CELEX: 61985CC0075
Language: en
Date: 1986-05-29
Title: Opinion of Mr Advocate General Darmon delivered on 29 May 1986. # V. R. v Commission of the European Communities. # Official - Dismissal of a probationary official. # Case 75/85.

OPINION OF MR ADVOCATE GENERAL DARMON
      delivered on 29 May 1986 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               This action challenges the validity of a decision taken by the Commission, acting in its capacity of appointing authority, to dismiss a probationary official after an extension of his probationary period.
               The facts are as follows:
               Mr R, who was born in September 1951, has a degree in physics and specializes in statistics. He passed the tests in Open Competition No COM/A/313 (notice of which was published in Official Journal No C 233 of 12 September 1981, p. 14), which was held by the Commission in order ‘to constitute a reserve of administrators in the career bracket covering Grades 7 and 6 of Category A... ’ to fill posts involving ‘administrative, advisory and supervisory duties... relating to the economic aspects of Community activity’.
               In their applications candidates had to indicate one or two options from the four available options:
               
                        ‘(1)
                     
                     
                        Econometrics and statistics.
                     
                  
                        (2)
                     
                     
                        Development policy and provision of aid to developing countries.
                     
                  
                        (3)
                     
                     
                        Macroeconomics, including monetary and fiscal policy.
                     
                  
                        (4)
                     
                     
                        Microeconomics, including business economics, the labour market and business finance.’
                     
                  According to the Commission, and his file confirms this, Mr R chose options 1 and 3.
               By letter dated 17 March 1983 the Commission informed him that, subject to his express acceptance, he would be appointed as a probationary administrator (Grade A 6, Step 1) in the directorate dealing with economic structure and Community intervention within Directorate-General II, Economic and Financial Affairs. Mr R indicated his acceptance and he was appointed to such a post in the special department ‘Community loans — Development of instruments’ as from 15 July 1983 by decision of 2 August 1983. The decision referred to Vacancy Notice No 305/82, which described the duties in question as follows:
               ‘Administrative and advisory duties, on the basis of general guidelines, in matters of economic analysis, with particular regard to:
               
                        —
                     
                     
                        Surveying areas of activity for the Community's borrowing/loan instruments more particularly covered by the New Community Instrument’,
                     
                  and stated the qualifications required for the post.
               However, that was not the post in which Mr R took up his duties. On 15 July 1983 he began his probationary period, not in Directorate B but in Directorate C — Macroeconomic analyses and policies, Division II-C-4—Medium-term Projections. Apparently, by decision dated 1 August 1983, the Director of Personnel had decided ‘in the interests of the service’ to change ‘the allocation of the post... and its holder’ by transferring both from Directorate B to Directorate C in the same Directorate-General.
               In an end-of-probation report drawn up on 21 March 1984 pursuant to Article 34 (2) of the Staff Regulations it was stated that Mr R, whose qualities were recognized in other respects, did not have sufficient ability to perform the duties corresponding to his post because, in particular, his knowledge with regard to the post held was ‘insufficient’. It was also stated that the quality of his work was itself inadequate.
               Those assessments, set out in an analytical table, are explained by the following general assessment:
               
                        (i)
                     
                     
                        ‘Mr R undoubtedly possesses high qualifications in mathematical statistics and in data-analysis techniques. His knowledge of macroeconomics is, however, more limited and his ability to write reports has proved inadequate. In regard to the requirements of a normal career in DG II, we are of the opinion that Mr R's abilities are not such as to enable him to play an adequate part in the Directorate-General's main activities, namely conducting economic policy studies and drawing up reports on them. Consequently, DG II is unable to recommend the establishment of Mr R as a member of its permanent staff.
                     
                  
                        (ii)
                     
                     
                        However, it must be emphasized that Mr R would undoubtedly be a very useful official in activities more directly related to his theoretical and technical knowledge of data handling and statistics.’
                     
