1 THE APPLICATION ASKS FOR THE ANNULMENT OF THE END OF PROBATION REPORT ON THE APPLICANT, THE ANNULMENT OF THE DECISION OF 21 DECEMBER 1971, WHEREBY THE COMMISSION DISMISSED HIM AND COMPENSATION FOR THE LOSS ALLEGED TO HAVE BEEN INCURRED BY THE DISMISSAL . COMPLAINT AS THE LATENESS OF THE END OF PROBATION REPORT
2 THE APPLICANT WAS APPOINTED A PROBATIONER ON 1 MARCH 1971 IN GRADE A 3, UNDER ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS, WHICH ALLOW FOR RECRUITMENT WITHOUT COMPETITION IN EXCEPTIONAL CASES FOR POSTS WHICH REQUIRE SPECIAL QUALIFICATIONS .
3 THE END OF PROBATION REPORT PROVIDED FOR IN ARTICLE 34 OF THE STAFF REGULATIONS SHOULD HAVE BEEN MADE ON 31 JULY 1971 AT THE LATEST UNDER THE PROVISIONS OF ARTICLE 34 AS THEY THEN STOOD .
4 THE REPORT WAS NOT HOWEVER MADE AND COMMUNICATED TO THE APPLICANT UNTIL 4 NOVEMBER .
5 WHILST IT IS TRUE THAT THIS DELAY IN MAKING THE REPORT CONSTITUTES AN IRREGULARITY HAVING REGARD TO THE EXPRESS REQUIREMENTS OF THE STAFF REGULATIONS, THIS IRREGULARITY IS NOT SUCH AS TO CALL IN QUESTION THE VALIDITY OF THE REPORT .
6 THIS COMPLAINT MUST THEREFORE BE REJECTED . COMPLAINTS AS TO DISMISSAL
7 THE END OF PROBATION REPORT BEING UNFAVOURABLE, THE COMMISSION WAS AUTHORISED TO DISMISS THE APPLICANT UNDER ARTICLE 34 ( 2 ), FIRST PARAGRAPH, OF THE STAFF REGULATIONS .
8 THE APPLICANT MAKES THE POINT THAT THE COMMISSION, IN CASE OF DISMISSAL OF A PROBATIONER AFTER EXPIRY OF THE PROBATIONARY, PERIOD, IS OBLIGED TO TAKE THE DECISION WITHIN A REASONABLE TIME, AND THIS TIME WAS EXCEEDED IN THE PRESENT CASE .
9 WHILST THE COMMISSION IS BOUND TO TAKE ITS DECISION WITHIN A REASONABLE TIME, THIS TIME COULD NOT BEGIN TO RUN UNTIL THE END OF PROBATION REPORT WAS MADE AND COMMUNICATED TO THE PERSON CONCERNED .
10 IN THIS CASE, THE COMMENCING DATE FOR CALCULATING THE TIME BEING 4 NOVEMBER, THE DECISION, TAKEN ON 21 DECEMBER, WAS TAKEN WITHIN REASONABLE LIMITS .
11 THE APPLICANT MOREOVER ALLEGES CERTAIN IRREGULARITIES IN THE PROCEDURE FOLLOWED BY THE COMMISSION IN DECIDING HIS CASE .
12 HE CLAIMS FIRST THAT THE DECISION TO DISMISS HIM IS VITIATED BY MISUSE OF POWERS IN THAT IT WAS MOTIVATED BY THE COMMISSION' S DESIRE TO APPOINT AN OFFICIAL OF ANOTHER NATIONALITY TO THE POST HE HELD .
13 THE APPLICANT HAS NOT HOWEVER EVEN BEGUN TO PROVE THAT THIS WAS SO .
14 THE APPLICANT IN ADDITION MAKES THE POINT THAT THE COMMISSION DID NOT ALLOW HIM SUFFICIENT TIME TO SUBMIT HIS COMMENTS AT THE TIME OF THE LETTER WHEREBY IT MADE KNOWN TO HIM ITS INTENTION TO DISMISS HIM .
