1 BY AN APPLICATION RECEIVED AT THE COURT REGISTRY ON 11 NOVEMBER 1982 , MRS DESIREE TREFOIS , A FORMER PROBATIONARY OFFICIAL AT THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES IN GRADE C 5 , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF 5 MAY 1982 TERMINATING HER PROBATIONARY PERIOD WITHOUT ESTABLISHING HER , THE PROBATION REPORT DRAWN UP PRIOR TO THAT DECISION AND THE DECISION OF THE PRESIDENT OF THE COURT OF 23 SEPTEMBER 1982 REJECTING HER COMPLAINT .
2 ACCORDING TO THE FILE , THE APPLICANT WAS FIRST RECRUITED AS AN AUXILIARY AGENT AND ASSIGNED TO THE TRANSLATION DIRECTORATE OF THE COURT OF JUSTICE ; SHE THEN ENTERED FOR INTERNAL COMPETITION NO CJ 38/80 BASED ON QUALIFICATIONS AND TESTS , FOR THE RECRUITMENT OF A CLERICAL ASSISTANT IN THE DOCUMENTATION AND LIBRARY DIRECTORATE ( LIBRARY DIVISION ) AND WAS PLACED FIRST ON THE LIST OF SUITABLE CANDIDATES . SUBSEQUENTLY , THE APPLICANT WAS APPOINTED A PROBATIONARY OFFICIAL IN THAT POST IN GRADE C 5 , WITH EFFECT FROM 1 AUGUST 1981 . IN FACT , SHE DID NOT ACTUALLY TAKE UP HER DUTIES UNTIL 1 OCTOBER 1981 .
3 ON 24 MARCH 1982 , THE HEAD OF THE LIBRARY DIVISION , IN HIS CAPACITY AS THE DIRECT SUPERIOR OF THE APPLICANT , DREW UP THE REPORT AT THE END OF THE PROBATIONARY PERIOD PROVIDED FOR BY THE STAFF REGULATIONS . IN THE SPACE FOR THE ASSESSMENT OF ABILITY , EFFICIENCY , AND CONDUCT IN THE SERVICE - IN WHICH THE POSSIBLE MARKS ARE : EXCELLENT , VERY GOOD , GOOD , SATISFACTORY , UNSATISFACTORY - THE HEAD OF THE LIBRARY DIVISION ENTERED ' ' SATISFACTORY ' ' FOR THE KNOWLEDGE NEEDED FOR THE POST HELD , INITIATIVE , ABILITY TO ORGANIZE , RELATIONS IN THE DEPARTMENT , RELATIONS WITH OTHERS AND PUNCTUALITY . HOWEVER , HE ENTERED MARKS OF ' ' UNSATISFACTORY ' ' FOR JUDGMENT AND ADAPTABILITY , MENTIONING ' ' PHYSICAL UNSUITABILITY ' ' UNDER SENSE OF RESPONSIBILITY AND DEVOTION TO DUTY , WITH THE FURTHER MENTIONS ' ' FREQUENT ABSENCES ' ' AND ' ' LIMITED INTEREST ' ' , AND FOR THE QUALITY OF WORK AND SPEED WITH WHICH WORK IS PERFORMED WITH THE COMMENT ' ' THE RESULT OF ABSENCES ' ' .