                  The Director therefore recommended ‘that the probationary official be dismissed at the end of his probationary period’.
               When requested to submit his observations on that report Mr R stated that it seemed extremely severe to him, stressed his goodwill and pointed out that he would prefer a post in ‘econometrics and statistics’ in DG II. He also stated that he was ‘ready to work for any directorate having statistical and quantitative analysis work’.
               By letter dated 18 April 1984, three days after the expiry of the end of the probationary period fixed by the Staff Regulations, the Director of Personnel informed Mr R that in view of the report dated 21 March 1984 he had no alternative but to conclude that he should be ‘dismissed’ but that, in view of his observations and certain points made by his director, he was prepared to extend the probationary period by three months, with his agreement, so as to ‘give him a further opportunity to prove his abilities’ by asking him to make a ‘comparative analysis of a statistical nature for Directorate-General II and the Statistical Office’ under the supervision of Mr Dewaleyne and Mr Chantraine.
               Mr R accepted that proposal. The details of the study, the description of which was sent to the applicant on 25 April 1984 by Mr Dewaleyne, were laid down in June 1984 during a meeting between Mr R and Mr Chantraine who confirmed it in a letter sent to the applicant on 20 June. On 6 July 1984 Mr R submitted his study to his two ‘tutors’, who made their report on it four days later, on 10 July.
               Whilst emphasizing Mr R's theoretical knowledge and his efforts to suggest solutions to the problem set, the report was unfavourable. The ‘tutors’ noted in particular that Mr R ‘lacked the ability to synthesize’, reflected ‘in his difficulty in distinguishing between the essential and the minor’, that he showed ‘an inability to step back from the statistics to see the significance of the phenomena observed' and that he was prone to ’an excessive use of scientific language which was obscure even to the readers for whom this kind of report is generally intended'. They concluded that the study ‘does not enable any useful conclusions to be drawn, such as a reader might expect’.
               On 19 July 1984 the appointing authority decided to ‘dismiss’ Mr R with effect from 31 August 1984.
               That decision refers first of all to the probation report of 21 March 1984. It then states that the assessments are confirmed by those relating to the study carried out in the supplementary probation period and the conclusion is drawn that Mr R has not ‘shown sufficient professional aptitude to be established in the grade relating to his post’.
               On 8 August Mr R lodged a complaint under Article 90 (2) of the Staff Regulations which was expressly rejected on 13 December 1984.
            
         
               2. 
            
            
               On 21 March 1985 Mr R brought an action for the annulment of the Commission decisions, in particular the decision of 19 July 1984, as well as any act preliminary to those decisions, and secondly for compensation for material and non-material damage. In the alternative he seeks an order requiring the Commission ‘to change the statement of reasons in the contested decisions so that they are not defamatory’.
               The appeal is based on three submissions:
               
                        (i)
                     
                     
                        infringement of essential procedural requirements,
                     
                  
                        (ii)
                     
                     
                        infringement of Articles 4 and 34 of the Staff Regulations and of the prohibition of discrimination,
                     
                  
                        (iii)
                     
                     
                        damage caused to the applicant owing to the extension of his probationary period and the effect on his professional reputation.
                     
                  
         
               3. 
            
            
               The submission alleging infringement of essential procedural requirements must be examined in the context of the second paragraph of Article 25 of the Staff Regulations which provides that ‘any decision adversely affecting an official shall state the grounds on which it is based’.
               According to the applicant, the contested decision does not comply with that obligation in so far as it is based on the reports of 21 March and 10 July 1984. The first of those reports is badly reasoned since it does not specify the knowledge Mr R allegedly lacks. The only shortcoming for which he is expressly criticized is his allegedly poor ability to write reports which, in his view, is an ‘inadequate’ ground for dismissal. As regards the report of 10 July 1984, the applicant claims that it reveals a manifest error of assessment. He cannot legitimately be criticized for lacking the ability to synthesize when he was asked to make an analysis. Nor can he be criticized for using scientific language in a technical study. To support his contentions, Mr R has produced two evaluations of his study by two professors of Rome University. According to the first academic, the study has definite scientific value. According to the second, the language used is not unusually technical.
               At the end of his arguments on this point Mr R asks the Court to declare that ‘the contested decisions contain contradictory and manifestly erroneous statements of reasons so that they must be regarded as invalid on the ground that they infringe essential procedural requirements’.
            
