C-10/55

3. Employees of the Community — Appointment — Probationary period — Assessment by the Administration — Review by the Court It is for the administrative authority to evaluate in its discretion the capacity of can­ didates to carry out given duties and for the Court where appropriate to review the ways and means which may have led to this evaluation. An unfavourable assessment of the capacity of a candidate to be employed as a translator cannot reasonably be made as a result of a single translation.

4. Procedure — Proof — Burden of proof Where there is a strong presumption in support of an argument it is for the other party to rebut it.

5. Damage — Uncertain damage — No compensation Uncertainty with regard to the outcome which a probationary period would have had if it had duly taken place rules out certain damage. Non-material damage by reason of the improper nature of the decision to refuse a definitive appointment may be com­ pensated by successive offers of a new post involving possibilities of promotion.

In Case 10/55

MIRANDA MIROSSEVICH, represented by Professor Federico A. Perini-Bembo, of the Trieste Bar, Advocate of the Corte di Cassazione, and other superior courts, with an address for service in Luxembourg at 83, Rue de la Semois,

applicant, 1 — Language of the Case: Italian. 2 — Article 2 of the Rules of Procedure for applications to the Court under Article 58 of the Staff Regulations of the Community which entered into force on 11 March 1957 provides a time-limit of two months for making an application to the Court (Journal Officiel. 6th year, No 8. p. 110/57).

composed of: M. Pilotti, President, J. Rueff and O. Riese (Presidents of Cham­ bers), P. J. S. Serrarens, L. Delvaux, Ch. L. Hammes and A. van Kleffens, Judges,

Advocate General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

1. Procedure In any event: recognition of her entitle­ ment to compensation reflecting the differ­ On 19 July 1955 the applicant lodged an ence between the salary paid and that of application with the Court against the staff of the second category; High Authority asking: An order that the defendant must pay the costs'. 'In the first place: the revocation of the notification on 8 January 1953 ofthe nega­ On 29 July 1955 the applicant appointed tive result of the probationary period be­ as Advocate, Professor Federico A. Perini- cause there had been no probationary pe­ Bembo, duly enrolled at the Trieste Bar, riod and in consequence the annulment of and asked the Court to grant her legal aid. every administrative measure up to the de­ By order of the First Chamber of 21 Octo­ cision of the Administrative Committee of ber 1955 aid was granted to her in respect 31 May 1955; in consequence the recogni­ of part of the costs. tion of her services and work done in rela­ On 20 August 1955 the High Authority, tion to translating and her definitive en­ represented by its Agent, Nicola Catalano, gagement as a translator in the translation appointed on 28 July 1955, lodged its de­ department; fence. Alternatively ... a proper definition of her position giving her the grade which she 'Subject to the right to amend, add and re­ claims (second category); quire, where appropriate, proof and to the

'Declare inadmissible and in any event un­ Grant in part the substance of the claim, founded the application made by Miss Mi­ that is to say: randa Mirossevich on 19 July 1955 and served on 21 July 1955; and order the ap­ Declare that Miss Mirossevich was en­ plicant to bear the costs'. gaged on a trial basis on 9 December 1952 as an interpreter/translator (former catego­ On 30 September 1955 the case was as­ ry II) at an annual salary of Bfrs 300 000 signed to the First Chamber for the pur­ plus local allowance; pose of any inquiry and Judge P. J. S. Ser­ Declare that the trial took place only par­ rarens was appointed as Judge-Rappor­ tially between December 1952 and Jan­ teur. uary 1953 and was completed favourably On 3 October 1955, that is two days after after subsequent linguistic services the expiry of the time-limit laid down by rendered by Miss Mirossevich on a num­ the order of the President of 31 August ber of separate occasions after 8 December 1953; 1955 for lodging a reply, the applicant lodged an interlocutory application to the Recognize the right of Miss Mirossevich to reinstatement in her career bracket as from Court under Articles 69 and 70 of the Rules of Procedure of the Court claiming a 9 December 1952 and back payment as declaration that the defendant could not from 16 January 1953; reserve in its defence the right to amend its contentions during the course of the pro­ In any event: ceedings. Declare that the pseudo-contract of 12 Oc­ By order dated 28 October 1955 the Court tober 1953 (referring to the period from 9 ruled against that application and appoint­ December 1952 to 8 December 1953) is vi­ ed 15 November 1955 as the date for lodg­ tiated for lack of consent by reason of mis­ ing the reply. take and fraud and is in consequence null On 15 November 1955 the applicant and void; lodged her reply in which she asked that the Court should: Recognize that the applicant is entitled to the back payment of the difference be­ tween what has been paid to her and the 'Recognize itself as having jurisdiction; sum to which she was originally recognized Recognize the application lodged on 19 as being entitled on the basis of the salary July 1955 by Miss Mirossevich as admissi­ of 1952; ble; Grant Miss Mirossevich damages for non- material injury; and in the first place Recognize that the applicant is entitled to Grant the substance, that is to say, a definitive contract (according to the rules Declare that Miss Mirossevich was per­ in force) as interpreter/translator or at least manently and definitively engaged on 9 in accordance with her ability, with the December 1952 as an interpreter/transla­ category in which she was originally en­ tor in the language department (former gaged and with her ability and capacity category II) at the annual salary of Bfrs shown over three years and with the ser­ 300000 and that consequently the notifi­ vices she has rendered; cation of 8 January 1953 is a nullity be­ Order the High Authority to bear the costs cause it was vitiated as not in accord with of the present application a statement of the facts, as patently unjust and in any which will be produced in due course'. event as a misuse of powers; Declare Miss Mirossevich entitled to rein­ By order dated 16 November 1955 the

