CELEX: 61981CC0098
Language: en
Date: 1982-02-11
Title: Opinion of Mr Advocate General Reischl delivered on 11 February 1982. # K.J. Munk v Commission of the European Communities. # Probationary official - Dismissal. # Case 98/81.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 11 FEBRUARY 1982 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The applicant in these proceedings entered the service of the Commission on 1 October 1979 as a probationary official classified in Grade A 7. He was employed in Directorate General XIV (Fisheries), Directorate B (Markei and Structure), Division II (Structural Policy).
      Some considerable time before the expiry of his probationary period, which in accordance with Article 34 of the Staff Regulations terminated on 30 June 1980, he had already been reproached orally by his superiors concerning his conduct and his work. The head of the division in which he was employed also expressed criticism of him in writing, in a note dated 20 May 1980. In that note it was stated that the applicant had failed to make sufficient endeavours to adapt himself to his new duties, that he had not always satisfactorily performed the duties with which he was entrusted and that he also failed to carry out the instructions he was given. A further ground of complaint against the applicant was that he had failed to respect the hierarchical order in that he had criticized his immediate superiors before the head of Directorate B. In addition his relations with other departments were the cause of difficulties. The note concluded with the remark that it was impossible to propose that the applicant should be established after the expiry of his probationary period and it was pointed out that he had already been advised as early as Easter 1980 to apply to the administration of the Commission for other employment.
      In a letter dated 9 June 1980 the applicant gave his views in detail on the note. He gave detailed explanations regarding the duties assigned to him, pointing out that his head of division gave him instructions in French, a language of which the applicant had only an elementary knowledge, and that for certain of the duties assigned to him — concerning the “Norway pout box” — no detailed instructions were given him by his head of division.
      Shortly afterwards, on 19 June 1980, the repon provided for in Article 34 of the Staff Regulations concerning the course of the probationary period was made by the head of Directorate B after consultation with the applicant's superior, the head of division, and the repon was also signed by the Director of Directorate General XIV. Under seven of the ten heads he was given the assessment, with brief comments, “unsatisfactory”; his knowledge was assessed as “very good” and under the head “initiative” the repon contains the assessment “good”. In the summarizing assessment it was stated that the applicant was “rigide” and “presque dogmatique” in his approach to problems and that he was accordingly better suited for academic work than for a career as an official and it was proposed that after the end of the probationary period he should be dismissed from the service since he did not possess the necessary abilities to pursue a career as an official.
      On 26 June 1980 the applicant made his observations on the repon which had been notified to him on 11 June 1980. He complained that the repon failed to mention all the duties which he was required to carry out and which he performed in pan satisfactorily and in accordance with his instructions and referred also to his comments on the note of his head of division dated 20 May 1980. On 17 June 1980 the applicant returned the repon, duly signed.
      On 1 July 1980 the competent member of the Commission adopted a decision terminating the service of the applicant with effect from that date.
      On 26 September 1980 the applicant submitted a complaint against that decision in which he claimed inter alia that the report did not give a complete picture of the duties assigned to him and in which he referred to the fact that another position elsewhere in the Commission had in fact been available as early as July 1980.
      Since the complaint was not answered within the prescribed period — it was only expressly rejected on 21 May 1981 — the applicant finally applied to the Coun of Justice on 24 April 1981 requesting the Coun to annul the decision of 1 July 1980 and to reinstate him.
      In accordance with advice given him bv his superiors as early as the spring of 1980 the applicant tried to find a position in other departments of the Commission. He was unsuccessful in this — that is, in being transferred as a probationary official or as an established official — before the measure dismissing him was adopted. Subsequently, however — from 1 December to 31 December 1980 and then again from 1 January 1981 to 31 December 1981 — he was employed in Directorate A of Directorate General VI as a so-called “expert”, who, in accordance with the relevant rules laid down by the Commission, is entitled only to a daily subsistence allowance and the refund each month of the cost of travel to his place of origin. He was employed there in the division “Analysis of the situation of agricultural holdings — agricultural information”, working together with an official in Grade A 6, apparently to the complete satisfaction of his superiors, on tasks similar to those which he used to perform at the University of Aarhus, namely the preparation of an information system for the agricultural budget.