         
               4. 
            
            
               It is therefore the manifest error of assessment in the statement of reasons rather than the actual infringement of essential procedural requirements which is the ground relied upon by the applicant in this case.
               In such matters the case-law of the Court clearly defines the scope and limits of the Court's power of review.
               The statement of the reasons on which a decision adversely affecting an official is based must enable the official concerned to know why it was adopted so as to enable him inter alia to take steps to defend his rights under the Staff Regulations, and so as to enable the Court to review the legality of the measure in question (judgment of 1 June 1983 in Joined Cases 36, 37 and 218/81 Seton v Commission [1983] ECR 1789, paragraph 47 at p. 1813, and judgment of 1 December 1983 in Case 18/83 Morina v Parliament [1983] ECR 4051, paragraph 11 at p. 4058).
               In this regard the contested decision and the reports on which it is based appear to me to comply with the criteria which the Court has laid down.
               The grounds relied upon by the appointing authority were clearly indicated to the applicant. In exercising its powers of review the Court must therefore have regard to the powers of assessment which the administration has in the area in question. As regards the principles applicable to statements of reasons for administrative decisions adopted at the end of a probationary period, it is appropriate to quote from the Court's judgment in Trefots v Court of Justice judgment of 17 November 1983 in Case 290/82 [1983] ECR 3751).
               After pointing out the complementary roles of
               ‘recruitment competitions ... designed to permit the selection of candidates on the basis of general criteria directed to the candidate's future suitability’
               and of the probationary period, the purpose of which is to
               ‘enable the administration to make a more concrete assessment of the candidate's suitability for a particular post, the manner in which he performs his duties and his efficiency in the service’ (paragraph 24 at p. 3766),
               the Court drew attention to the ‘fundamental difference’ between
               
                        (i)
                     
                     
                        ‘the decision not to establish a probationary official... generally, albeit improperly, described as ‘dismissal’ ... and dismissal in the strict sense of a person who has been appointed an established official’ (paragraph 25 at p. 3767).
                     
                  
                        (ii)
                     
                     
                        ‘Whilst in the latter case the grounds justifying the termination of the employment of an established official must be examined in detail, in decisions on the establishment of probationary officials, it is necessary to examine whether or not there are a number of positive considerations showing that the establishment of the probationary official is in the interests of the service’ (same paragraph).
                     
                  Therefore,
               ‘at the end of the probationary period, the administration must be in a position to determine, without being bound by the assessments made at the time of recruitment, whether the probationary official deserves to be established in the post to which he aspires. That decision involves a comprehensive assessment of the qualities and conduct of the probationary official, taking account of both the positive and negative factors revealed in the course of the probationary period’ (paragraph 24, at p. 3766).
               That assessment might be vitiated only by
               manifest errors of fact or reasons inconsistent with the objectivity of the administration in weighing up the abilities and the work performed by its probationary officials (paragraph 29, at p. 3768)
               which were for the applicant to establish.
               I consider that such proof has not been adduced. There is in fact no evidence to suggest that the assessment concerning the shortcomings mentioned in the report of 21 March 1984 was unobjective or vitiated by manifest error. Mr R's protests at the time do not constitute proof nor, as far as the report of 10 July 1984 is concerned, do the ‘experts’ reports prepared at his request by two professors at Rome University.
               On the contrary, the report of 21 March 1984 clearly indicates the shortcomings for which Mr R is criticized; they relate to his knowledge and to his ability to write reports. Unless it is the result of a misuse of power, which is not alleged, or contradictory or vitiated by manifest error, which has not been established, such an assessment is a discretionary matter, as are the conclusions drawn from it regarding establishment. The same observation applies to the evaluation of the study carried out during the supplementary probationary period. The report of 10 July 1984 does not reveal any manifest error or contradiction either, and Mr R cannot seriously contend that, since an analysis was required, he cannot be criticized for not having the ability to synthesize when the memorandum from Mr Chantraine dated 20 June 1984, which he does not deny having received, twice states that he is asked to write a synthesis.
               Mr R's first submission therefore appears to me completely unfounded.
            