4 IN THE STATEMENT OF REASONS , AFTER A DESCRIPTION OF THE APPLICANT ' S MAIN DUTIES , WHICH INVOLVED THE DAILY TRANSPORTATION AND STORAGE OF BOOKS , THE HEAD OF THE LIBRARY DIVISION STATED THAT ' ' THE LARGE NUMBER OF BOOKS TO BE HANDLED DAILY REQUIRES A CERTAIN PHYSICAL STRENGTH ON THE PART OF THE PERSON CARRYING OUT THESE DUTIES ; IN MY OPINION MRS TREFOIS ' S STRENGTH IS NOT SUFFICIENT ' ' . HE ADDED THAT IN HER DUTIES OF STOCKROOM ASSISTANT , WHICH REQUIRED A REGULAR ATTENDANCE , IN PARTICULAR TO AVOID BACKLOGS BUILDING UP , IT HAD BEEN NOTED THAT THE APPLICANT ' ' IS FREQUENTLY ABSENT FOR FAMILY OR HEALTH REASONS ' ' AND THAT HER ' ' VERY LIMITED INTEREST IN THE WORK ' ' WAS EXPLAINED BY THE PREFERENCE WHICH SHE HAD EXPRESSED FOR SECRETARIAL WORK .
5 IN CONCLUSION , BECAUSE OF THE APPLICANT ' S LACK OF INTEREST IN HER DUTIES , ABSENCE OF CONTINUITY IN THE WORK AND HER PHYSICAL UNSUITABILITY FOR THE DUTIES INHERENT IN THE POST OF STOCKROOM ASSISTANT , THE HEAD OF THE LIBRARY DIVISION PROPOSED THAT THE APPLICANT SHOULD NOT BE ESTABLISHED .
6 THAT REPORT WAS COMMUNICATED TO THE APPLICANT , AND ON 29 MARCH 1982 SHE SUBMITTED HER COMMENTS WHICH WERE ANNEXED TO THE REPORT .
7 BY DECISION OF 5 MAY 1982 , TAKEN PURSUANT TO ARTICLE 34 OF THE STAFF REGULATIONS AND ON THE BASIS OF THE PROBATION REPORT , THE PRESIDENT OF THE COURT , IN HIS CAPACITY AS THE APPOINTING AUTHORITY , TERMINATED THE APPLICANT ' S PROBATIONARY PERIOD WITHOUT ESTABLISHING HER .
8 ON 3 JUNE 1982 , THE APPLICANT SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , IN WHICH SHE SET OUT HER POSITION ON THE VARIOUS CRITICISMS OF HER IN THE PROBATION REPORT .
9 ON RECEIVING THAT COMPLAINT , THE PRESIDENT OF THE COURT REQUESTED SUPPLEMENTARY INFORMATION FROM THE DIRECTOR OF THE LIBRARY AND DOCUMENTATION DIRECTORATE AND THE HEAD OF THE LIBRARY DIVISION . IN A MEMORANDUM DATED 8 JULY 1982 , THE HEAD OF THE LIBRARY DIVISION STATED THAT DURING THE PROBATIONARY PERIOD THE APPLICANT ' S STATE OF MIND AND EFFICIENCY AT WORK WERE SUBJECT TO FREQUENT AND UNPREDICTABLE CHANGES , SHE WAS ABSENT FROM HER WORKPLACE FOR HOURS WITHOUT SAYING WHERE SHE WAS GOING , THAT BOOKS PILED UP REGULARLY WITHOUT BEING REPLACED ON THE SHELVES AND THAT REPLACEMENT THEREFORE REQUIRED ' ' A PHYSICAL EFFORT WHICH CAN SCARCELY BE ASKED OF A WOMAN ' ' , THAT BOOKS PUT ON TO THE SHELVES WERE NOT ARRANGED IN ANY ORDER , SO THAT CONSULTATION BECAME IMPOSSIBLE UNTIL THEY WERE EVENTUALLY SORTED OUT AND PUT BACK WHERE THEY BELONGED , AND FINALLY THAT RELATIONS WITH THE APPLICANT WERE DIFFICULT BOTH FOR HER COLLEAGUES WHO HAD TO STAND IN FOR HER AND FOR HER SUPERIORS , WHO COULD NOT MAKE HER FOLLOW THEIR INSTRUCTIONS . REPEATED WARNINGS GIVEN TO HER HAD MADE NO DIFFERENCE . THE HEAD OF THE LIBRARY DIVISION OBSERVED THAT IT WAS IN ORDER TO GIVE HER AN OPPORTUNITY TO IMPROVE THAT HE HAD NOT ASKED FOR HER TO BE DISMISSED EVEN BEFORE THE END OF THE PROBATIONARY PERIOD .
