1 . JURISDICTION THE COURT HAS JURISDICTION IN THE PRESENT CASE ON THE BASIS OF ARTICLE 42 OF THE TREATY IN CONJUNCTION WITH THE SECOND PARAGRAPH OF ARTICLE 12 OF THE LETTER OF APPOINTMENT DATED 12 OCTOBER 1953 WHICH PROVIDES THAT DISPUTES OF AN INDIVIDUAL NATURE ARISING FROM THE APPLICATION OF THE PROVISIONS OF THE LETTER OF APPOINTMENT OR THE REGULATIONS AND DECISIONS RELATING TO STAFF SHALL BE BROUGHT BEFORE THE COURT OF JUSTICE AND ALSO IN CONJUNCTION WITH ARTICLE 50 OF THE PROVISIONAL STAFF REGULATIONS WHICH CONTAINS A SIMILAR PROVISION .
2 . ADMISSIBILITY THE DEFENDANT CONTEST THE ADMISSIBILITY OF THE APPLICATION BECAUSE IT IS OUT OF TIME AND BECAUSE THE APPLICANT HAS TACITLY ACCEPTED THE MEASURES TAKEN IN RESPECT OF HER . THE COURT FINDS AGAINST THE ALLEGATION THAT THE APPLICATION IS OUT OF TIME SINCE NO TIME-LIMIT IS SPECIFIED IN ANY PROVISION APPLICABLE IN THIS CASE EITHER FOR A COMPLAINT THROUGH OFFICIAL CHANNELS OR FOR AN APPLICATION TO THE COURT . THE COURT REJECTS THE DEFENDANT'S ARGUMENT THAT A TIME-LIMIT SIMILAR TO THAT IN ARTICLE 33 OF THE TREATY AND ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE MUST BE APPLIED BY WAY OF ANALOGY . ARTICLE 33 CONCERNS ONLY APPLICATIONS FOR ANNULMENT AGAINST DECISIONS OF THE HIGH AUTHORITY BROUGHT BY MEMBER STATES, THE COUNCIL, UNDERTAKINGS AND THEIR ASSOCIATIONS . ARTICLE 39 OF THE STATUTE FURTHER DECLARES THE TIME LIMIT OF ONE MONTH IN ARTICLE 33 OF THE TREATY APPLICABLE TO ACTIONS RELATING TO PECUNIARY SANCTIONS TAKEN AGAINST UNDERTAKINGS AND ACTIONS IN RELATION TO FUNDAMENTAL AND PERSISTENT DISTURBANCES AFFECTING THE STATES . THE COURT FURTHER DECLARES THAT THE APPLICANT'S ATTITUDE FOLLOWING THE DECISION OF 8 JANUARY 1953 CANNOT BE REGARDED AS ACQUIESCENCE IN THAT MEASURE INVOLVING A WAIVER OF ANY ACTION TO QUESTION THE LEGALITY OF THE SAID MEASURE . PERFORMANCE BY THE APPLICANT OF SUCCESSIVE TASKS REQUIRED OF HER BY THE HIGH AUTHORITY IS NO GROUND FOR DEDUCING THAT SHE ACCEPTED THE CONTESTED MEASURE WITHOUT RESERVATION . MOREOVER THE SIGNING BY THE APPLICANT ON 12 OCTOBER 1953 OF THE LETTER OF APPOINTMENT WITH RETROACTIVE EFFECT TO 9 DECEMBER 1952 DOES NOT IN THE OPINION OF THE COURT CONSTITUTE A MANIFESTATION OF ACQUIESCENCE EXCLUDING ANY SUBSEQUENT ACTION . IT APPEARS FROM THE DOCUMENTS IN THE FILE THAT FOR THE HIGH AUTHORITY ITSELF THIS LETTER OF APPOINTMENT WAS ONLY OF A PROVISIONAL NATURE AND NOT INTENDED TO GOVERN FINALLY THE LEGAL POSITION OF THE APPLICANT SINCE HER