that in such a case, if a temporary employee is given more time or, as it is called, a second chance, there should not only be a review of his subsequent work but he should in terms be told why he has not achieved a sufficient standard in the subsequent period. That was not adequately done in this case.
      Although it is, in my view, unsatisfactory that both the employee and the Court should have to seek the reasons from the facts such as they are, rather than from a clear statement of reasons, it seems to me here that no sufficient improvement occurred even allowing for his absences for holidays and illness.
      In the circumstances, despite what I regard as unsatisfactory features of the case, it seems to me that sufficient material has been shown by the Commission to justify the termination of the contract, and that this application should be dismissed, each party bearing its own costs.