10 THE DIRECTOR OF THE LIBRARY AND DOCUMENTATION DIRECTORATE , IN A MEMORANDUM OF THE SAME DATE , ADDED THAT THE APPLICANT WAS CARELESS , IN PARTICULAR IN RELATION TO ENTERING CARDS SHOWING WHICH BOOKS HAD BEEN BORROWED AND LOCKING THE LIBRARY DURING THE HOURS IN WHICH IT WAS NOT SUPERVISED .
11 THOSE ADDITIONAL OBSERVATIONS WERE COMMUNICATED TO THE APPLICANT ON 16 JULY 1982 . IN A MEMORANDUM DATED 29 JULY 1982 ADDRESSED TO THE PRESIDENT OF THE COURT , SHE REPLIED AT LENGTH .
12 HAVING REGARD TO ALL THE DOCUMENTS PUT BEFORE HIM , THE PRESIDENT OF THE COURT ON 23 SEPTEMBER 1982 ADOPTED A REASONED DECISION REJECTING THE APPLICANT ' S COMPLAINT . IN THAT DECISION , THE PRESIDENT REFERRED TO THE ASSESSMENTS OF THE APPLICANT BY HER SUPERIORS AND STATED THAT THE PROBATION REPORT CONTAINED NO LESS THAN FOUR MARKS OF ' ' UNSATISFACTORY ' ' COMPARED WITH SIX OTHERS WHICH WERE ONLY ' ' SATISFACTORY ' ' . THE PRESIDENT THEN SET OUT IN THE FOLLOWING TERMS THE REASON FOR THE DECISION TAKEN : ' ' FREQUENT ABSENCES FROM THE DEPARTMENT FOR REASONS OTHER THAN LEAVE DULY GRANTED , BACKLOGS OF BOOKS TO BE REPLACED , LACK OF METHOD , FAILURE TO TAKE ACCOUNT OF THE WARNINGS AND REMINDERS GIVEN BY SUPERIORS . ' '
13 THE APPLICANT BASES HER APPLICATION ON THREE SUBMISSIONS RELATING TO THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS , MISUSE OF PROCEDURE AND UNLAWFUL SEX DISCRIMINATION . IN FACT , THOSE THREE SUBMISSIONS COVER TWO TYPES OF CRITICISM OF THE SUCCESSIVE DECISIONS ADOPTED IN RELATION TO THE APPLICANT : FIRST , IRREGULARITIES IN THE PROCEDURE WHICH RESULTED IN THE DECISION NOT TO ESTABLISH HER AT THE END OF HER PROBATIONARY PERIOD , AND SECONDLY , VARIOUS COMPLAINTS CONCERNING THE ASSESSMENTS ON WHICH THE DECISION WAS BASED . IT IS IN THAT ORDER THAT THE COMPLAINTS WILL BE EXAMINED BELOW . COMPLAINTS IN RELATION TO PROCEDURE AND FORM
14 THE APPLICANT COMPLAINS FIRST THAT HER PROBATION REPORT WAS NOT DRAWN UP WITHIN THE PERIOD LAID DOWN IN ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS , WHICH PROVIDES THAT : ' ' NOT LESS THAN ONE MONTH BEFORE THE EXPIRY OF THE PROBATIONARY PERIOD , A REPORT SHALL BE MADE ON THE . . . PROBATIONER . . . . ' '
15 IT IS CLEAR FROM THE FOREGOING THAT THE APPLICANT ACTUALLY BEGAN HER PROBATIONARY PERIOD ON 1 OCTOBER 1981 . ACCORDING TO ARTICLE 34 ( 2 ), THE PROBATION REPORT OUGHT THEREFORE TO HAVE BEEN DRAWN UP BEFORE 1 MARCH 1982 . IN FACT , IT WAS DRAWN UP ON 24 MARCH .