         
               5. 
            
            
               Similarly, I do not regard as well-founded the alleged infringement of Article 4 of the Staff Regulations, which provides that
               ‘no appointment or promotion shall be made for any purpose other than that of filling a vacant post as provided for in the Staff Regulations’ (first paragraph).
               Mr R was re-assigned together with his post at the same time as he was appointed. The appointing authority's two decisions of 1 and 2 August, taking effect the same day, must therefore be regarded as a single measure assigning the applicant to Directorate-General II, Directorate C, Division II-C-4. Incidentally, it has not been alleged that the re-assignment was contrary to the criteria laid down in the case-law of the Court (see, for example, its judgment of 14 July 1983 in Case 176/82 Nebe v Commission [1983] ECR 2475, paragraph 17 at p. 2486); those criteria are the interests of the service and the principle that an official's post must correspond to his grade.
               Although the decision of 2 August expressly referred to Vacancy Notice No COM/305/82 relating to a post in Division B-4, that fact is not sufficient to suggest an infringement of Article 4 of the Staff Regulations on which Mr R could usefully rely. That provision, in particular the second paragraph, must in fact be read in conjunction with Article 29 (1). As suggested in the Commission's observations, the purpose of a vacancy notice must be to ensure compliance with the order in which applications for a vacant post must be considered, Community servants having priority in this regard over external candidates. Only Community servants could therefore rely on the contents of the vacancy notice or the fact that it was not published. Moreover, an irregularity in that regard could vitiate only the appointment decision. In this case, however, it is the ‘dismissal’ decision which is challenged.
               Therefore, the only question to arise is whether or not the applicant was assigned to a post corresponding to Notice of Competition No COM/A/313.
               Owing to his success in that competition Mr R could be placed on a reserve list of administrators in career bracket A 7/A 6 to fill posts whose descriptions clearly correspond to those offered in Directorate-General II. The post to which he was initially assigned and which, moreover, he accepted, corresponds to one of the two options which he chose.
               It follows that Mr R's posting does not constitute an infringement of Article 4 of the Staff Regulations or discriminatory treatment in relation to other probationary officials and that consequently the submission is groundless.
            
         
               6. 
            