RECLASSIFICATION WAS EXPECTED . FINALLY IT APPEARS FROM THE INQUIRIES WHICH THE SECOND CHAMBER HAS MADE THAT THE APPLICANT HAS CONSTANTLY MADE OBSERVATIONS ABOUT HER POSITION . THE STATEMENT OF THE DIRECTOR OF ADMINISTRATION OF THE HIGH AUTHORITY CONFIRMS IN PARTICULAR THE APPLICANT'S STATEMENT THAT WHEN SIGNING THE SAID LETTER OF APPOINTMENT SHE HAD MAINTAINED HER RESERVATIONS ABOUT HER CLASSIFICATION . P . 341 THE COURT IN CONSEQUENCE DECLARES THE PRESENT APPLICATION ADMISSIBLE .
3 . SUBSTANCE A . THE CONDITIONS UPON WHICH THE APPLICANT ENTERED THE SERVICES OF THE HIGH AUTHORITY THE COURT REJECTS THE APPLICANT'S ARGUMENT, PUT FORWARD FOR THE FIRST TIME IN THE REPLY, THAT SHE WAS DEFINITIVELY ENGAGED BY THE HIGH AUTHORITY WHEN SHE ENTERED INTO SERVICE ON 9 DECEMBER 1952 . THE EVIDENCE ADDUCED BY THE APPLICANT IN SUPPORT OF HER CLAIM IS IN NO WAY CONCLUSIVE . ON THE ONE HAND THE EXAMINATION TAKEN AT THE MINISTRY FOR FOREIGN AFFAIRS IN ROME AND THE TELEGRAM FROM THE SAID MINISTRY INVITING THE APPLICANT TO GO TO LUXEMBOURG FOR THE PURPOSE OF HER EMPLOYMENT BY THE HIGH AUTHORITY COULD NOT, WITHOUT INSTRUCTIONS TO THIS EFFECT, GIVE RISE TO AN OBLIGATION ON THE PART OF THE LATTER TOWARDS THE APPLICANT . THE APPLICANT'S SIGNATURE TO AN UNDERTAKING TO PRESERVE OFFICIAL SECRECY WITH REGARD TO ANYTHING WHICH MIGHT COME TO HER KNOWLEDGE DURING HER EMPLOYMENT AND THE NOTE FROM THE HEAD OF THE TRANSLATION DEPARTMENT SENT TO THE ADMINISTRATION TO INFORM IT OF THE APPLICANT'S ENTRY INTO SERVICE DO NOT CONSTITUTE PROOF OF A DEFINITIVE APPOINTMENT . FURTHER, BOTH IN THE APPLICATION MADE ON 10 FEBRUARY 1955 TO THE ADMINISTRATIVE COMMITTEE OF THE HIGH AUTHORITY AND IN THE APPLICATION TO THE COURT THE APPLICANT REFERS ON SEVERAL OCCASIONS TO A PROBATIONARY PERIOD AND THUS RECOGNIZES THAT HER EMPLOYMENT WAS NOT OF A DEFINITIVE NATURE . THE COURT ALSO REJECTS THE DEFENDANT'S ARGUMENT THAT THE APPLICANT WAS SIMPLY ADMITTED FOR A TRIAL PERIOD : THIS, AS DISTINCT FROM AN APPOINTMENT ON PROBATION, WOULD GIVE RISE TO NO LEGAL RELATIONSHIP BETWEEN THE PERSON ADMITTED AND THE ADMINISTRATION SINCE THE TRIAL PERIOD WOULD NOT PROVIDE CONFIRMATION BUT SIMPLY BE A SUBSTITUTE FOR ANY OTHER MEANS OF RECRUITMENT SUCH AS AN EXAMINATION, A COMPETITION BASED ON QUALIFICATIONS AND SO FORTH . ENTRY INTO SERVICE UNDER SUCH CONDITIONS WOULD APPEAR AT THE VERY LEAST TO BE EXCEPTIONAL AND HAS NOT BEEN PROVIDED FOR BY ANY OF THE REGULATIONS IN FORCE UNTIL NOW IN THE COMMUNITY . IT