16 THAT DELAY IS NOT , HOWEVER , OF SUCH A KIND AS TO AFFECT THE APPLICANT ADVERSELY . IN FACT , THE AIM OF THE ABOVE-MENTIONED PROVISION IS TO ENSURE THAT THE DECISION WHETHER OR NOT TO ESTABLISH A PROBATIONARY OFFICIAL CAN BE MADE BEFORE THE EXPIRY OF THE PROBATIONARY PERIOD . IN THE APPLICANT ' S CASE , THAT DECISION WAS MADE ON 5 MAY 1982 . THAT DID NOT PLACE THE APPLICANT AT A DISADVANTAGE , SINCE SHE REMAINED IN HER POST AND WAS PAID AS A PROBATIONARY OFFICIAL DURING THAT PERIOD . IT THEREFORE FOLLOWS THAT THE COMPLAINT MUST BE REJECTED . THE APPLICANT CLAIMS , SECONDLY , THAT HER PROBATIONARY REPORT , WHICH FORMED THE BASIS OF THE DECISION NOT TO ESTABLISH HER , WAS LATER SUPPLEMENTED BY FRESH COMMENTS MADE BY HER SUPERIORS WHICH IN SOME RESPECTS ' ' SHIFTED ' ' AND ENLARGED UPON THE REASONS PREVIOUSLY PUT FORWARD . THAT AMOUNTED TO A MISUSE OF PROCEDURE , WHICH VITIATED THE DECISION TAKEN .
17 THAT ARGUMENT CALLS FOR THE FOLLOWING REMARKS . SINCE THE APPLICANT AVAILED HERSELF OF HER RIGHT TO SUBMIT A COMPLAINT AGAINST THE DECISION NOT TO ESTABLISH HER TAKEN AT THE END OF HER PROBATIONARY PERIOD , IT WAS NATURAL FOR THE APPOINTING AUTHORITY TO ASK FOR EXPLANATIONS AND SUPPLEMENTARY INFORMATION FROM THE HEADS OF THE DEPARTMENTS CONCERNED .
18 IN ORDER TO DETERMINE WHETHER THE CONTESTED MEASURES ARE LAWFUL , IT IS NECESSARY TO CONSIDER BOTH THE DECISION ADOPTED ON THE BASIS OF THE PROBATION REPORT AND THE DECISION UPHOLDING THE FIRST DECISION TAKEN IN THE LIGHT OF FURTHER INVESTIGATION , AS A RESULT OF THE APPLICANT ' S COMPLAINT .
19 IT SHOULD BE STRESSED IN THAT REGARD THAT THE APPLICANT ' S VIEWS IN RELATION TO BOTH THE PROBATION REPORT ITSELF AND THE SUPPLEMENTARY OBSERVATIONS BY THE HEADS OF DEPARTMENT FOLLOWING HER COMPLAINT WERE DULY HEARD . BOTH PARTIES WERE HEARD AT EVERY STAGE AND THE APPLICANT HAD THE OPPORTUNITY , BEFORE THE FINAL DECISION WAS TAKEN BY THE COMPETENT AUTHORITY , OF SUBMITTING HER POINT OF VIEW ON ALL THE CRITICISMS OF HER BEHAVIOUR DURING THE PROBATIONARY PERIOD .