15 ON THIS POINT IT IS ESTABLISHED THAT THIS LETTER DATED 7 DECEMBER, INVITING THE APPLICANT TO SUBMIT HIS COMMENTS TO THE COMMISSION BY 15 DECEMBER 1971 AT THE LATEST, DID NOT REACH HIM UNTIL 13 DECEMBER .
16 IT FOLLOWS FROM ARTICLE 34 OF THE STAFF REGULATIONS THAT THE COMMISSION HAS TO COMMUNICATE THE END OF PROBATION REPORT TO THE PROBATIONER CONCERNED SO THAT HE CAN FORMULATE HIS OBSERVATIONS, BUT IT IS NOT BOUND TO GIVE HIM ALSO AN OPPORTUNITY TO STATE HIS VIEWS ON THE INTENTION TO DISMISS HIM AS A RESULT OF THE UNFAVOURABLE NATURE OF THE REPORT, EVEN IF THIS CALLS, AS IN THE PRESENT CASE, NOT FOR AN IMMEDIATE DISMISSAL BUT FOR AN EXTENSION OF THE PROBATIONARY PERIOD .
17 IF, IN SUCH CIRCUMSTANCES, THE COMMISSION NEVERTHELESS INVITES THE PROBATIONER TO SUBMIT HIS COMMENTS, THEREBY OBSERVING THE CODE OF GOOD PERSONNEL ADMINISTRATION, THE FACT OF GIVING HIM ONLY A VERY BRIEF PERIOD TO REPLY CANNOT VITIATE THE DISMISSAL .
18 THE COMPLAINTS AS TO DISMISSAL MUST THEREFORE BE REJECTED . CLAIM FOR DAMAGES
19 THE APPLICANT MAKES THE POINT THAT THE IRREGULARITY AND LATENESS OF THE COMMISSION' S ACTS INVOLVED HIM IN LOSSES FOR WHICH THE COMMISSION SHOULD COMPENSATE HIM .
20 THE LOSSES WHICH THE APPLICANT CLAIMS TO HAVE SUFFERED ARE DUE TO CERTAIN MEASURES HE HIMSELF TOOK IN ANTICIPATION OF A DEFINITE APPOINTMENT TO THE POST HE HELD AS A PROBATIONER .
21 SINCE, HOWEVER, THE APPLICANT, IN SPITE OF THE EXTENSION OF HIS PROBATIONARY PERIOD, HAD NO DEFINITE EXPECTATION OF AN APPOINTMENT, THE MEASURES HE TOOK WERE AT HIS OWN RISK .
22 HENCE NO RESPONSIBILITY CAN FALL ON THE COMMISSION .
23 NEVERTHELESS THE DELAY ESTABLISHED IN MAKING THE END OF PROBATION REPORT CONSIDERABLY PROLONGED THE STATE OF UNCERTAINTY IN WHICH THE APPLICANT WAS PLACED AFTER THE EXPIRY, AT THE END OF AUGUST 1971, OF THE PROBATIONARY PERIOD FIXED BY THE STAFF REGULATIONS, AND THIS PREVENTED HIS LOOKING AFTER HIS INTERESTS ADEQUATELY, PARTICULARLY AS TO HIS CAREER AND HIS POSITION GENERALLY .
24 THIS DELAY BEING CONTRARY TO THE PROVISIONS OF THE STAFF REGULATIONS THE COMMISSION IS LIABLE WITHIN THE FRAMEWORK THEREOF .
25 IT IS THEREFORE RIGHT TO REQUIRE THE COMMISSION TO PAY THE APPLICANT COMPENSATION, WHICH, HAVING REGARD TO THE POST HE OCCUPIED, MAY FAIRLY BE DETERMINED AT BF 200 000 .