      In support of his application the applicant has put forward three grounds on which I shall now give my views:
      1. Infringement of Article 34 of the Staff Regulations
      Article 34 of the Staff Regulations provides that no less than one month before the expiry of the probationary period a repon must be made on the ability of the probationary official to perform the duties pertaining to his post and also on his efficiency and conduct in the service. In this case that provision has not been complied with: the report in question was made on 19 June 1980, the applicant received it on 22 June and returned it on 27 June with his comments; then, on 1 July 198C, the decision was adopted terminating the applicant's status as an official with effect from that date.
      When the applicant puts this at the forefront of his argument he is not, however, — as the reply makes clear — concerned with the question of the validity of the report (in connection with that question the Commission has referred to the judgment in Joined Cases 10 and 47/72, (
            2
         ) according to which failure to comply with the time-limit laid down in Article 34 of the Staff Regulations does fiot in fact vitiate “the validity of the report”). Instead he considers that it is necessary to ensure that the person concerned is able to submit his observations on the report, since an unfavourable repon constitutes a decisive factor in the matter of termination of service. Further, the appointing authority must have sufficient time for appraising the repon and the views expressed on it in order that the decision to be taken at the end of the probationary period may be adopted on a sound basis. In this case, in view of the dates which have been given, there was not sufficient time and accordingly the dismissal must be considered as vitiated on that ground alone.
      It is difficult to agree with the applicant on the first point, even though it must be admitted that in this case the periods in question were extraordinarily short and in anv event did not leave so much latitude as was the case in Joined Cases 10 and 47/72.
      This mode of procedure was in fact explained by the Commission as having regard for the applicant's interests. Apparently it wished to await the completion of a study which was entrusted to the applicant on 20 May and which was not completed in good time. Furthermore it also waited in the hope that the applicant would follow the advice given to him and find another position with the Commission in good time before the end of his probationary period.
      In this connection the first point to be made is that the applicant had sufficient time to submit his comments after the notification of the report (22 June) until it was returned (27 June). In particular, it should be borne in mind in the first place that complaints had already been made about him in a note from his superior dated 20 May 1980 on which he submitted his comments in detail in a letter dated 9 June 1980 and to which he referred for the essential details in submitting his comments on the report on his probationary period. Secondly, it mav also be accepted that the time remaining after the return of the repon was sufficient for a proper assessment by the appointing authority of the report and the comments made by the applicant. In any case it may be assumed that if the authority had considered that there were grounds for doubt and investigation it would certainly not have hesitated tacitly to extend the probationary period, as occurred in the abovementioned cases.
      Accordingly, I should not consider it appropriate to annul the decision of dismissal on the ground of infringement of Article 34 of the Staff Regulations even though it is impossible to suppress a certain uneasiness in relation to the rather careless application of this provision in the present case.
      2. Errors in the statement of the reasons on which the decision is based
      The measure contested by the applicant refers to the repon made in accordance with Article 34 of the Staff Regulations on his probationary period and cites from it the points in respect of which the assessment “unsatisfactory” was given. In this connection the applicant puts forward as a second ground for his application the circumstance that the repon, which clearly constituted the basis for the decision of dismissal, is unsound as regards the abovementioned points, inter alia, because it fails to take into consideration cenain extenuating circumstances in his favour. He also considers that the repon is not objective in that it fails to give a correct picture of the course of the probationary period and to provide a list of all the duties performed by the applicant and that it is instead merely composed of unfavourable factors.
      