20 THE COMPLAINT OF MISUSE OF PROCEDURE MUST THEREFORE ALSO BE REJECTED . COMPLAINTS CONCERNING THE ASSESSMENT ON WHICH THE DECISION NOT TO ESTABLISH THE APPLICANT WAS BASED
21 IN THE VIEWS EXPRESSED BY THE APPLICANT DURING THE ADMINISTRATIVE PROCEDURE AND IN HER APPLICATION , SHE WAS AT PAINS TO REFUTE VARIOUS CRITICISMS MADE BY HER SUPERIORS REGARDING HER CONDUCT AND HER WORK DURING THE PROBATIONARY PERIOD . SHE CONTESTED IN PARTICULAR THE ACCUSATION THAT SHE DISPLAYED A LACK OF INTEREST IN HER DUTIES CLAIMING THAT THAT WAS A SUBJECTIVE ASSESSMENT AND ONLY THE ACTUAL PERFORMANCE OF THE DUTIES ENTRUSTED TO HER SHOULD BE TAKEN INTO ACCOUNT . SHE ALSO REGARDED AS UNJUSTIFIED THE COMPLAINT CONCERNING HER ABSENTEEISM , STRESSING , ON THE ONE HAND , THAT HER ABSENCES ON FAMILY OR HEALTH GROUNDS WERE DULY AUTHORIZED AND , ON THE OTHER , THAT IT WAS INHERENT IN THE NATURE OF HER DUTIES THEMSELVES , WHICH INVOLVED VARIOUS RESPONSIBILITIES , THAT SHE WAS FREQUENTLY ON THE MOVE WITHIN THE COURT BUILDING . FINALLY , SHE REGARDS AS UNJUSTIFIED THE COMPLAINT OF PHYSICAL UNSUITABILITY , SINCE WHEN SHE WAS RECRUITED , THE ADMINISTRATION WAS PERFECTLY AWARE OF THE NATURE OF THE DUTIES TO BE CARRIED OUT ; THE ADMINISTRATION WAS INFLUENCED IN ITS ACTION BY GROUNDS BASED ON DISCRIMINATION AGAINST WOMEN PERFORMING CERTAIN TYPES OF WORK .
22 IN ORDER TO DECIDE ON THOSE COMPLAINTS , IT IS NECESSARY TO SET OUT THE PRINCIPLES OF THE STAFF REGULATIONS IN RELATION TO RECRUITMENT AND THE PROBATIONARY PERIOD .
23 ARTICLE 27 OF THE STAFF REGULATIONS PROVIDES THAT ' ' RECRUITMENT SHALL BE DIRECTED TO SECURING FOR THE INSTITUTION THE SERVICES OF OFFICIALS OF THE HIGHEST STANDARD OF ABILITY , EFFICIENCY AND INTEGRITY . . . ' ' . THERE ARE TWO CONSECUTIVE PROCEDURES FOR ASCERTAINING WHETHER THOSE CONDITIONS ARE MET , NAMELY RECRUITMENT COMPETITIONS AND THE COMPLETION OF THE PROBATIONARY PERIOD BEFORE ESTABLISHMENT .
24 WHILST THE RECRUITMENT COMPETITIONS ARE DESIGNED TO PERMIT THE SELECTION OF CANDIDATES ON THE BASIS OF GENERAL CRITERIA DIRECTED TO THE CANDIDATE ' S FUTURE SUITABILITY , THE PURPOSE OF THE PROBATIONARY PERIOD 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 . 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 QUALITITIES AND CONDUCT OF THE PROBATIONARY OFFICIAL , TAKING ACCOUNT OF BOTH THE POSITIVE AND THE NEGATIVE FACTORS REVEALED IN THE COURSE OF THE PROBATIONARY PERIOD .
25 SINCE THE DECISION NOT TO ESTABLISH A PROBATIONARY OFFICIAL IS GENERALLY , ALBEIT IMPROPERLY , DESCRIBED AS ' ' DISMISSAL ' ' , ATTENTION SHOULD BE DRAWN TO THE FUNDAMENTAL DIFFERENCE BETWEEN THAT DECISION AND DISMISSAL IN THE STRICT SENSE OF A PERSON WHO HAS BEEN APPOINTED AN ESTABLISHED OFFICIAL . 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 ESTABLISHMENT OF THE PROBATIONARY OFFICIAL IS IN THE INTERESTS OF THE SERVICE .