MOREOVER APPEARS FROM THE EVIDENCE OF THE SECRETARY OF THE HIGH AUTHORITY THAT INSTRUCTIONS WERE GIVEN TO EXERCISE CAUTION IN ENGAGING STAFF : THE PROBATIONARY PERIOD WAS MEANT AS A SAFEGUARD . THE FACT THAT THE PROBATIONARY PERIOD WAS CUSTOMARY WITH THE HIGH AUTHORITY IS CONFIRMED BY THE STATEMENTS OF THE DIRECTOR AND AN OFFICIAL IN THE ADMINISTRATIVE DEPARTMENT OF THE HIGH AUTHORITY UNCONTRADICTED BY OTHER WITNESSES . P . 342 THE DEFENDANT HAS PUT FORWARD NO ARGUMENT TO SUBSTANTIATE ITS CLAIM OF ADMISSION FOR A TRIAL PERIOD . IT ALLEGES THAT THE ABSENCE OF ANY DOCUMENT IS CONFIRMATION OF ITS STATEMENT . HOWEVER, IT APPEARS FROM THE DOCUMENTS IN THE FILE AND FROM THE INQUIRY THAT DURING THE PERIOD WHEN THE HIGH AUTHORITY WAS BEING SET UP THE CONVENING OF THOSE ENGAGED TO ORGANIZE THE WORK AND THEIR TERMS OF REFERENCE WERE GENERALLY FIXED ORALLY . THE FACT THAT THE APPLICANT ENTERED INTO SERVICE PURELY ON THE BASIS OF AN ORAL AGREEMENT THEREFORE DOES NOT PROVE THAT SHE WAS ACCEPTED ONLY ON A TRIAL BASIS . FINALLY IN THE " MEMORANDUM TO THE DIRECTOR OF THE STAFF AND ADMINISTRATION DIVISION " OF 31 MAY 1955 WHICH CONSTITUTES THE DECISION OF THE ADMINISTRATIVE COMMITTEE TAKEN AS A RESULT OF THE APPLICANT'S COMPLAINT THROUGH OFFICIAL CHANNELS, THE COMMITTEE ITSELF DOES NOT MENTION THAT THE APPLICANT WAS ADMITTED ON A TRIAL BASIS BUT FINDS THAT HER ENTRY INTO THE SERVICE WAS AS A RESULT OF A PROPOSAL TO EMPLOY HER SUBJECT TO THE RESULTS OF A PROBATIONARY PERIOD PROVING SATISFACTORY . THERE WAS THUS AN ORAL PROPOSAL BY THE HIGH AUTHORITY TO THE APPLICANT TO APPOINT HER FOR A PROBATIONARY PERIOD AS AN INTERPRETER/TRANSLATOR AND BY HER ACTUAL AND IMMEDIATE ENTRY INTO SERVICE THE APPLICANT ACCEPTED THIS PROPOSAL OF EMPLOYMENT AND THUS AN ORAL CONTRACT OF EMPLOYMENT WAS CONCLUDED SUBJECT TO THE RESULTS OF A PROBATIONARY PERIOD PROVING SATISFACTORY . THE COURT FINDS THAT IT FOLLOWS FROM THE ABOVE-MENTIONED FACTS THAT ON 9 DECEMBER 1952 THE LEGAL POSITION OF THE APPLICANT WAS THAT OF A PROBATIONER . B . THE DECISION OF 8 JANUARY 1953 THE APPLICANT BASES HER ALTERNATIVE CLAIMS ON THE IRREGULARITIES WHICH, SHE ALLEGES, VITIATE THE STATEMENT OF THE REASONS ON WHICH THE DECISION OF 8 JANUARY 1953 WAS BASED, NAMELY : " YOUR ABILITY DOES NOT MEET THE REQUIREMENTS OF THE DEPARTMENT ". THE IRREGULARITIES ALLEGED ARE ON THE ONE HAND IRREGULARITY IN THE CONDITIONS UNDER WHICH THE PROBATIONARY PERIOD TOOK PLACE AND ON THE OTHER HAND THE MISUSE OF POWERS, THE