            
               Mr R also contends that the extension of his probationary period was contrary to Article 34 (1) of the Staff Regulations, which provides that the probationary period for an official in his category is to be nine months. In his view, a probationary official's suitability for the service should be assessed during that period whereas the ‘dismissal’ decision was taken with regard above all to the report drawn up after the supplementary probationary period. His express agreement, which was given under the threat of dismissal and was vitiated by his ‘subordinate relationship’ to the appointing authority, does not permit a derogation to be made from the principle that a protective right conferred by the Staff Regulations cannot be waived.
               The Commission, on the other hand, takes the view that there is nothing to prevent the administration from adopting with regard to one of its servants a measure going beyond the rights conferred on them by the Staff Regulations and which is therefore more favourable to them than the strict application of those regulations. As far as the interpretation of Article 34 is concerned, the Commission refers in this regard to the Court's judgments in Nagels and Di Pillo (judgment of 12 May 1971 in Case 52/70 Nagels v Commission [1971] ECR 365, paragraph 16 at p. 371 and judgment of 12 July 1973 in Joined Cases 10 and 42/72 Di Pillo v Commission [1973] ECR 763) and states that, when considering express and even implied extensions of probationary periods, the Court has never held them to be invalid and it quotes from the Opinion delivered in Di Pillo by Mr Advocate General Trabucchi, who stated inter alia that:
               ‘in a sound administration of justice, a more thorough examination of a situation can never be alleged as a ground of invalidity’.
               At the hearing, the applicant observed that the provision relied upon had been amended and that the version applicable in the cases cited above did not govern this case.
               Article 34 has indeed been reworded several times. Initially it provided, except in the case of officials in Grades A 1 and A 2, which it has always excluded from its scope, for a uniform probationary period of six months which ‘in exceptional cases’ could be extended on the initiative of the administration for a further period not exceeding three months. That was the version applied in the cases of Mr Nagels and Mr Di Pillo. Their probationary periods were extended by three months as provided for in the Staff Regulations. Mr Nagels was also granted a second extension of two months to make up for two months' absence on sick leave.
               Two amendments, made in 1972 (Regulation No 1473/73 of 30 June 1972, Official Journal, L 160 of 16 July 1972, p. 1) and in 1978 (Regulation No 912/78 of 2 May 1978, Official Journal, L 119 of 3 May 1978, p. 1), gave that article its present form as applicable to this case.
               In the case of servants in the category concerned, the length of the probationary period was increased from six to nine months in 1972. The provision allowing the probationary period to be extended was accordingly deleted and it was not until the Staff Regulations were revised in 1978 that the possibility of extending the probationary period by a period equal to the length of time in which an official is prevented by sickness or accident from performing his duties was introduced (second subparagraph of Article 34 (1)).
               In other words, those amendments
               
                        (a)
                     
                     
                        increased the probationary period and removed the possibility of extending it in unspecified exceptional cases, and
                     
                  
                        (b)
                     
                     
                        legalized, in the cases of sickness or accident expressly referred to, the practice of extending the probationary period by the length of time for which an official had been prevented from working.
                     
                  Those arrangements leave no place for an extension jointly agreed upon by the administration and the probationary official which would in fact be inconsistent with a relationship governed by the Staff Regulations.
               I would point out that that was not the case in Nagels and Di Pillo; the officials in those cases were servants whose probationary periods were extended by unilateral decisions of the administration which did not have to obtain their agreement.
               Consequently, I consider that in the absence of a provision in the Staff Regulations allowing an extension of Mr R's probationary period, it could not be extended, even with his agreement and even if such a measure was adopted in the interests of the probationary official concerned, as it clearly was in this case.
               However, does that irregularity affect the legality of the contested decison?
               In order for the lawfulness of a measure — in this case the decision to extend the probationary period — to determine the validity of a later measure — in this case the decision to dismiss — the latter decision must depend on the former. This would apply to the validity of a decision to recruit a person to a post having regard to the lawfulness of the competition procedure giving access to the post. Likewise, the irregular extension of Mr R's probationary period could without doubt have been relied upon by servants having an interest in doing so in order to challenge Mr R's establishment.
               However, Mr R cannot rely on the irregularity of the decision to extend his probationary period in order to challenge a decision which could have — I am tempted to say should have — been taken in the absence of the extension which has rightly been criticized.
               Although the submission put forward by Mr R is well-founded in law, I do not consider that it is capable of vitiating the decision to ‘dismiss’ him, because it simply does not apply.
            
         
               7. 
            
            
               Since, in my view, the main claim for the annulment of that decision cannot be upheld, I must conclude that the ancillary claim for damages must be dismissed. I would observe, moreover, that Mr R has adduced no proof of the damage which he alleges that he suffered as a result of the extension of his probationary period.
               The same applies to the alternative claim. The statement of reasons for any decision to dismiss a member of staff contains in theory and by virtue of the second paragraph of Article 25 of the Staff Regulations assessments disclosing the unsuitability of the person concerned in certain respects for the position in question. That is what happened in this case; though necessarily critical, the statement of reasons does not contain any defamatory statements.
            
         
               8. 
            
            
               Consequently, I conclude that the application should be rejected and that the applicant should bear his own costs.
            
         (
            *1
         )	Translated from the French.