               (a)
            
            
               With regard to this ground a more accurate impression of the assessment of the applicant has emerged in the course of the procedure, particularly from the answers to the questions put by the Coun.
               It was acknowledged that the applicant satisfactorily carried out a number of duties, and his intellectual qualities, in particular his scientific ability, were also pointed out in the clearest terms.
               The complaint against him, however, is that on frequent occasions he tried to carry out the tasks entrusted to him on too theoretical a level and with a wealth of detail of purely academic interest. This approach did not, however, correspond to the requirements of the daily business of the departments and the achievement of the Commission's policy for which it was necessary to draw practical conclusions.
               Furthermore, in a number of cases, when carrying out his work, he wished to make his own ideas prevail over the instructions of his superiors, which gave rise to problems, as for instance, in his work concerning the “Norway pout box” which constituted a real danger for the policy of conserving fish stocks. Finally he frequently disregarded the hierarchical organization and even committed a number of unacceptable indiscretions, in the form of undesired contacts with other departments of the Commission.
            
         
               (b)
            
            
               It must be pointed out in the first place that a report made in accordance with Article 34 of the Staff Regulations cannot of course set out all the details of the probationary period. As has already been made clear by the case-law of the Court (Case 99/77) (
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                  ) it is sufficient when in such a repon a description of the principal activities is given. As a glance at the report in question shows this was certainly done in this case. Nor may it be said that the report confined itself to mentioning unfavourable aspects (which would be incompatible with the principle of objectivity), since it shows that the abilities of the applicant are in a number of respects to be assessed as “good” and “very good” and it does not pass over the scientific abilities of the applicant.
               Secondly, it is clear that a repon on a probationary period, in so far as it sets out views as to the aptitude of an official for the performance of the duties assigned to him, consists mostly of value-judgments. That this is so in this case, at any rate so far as heads A 2, 4 and 5 and B 1 are concerned, and, albeit perhaps to a lesser degree, as regards the assessment of speed in carrying out work — B 1 — and the assessment of relations inside the depanment and with outsiders — C 1 and 2. In this respect it is not the task of the Coun of Justice to supplant such value-judgments by its own, and in particular not with regard to the matters mentioned in the procedure regarding the duties performed by the applicant and their importance in the formation of the assessment as a whole. At most there may be a finding that manifest errors have occurred and, as the case-law of the Court in questions of occupational aptitude has long since settled (Case 1/55 (
                     4
                  ) and Case 10/55 (
                     5
                  )) the only issue to be examined is whether the methods and procedure which have led to an assessment afford grounds foŕóbjection.
            
         
               (c)
            
            
               Against this background the following detailed remarks should be made on the case presented by the applicant:
               
                        (aa)
                     
                     
                        In so far as the impression is created that the unfavourable assessment of the applicant is to be traced back to the bad relations between him and his immediate superior the decisive factor is that the report was not made by that immediate superior but by the head of Directorate B who, as is not contested, was able through frequent contact with the applicant to form his own impression of him and that the repon also received the assent of the competent Director General, who, likewise, as was stated without contradiction, had to have dealings with the applicant in the course of his duties.
                     
                  
                        (bb)
                     
                     
                        The applicant's defence is based first of all on the claim, concerning certain tasks the performance of which was the subject of an unfavourable assessment, that no proper instructions were given and secondly on the reference to Unguage problems in relations with his immediate superior and also on the absence of suitable colleagues in his department whose Lnguages matched those of the applicant. That is the origin of certain inadequacies with which he was reproached: This factor was not taken into consideration in the report.
                        In this connection it must, however, be remarked that the applicant was unable to make out a credible case of a lack of precise instructions, particularly with regard to a series of tasks which, in the judgment of his superiors, he performed satisfactorily. In addition one is inevitably left with the impression that precisely in connection with the task which was discussed in greatest detail, the work concerned with the so-called “Norway pout box”, the necessary clarity was obtained through repeated contact between the applicant and the head of Directorate B with whom there should have been no communication difficulties since the latter speaks English.
                        Furthermore, in this connection it must be stated, on the basis of the uncontradicted submissions of the Commission, that the applicant was not in fact without an experienced person of the same status with whom he could speak in his department, since for half of his probationary period it is clear that he worked together with an English colleague.
                        The problem of communication with the applicant's immediate superior should not in fact be overestimated because, according to what we have heard, the applicant has a passive knowledge of French and his head of division has a passive knowledge of English, which would appear to permit a reasonable degree of communication.
                     
                  
                        (cc)
                     
                     
                        With regard to the slowness in the performance of certain tasks, which was imputed to the applicant, the latter has merely listed the number of tasks performed by him and pointed to a final report extending to 40 pages, which he drew up in the period between 20 May and 17 June.
                        In the first place, however, it must be said that the applicant was unable in this way to demonstrate that he performed the tasks allotted to him at various times with the necessary expedition. Secondly, with regard to that report, a study of the economic consequences of aid made available to the sardine and anchovy industries, the Commission has convincingly explained that, in this case, too, the applicant failed properly to understand the nature of his task, since this was merely concerned with an initial appraisal of magnitudes which certainly did call for comprehensive, timeconsuming work.
                     
                  
                        (dd)
                     
                     
                        Finally, as to the applicant's alleged disregard of the hierarchical organization and the complaint that, in regard to certain work, he made improper contacts with other departments of the Commission, it has to be said that in this matter there is no dispute as to the facts. The applicant admits that he repeatedly contacted the head of Directorate B, thus bypassing his immediate superior, and he concedes that in connection with certain tasks, and manifestly against clear instructions, he exchanged views with colleagues from other departments which, from the point of view of his own department and the policies pursued there, must be considered an indiscretion.
                        However, when he tries to minimize the significance of these incidents and to represent them as the mere maladroimess of a newcomer it is difficult to agree with him. Instead it has to be acknowledged that the observance of such “rules of the game” have their importance and that if a probationary official fails to comply with them it is entirely proper to have regard to such behaviour in a general assessment, in particular when express instructions were given.in this matter.
                     