REAL REASON FOR HER DISMISSAL BEING THE REVISER'S DESIRE TO REPLACE HER BY A FRIEND . THE TWO CLAIMS MUST BE CONSIDERED SEPARATELY . ( A ) THE CLAIM RELATING TO THE IRREGULARITY OF THE PROBATIONARY PERIOD THE COURT CONSIDERS THAT IT IS FOR THE COMPETENT ADMINISTRATIVE AUTHORITY TO EVALUATE IN ITS DISCRETION THE CAPACITY OF THE CANDIDATES TO CARRY OUT GIVEN DUTIES . HOWEVER, IT IS FOR THE COURT WHERE APPROPRIATE TO REVIEW THE WAYS AND MEANS WHICH MAY HAVE LED TO THIS EVALUATION . IN THE PRESENT CASE THE COURT MUST CONSIDER WHETHER THE APPLICANT HAS BEEN GIVEN THE OPPORTUNITY TO SHOW HER CAPACITY DURING THE PROBATIONARY PERIOD . THE COURT FINDS THAT DURING THE MONTH SPENT BY THE APPLICANT IN THE TRANSLATION DEPARTMENT SHE WAS ENTRUSTED WITH ONLY THREE TRANSLATIONS, THE FIRST TWO OF WHICH CONTAINED ONLY TWO PAGES EACH AND THE THIRD OF WHICH, OF SEVEN PAGES, WAS DONE IN COLLABORATION WITH THE ITALIAN REVISER . FURTHER THE DOCUMENTS TO BE TRANSLATED IN THE OPINION OF BOTH PARTIES PRESENTED NO SERIOUS DIFFICULTY . P . 343 THE DEFENDANT JUSTIFIES THE SMALL NUMBER OF TASKS REQUIRED OF THE APPLICANT DURING HER PROBATIONARY PERIOD EITHER BY THE LACK OF WORK IN THE DEPARTMENT OR THE OBVIOUS INCAPACITY OF THE APPLICANT FOR HER DUTIES, WHICH THE DEFENDANT SEEKS TO PROVE BY PRODUCING ONE OF THE THREE TRANSLATIONS MADE BY THE APPLICANT DURING HER PROBATIONARY PERIOD . THE IMPERFECTION OF THESE THREE TRANSLATIONS IS ALLEGED TO HAVE CONVINCED THE DEFENDANT THAT THERE WAS NO NEED TO SUBJECT THE APPLICANT TO ANY OTHER TESTS . AS FOR THE FIRST ARGUMENT IT APPEARS FROM THE DOCUMENTS IN THE FILE THAT DURING THE PERIOD 9 DECEMBER 1952 TO 8 JANUARY 1953 THE AVERAGE NUMBER OF PAGES TRANSLATED WAS SOME 95 PER TRANSLATOR FOR THE ITALIAN SECTION . THIS ARGUMENT CANNOT THEREFORE BE ACCEPTED . AS TO THE TRANSLATION OF 18 DECEMBER 1952 PRODUCED BY THE DEFENDANT, THE APPLICANT BY NOTICE DATED 3 JANUARY 1956, REGISTERED ON 12 JANUARY 1956, CONTESTED ITS AUTHENTICITY AND CLAIMED NOT TO BE THE AUTHOR . HOWEVER, BY NOTICE DATED 22 MAY 1956, REGISTERED ON 24 MAY 1956, THE APPLICANT NOTIFIED THE COURT THAT SHE ACCEPTED THE SAID DOCUMENT AS " LEGALLY AUTHENTIC " ALTHOUGH IT DID NOT REFLECT THE TRUE POSITION . THE COURT MUST RULE ON THE AUTHENTICITY OF THE SAID DOCUMENT . THE DOCUMENTS PRODUCED BY THE DEFENDANT SHOW THAT THE DOCUMENT IN QUESTION IS IN FACT THE TRANSLATION MADE INTO ITALIAN BY THE APPLICANT FROM A FRENCH ORIGINAL . THE EVIDENCE OF WITNESSES GIVEN AT THE