26 IT IS IN THE LIGHT OF THOSE CRITERIA THAT THE GROUNDS TAKEN INTO CONSIDERATION BY THE APPOINTING AUTHORITY , IN ORDER TO JUSTIFY ITS DECISION OF 5 MAY 1982 TERMINATING THE APPLICANT ' S PROBATIONARY PERIOD WITHOUT ESTABLISHING HER AND ITS DECISION OF 23 SEPTEMBER 1982 DISMISSING HER COMPLAINT , MUST BE ASSESSED .
27 EVEN THOUGH CERTAIN DETAILS IN THE STATEMENT OF REASONS , SUCH AS THE DETERMINATION OF THE TRUE REASONS FOR THE APPLICANT ' S ABSENCES , MAY BE OPEN TO DISCUSSION , BOTH THE PROBATION REPORT AND THE SUPPLEMENTARY OBSERVATIONS BY THE HEADS OF DEPARTMENT PAINT A PICTURE OF A PROBATIONARY OFFICIAL WHO , ON THE BASIS OF A COMPREHENSIVE ASSESSMENT , DOES NOT SATISFY THE STANDARDS OF ABILITY AND EFFICIENCY REQUIRED BY ARTICLE 27 OF THE STAFF REGULATIONS . THE APPLICANT ' S OBSERVATIONS ON A NUMBER OF SPECIFIC POINTS ARE NOT OF SUCH A KIND AS TO CAST DOUBT ON THE CORRECTNESS OF ALL THE ASSESSMENTS MADE BY THE HEADS OF DEPARTMENT IN THE EXERCISE OF THEIR DISCRETIONARY POWERS .
28 AS FOR THE OBSERVATIONS ON THE APPLICANT ' S UNSUITABILITY FOR THE PHYSICAL DUTIES INVOLVED IN THE POST OF STOCKROOM ASSISTANT , THEY DO NOT APPEAR , IN SPITE OF THE UNFORTUNATE WORDING USED BY THE AUTHOR OF THE PROBATION REPORT , TO BE THE RESULT OF A PREJUDICE ON THE PART OF THE ADMINISTRATION IN RELATION TO THE APPLICANT ' S SEX , BUT ARE THE RESULT OF AN INDIVIDUAL ASSESSMENT BASED ON OBSERVATION OF THE APPLICANT AS SHE CARRIED OUT HER DAILY DUTIES . IT THEREFORE DOES NOT APPEAR THAT THE ADMINISTRATION INFRINGED THE PRINCIPLE OF EQUALITY OF OPPORTUNITY FOR MALE AND FEMALE WORKERS IN ALSO TAKING INTO ACCOUNT , AT THE END OF A PROBATIONARY PERIOD REGARDED AS DISAPPOINTING IN EVERY RESPECT , THE FACT THAT THE PHYSICAL CONDITION OF THE PERSON CONCERNED SEEMED ILL-SUITED TO THE REQUIREMENTS OF THE POST FOR WHICH SHE HAD APPLIED .
29 THUS IT APPEARS THAT THE APPOINTING AUTHORITY DID NOT , IN ASSESSING THE OUTCOME OF THE APPLICANT ' S PROBATIONARY PERIOD , EXCEED THE LIMITS OF THE DISCRETIONARY POWER WHICH IT MUST BE RECOGNIZED AS ENJOYING IN RELATION TO APPOINTMENT AND ESTABISHMENT , SINCE THE APPLICANT HAS NOT SUCCEEDED IN ESTABLISHING THAT THAT ASSESSMENT WAS VITIATED 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 .
30 IN CONSEQUENCE THE SUBMISSIONS RELATING TO THE ASSESSMENT OF THE FACTS ON WHICH THE DECISION NOT TO ESTABLISH THE APPLICANT IS BASED MUST ALSO BE REJECTED .