                  
         
               (d)
            
            
               Since, in the result, within the limits of the Court's powers of review in regard to the question of the suitability and ability of officials, no well-founded criticism of the grounds for the dismissal has emerged, it only remains to conclude that the arguments put forward in relation to the second submission do not provide any grounds for annulling the decision of dismissal.
            
         3. Misuse of powers
      With regard to the complaint of misuse of powers the applicant has pointed to the fact that he was advised to try to find another position with the Commission. His endeavours in that direction, which would have been successful if a transfer together with another post had been granted, were, however, frustrated by his superiors. Since his superiors were not prepared to give up the post occupied by the applicant, or another comparable post, they insisted on his dismissal. In his replv the applicant also claimed in this connection that the appointing authority was under a duty to assist him in his endeavours to find another position. It did not, however, do so, but instead hindered the applicant's efforts by means of the unfavourable report of 19 June 1980 and also frustrated his chances of success by abruptly dismissing him instead of delaying any decision until he was successful in obtaining a position elsewhere, which was a real possibility as early as July. In this regard the applicant has referred to his subsequent post as an expert with Directorate General VI and to the fact that his work there has been assessed as entirely satisfactory.
      It certainly cannot be said that there was a misuse of powers on the part of the appointing authority when the applicant's superiors, who are not identical with the appointing authority, frustrate a transfer of the applicant with his post because they are of the view that they are unable to give up the post in their department, and when the appointing authority, on the basis of an unfavourable report as to the establishment of the applicant, subsequently adopts the course laid down in the Staff Regulations, namely dismissal.
      In so far as the applicant in his reply also relies upon the duty of the appointing authority to provide assistance, that duty certainly does not extend to prolonging the probationary period — something which is not provided for in the Staff Regulations — in order to keep open the applicant's chances of finding a position elsewhere in the Commission. In this matter it is of particular importance not to lose sight of the fact that the applicant received similar advice very early, in fact some months before the expir) of the probationary period, and that he plainly did not take appropriate steps to follow it, by getting in touch with the competent Directorate General for Administration and preferred instead to apply to the Cabinet of the Danish Commissioner and to officials of other departments of the Commission. I also do not think that the duty of assistance relied upon by the applicant is to be understood as meaning that on facts such as those in the present case, the drawing-up of the report on the probationary period in accordance with Article 34 of the Staff Regulations, which in any event was late, should have been further delayed in order that the applicant's endeavours to obtain another position should not be frustrated. Further, it is impossible to accept that the superiors of a probationary official, whose abilities are the subject of an unfavourable assessment, must, in order to avoid the charge of a misuse of powers, seek another position for him and the appointing authority is not to be reproached for failure to provide another post.
      With regard to the reference by the applicant to his subsequent work as an expert, which is apparently considered satisfactory, it should be said that the criteria applicable, particularly with regard to the duties performed, differ from these applicable to officials, and that, quite apart from the fact that the applicant, in his capacity as an expert, was operating in another field (and one which clearly was more in accordance with his scientific inclinations), it cannot of course be ruled out that in the meantime he has made considerable progress in his endeavours to adjust to the requirements of an administration.
      Accordingly the only possible conclusion is that the third submission, too, provides no ground for annulling the decision of dismissal.
      
               4.
            
            
               I therefore propose that the Court should dismiss Mr Munk's application as unfounded and decide the question of costs in accordance with Article70 of the Rules of Procedure.
            
         (
            1
         )	Translated from the German
      (
            2
         )	ludpmrm of 12 lulv 1973 m loinrd Casr* 10 and 47/72, Nunzio d Pillo.- Comiįiission, [1973] ECR 763
      
      (
            3
         )	Judement of 1 june 1978 in Case 99/77. Dr Denss d'Auria v Commmiun, (1978) ECR 1267, a; p. 127}.
      (
            4
         )	Judgment of 19 julv 1955 in Case 1/55, Antoine Kerļall v Common Aiiembh ot the ECSC, [1954— 1956] ECR 151, 157 and 158.
      (
            5
         )	Judpmem of 12 December 1956 in Case 10/55, Miranda Mirouevich v Hiţh Authonlv o/the ECSC, [1954—1956] ECR 333, 349 artd 350.