INQUIRY CONDUCTED BY THE SECOND CHAMBER CORROBORATES THE FINDINGS RESULTING FROM THE DOCUMENTS PRODUCED . THE EXPERT'S OPINION ORDERED BY THE SECOND CHAMBER WITH REGARD TO THIS DOCUMENT HAS NOT CONFIRMED THE DEFENDANT'S ALLEGATION THAT THIS TRANSLATION CONSTITUTED BY ITS INFERIOR QUALITY PATENT EVIDENCE OF THE APPLICANT'S INABILITY . HAVING REGARD TO THE OPINION OF THE EXPERT AND TAKING ACCOUNT OF THE FACT THAT THE TIME-LIMIT GIVEN FOR THE TRANSLATION WAS VERY SHORT, THE COURT CONSIDERS THAT AN UNFAVOURABLE EVALUATION COULD NOT REASONABLY HAVE BEEN MADE AS A RESULT OF THIS SINGLE TEST WHICH HAS BEEN PRODUCED IN VIEW OF THE FACT THAT THE QUALITY OF THE TRANSLATION IS NOT SUCH AS TO REVEAL BY ITSELF MARKED INABILITY ON THE PART OF THE APPLICANT FOR THE WORK OF TRANSLATOR WITH THE HIGH AUTHORITY . THE TWO OTHER TRANSLATIONS MADE BY THE APPLICANT HAVE NOT BEEN PRODUCED SO THAT IT HAS NOT BEEN SHOWN THAT THEY REVEAL INABILITY ON THE PART OF THE APPLICANT . FURTHER THE APPLICANT, HAVING ENTERED A DEPARTMENT WHICH WAS STRANGE TO HER AND WHICH REQUIRED A CERTAIN ASSIMILATION TO ADAPT HERSELF TO IT, COULD LEGITIMATELY EXPECT A GREATER AMOUNT OF WORK WHICH WOULD HAVE ALLOWED HER TO SHOW HER CAPACITY . FOR ALL THESE REASONS THE COURT CONSIDERS THAT THE EXCEPTIONALLY LIMITED NUMBER OF TRANSLATIONS REQUIRED OF THE APPLICANT DURING HER PROBATIONARY PERIOD CONSTITUTES A SERIOUS PRESUMPTION IN SUPPORT OF THE CLAIM THAT THE PROBATIONARY PERIOD OF THE APPLICANT WAS NOT REGULARLY CONDUCTED . IN THE CIRCUMSTANCES IT WAS FOR THE DEFENDANT TO REBUT THIS PRESUMPTION . SUFFICIENT EVIDENCE IS THE FORM OF TRANSLATIONS MADE UNDER APPROPRIATE CONDITIONS BY THE APPLICANT SHOWING HER PATENT INCAPACITY TO DO HER WORK WITH THE HIGH AUTHORITY HAS NOT BEEN ADDUCED AND IN CONSEQUENCE THE PROBATIONARY PERIOD MUST BE REGARDED AS NOT HAVING BEEN PROPERLY CONDUCTED . P . 344 ( B ) MISUSE OF POWERS THE APPLICANT HAS ALLEGED THAT THE DECISION OF 8 JANUARY 1953 WAS VITIATED FOR MISUSE OF POWERS SINCE THE REAL GROUND FOR HER DISMISSAL WAS THE REVISER'S DESIRE TO REPLACE HER BY A FRIEND . WITHOUT DWELLING ON THE FACT THAT THERE IS A CONNEXION BETWEEN THE DEPARTURE OF THE APPLICANT AND THE ARRIVAL IN THE TRANSLATION DEPARTMENT OF THE REVISER'S FRIEND, THAT THE LATTER DID REPLACE THE APPLICANT AND THAT THE DECISIONS TO DISMISS AND APPOINT WERE PROPOSED BY THE SAME PERSON, THE COURT FINDS THAT MISUSE OF POWERS HAS NOT BEEN SUFFICIENTLY PROVED . THIS CLAIM CAN THEREFORE NOT BE UPHELD . THE COURT CONCLUDES THAT THE APPLICANT'S PROBATIONARY PERIOD WAS NOT CONDUCTED UNDER PROPER CONDITIONS AND THAT THE DECISION OF THE PERSONNEL DEPARTMENT OF 8 JANUARY 1953, INFORMING THE APPLICANT THAT HER ABILITY DID NOT ACCORD WITH THE REQUIREMENTS OF THE DEPARTMENT, AND THE DECISION OF THE ADMINISTRATIVE COMMITTEE WHICH CONFIRMED IT MUST BE ANNULLED . IN CONSEQUENCE, SINCE THE ORAL CONTRACT CONCLUDED BETWEEN THE APPLICANT AND THE HIGH AUTHORITY ON 9 DECEMBER 1952 WAS NOT DULY PERFORMED, IT MUST NOW BE PERFORMED : THE APPLICANT MUST SERVE THE PROBATIONARY PERIOD PROVIDED FOR IN THE SAID CONTRACT UNDER PROPER CONDITIONS . THE DURATION OF THIS PROBATIONARY PERIOD WAS ACCORDING TO BOTH PARTIES A MONTH IN ACCORDANCE WITH THE RULE USUALLY APPLIED BY THE HIGH AUTHORITY AT THAT TIME . IT APPEARS FROM THE STATEMENT OF THE SECRETARY OF THE HIGH AUTHORITY THAT THAT PERIOD WAS CONSIDERED TOO SHORT AND THAT AS A RESULT APPLICANTS WERE REQUIRED TO SERVE A PROBATIONARY PERIOD OF THREE MONTHS AS FROM THE BEGINNING OF 1953 . THE PROVISIONAL STAFF REGULATIONS OF 16 MARCH 1954 PROVIDED FOR A SIMILAR PROBATIONARY PERIOD AND IN JULY 1956 THE STAFF REGULATIONS OF THE COMMUNITY EXTENDED THE PERIOD TO SIX MONTHS . IN THESE CIRCUMSTANCES THE COURT CONSIDERS THAT THE APPLICANT SHOULD SERVE HER NEW PERIOD OF PROBATION FOR A PERIOD IN ACCORDANCE WITH THAT PROVIDED FOR IN ARTICLE 36 OF THE STAFF REGULATIONS .
4 . COMPENSATION CLAIMED BY THE APPLICANT THE APPLICANT CLAIMS COMPENSATION EQUAL TO THE DIFFERENCE BETWEEN THE SALARY ACTUALLY RECEIVED BY HER AND THAT OF STAFF IN THE SECOND CATEGORY . THE COURT FINDS THAT IN VIEW OF THE UNCERTAINTY REGARDING THE RESULT WHICH THE FIRST PROBATIONARY PERIOD WOULD HAVE LED TO HAD IT BEEN DULY CONDUCTED AND IN CONSEQUENCE REGARDING THE APPLICANT'S POSSIBLE APPOINTMENT IN THE SECOND CATEGORY, THERE CAN BE NO QUESTION IN THE PRESENT CASE OF ANY CLEAR DAMAGES SUFFERED BY HER . FURTHER THE APPLICANT HAS CLAIMED FOR THE FIRST TIME IN HER REPLY NON-MATERIAL DAMAGE BY REASON OF THE IMPROPER NATURE OF THE DECISION OF 8 JANUARY 1953; THE COURT DOES NOT THINK IT RIGHT TO GRANT THE APPLICANT COMPENSATION UNDER THIS HEAD . IN THIS RESPECT ALSO ACCOUNT MUST BE TAKEN OF THE UNCERTAINTY OF THE RESULTS OF THE PROBATIONARY PERIOD AND THE SUCCESSIVE OFFERS OF NEW OPPORTUNITIES OF PROMOTION MADE BY THE HIGH AUTHORITY TO THE APPLICANT AFTER SHE HAD LEFT THE TRANSLATION DEPARTMENT . IT FOLLOWS THAT THE APPLICANT IS NOT ENTITLED TO DAMAGES .