President of the Court fixed 16 December By order dated 24 April 1956 the Second 1955 as the date by which the rejoinder Chamber named witnesses required to should be lodged. testify before the Chamber and fixed 15 This was lodged at the Registry on 12 De May 1956 as the date of the inquiry. cember 1955. The hearing of witnesses by the Chamber In the rejoinder the defendant contended took place on 15 and 16 May 1956.

With cation on the ground that the defendant out objecting to that proposal the defend had infringed Article 69 of the Rules of ant nevertheless expressed the view that Procedure of the Court. This application the assessment of the technical and voca was dismissed by order of the Court of 17 tional skill of its staff was a matter entirely March 1956. for its own discretion and was as a result On 12 January 1956 the applicant applied not subject to review by the Court. under Article 33 (7) of the Rules of Proce On 24 May 1956 the applicant submitted dure of the Court to contest the authenti observations in which she withdrew her city of two documents supplied by the de challenge to the authenticity ofthe transla fendant and asked the Court to take the tion attributed to her (document No 10 in measures provided for in Article 33 (7) of the annex to the rejoinder) and thus with the Rules of Procedure. drew her application of 12 January 1956. By order dated 17 March 1956 the Court At the same time the applicant asked the decided not to grant the application for Chamber to institute a supplementary in proof of the authenticity of the first docu quiry involving the hearing of further wit ment in view of the fact that the defendant nesses. This application was dismissed by waived reliance thereon and ordered that the Chamber by order dated 4 June 1956. the First Chamber should hold an inquiry By order of the same date the Second into the authenticity of the second. Chamber ordered that an expert be ap By order dated 19 March 1956 the First pointed to assess the quality of the transla Chamber ordered that an inquiry be tion contained in document No 10 in the opened and witnesses be heard on the facts annex to the rejoinder. and issues specified in the order and that The two above-mentioned orders were the authenticity of the aforesaid document read in open court on 12 June 1956.

amended. Case 10/55 was thereupon as on 25 June 1956. At the end of his report signed to the Second Chamber, composed the expert raised the question of the cir of the same judges who until then had dealt cumstances in which the translator was with the case. working (lack of time, existence of a revis-

those of the applicant on 16 August 1956. On 5 January 1953 the head of the lan­ The two parties confirmed their previous guage department informed the Secretariat observations. ofthe High Authority ofthe negative result By order dated 18 July 1956 the President of the applicant's probationary period and of the Court appointed 24 September 1956 the staff administration thereupon in­ as the date for the oral procedure. On the formed the applicant on 8 January 1953 application of the applicant the hearing that it was not possible to offer her a con­ was adjourned to 13 November 1956 by tract as a translator. order of the President of 30 August 1956. On 17 January 1953 the Secretariat of the At the hearing in open court on 13 Novem­ High Authority offered the applicant a ber 1956 the parties made oral observa­ post as typist in the pool with a probation­ tions. ary period of one month. At the hearing in open court on 15 Novem­ On 31 January 1953 the applicant received ber 1956 the Advocate General delivered a letter of appointment as 'typist in the his opinion that: pool'. The decision of 8 January 1953 and the de­ In February 1953 a provisional contract cision of the Administrative Committee was drawn up for the applicant as an 'ex­ confirming it be declared null and void; ecutive clerk'. The oral contract of 9 December 1952 be On 12 October 1953 the applicant signed performed by Miss Mirossevich's serving a a contract of employment in the fourth probationary period of one month in the category for a period of one year with ret­ language department of the High Authori­ roactive effect to 9 December 1952 in the ty as a translator and at the expiry of such information and documentation depart­ probationary period, whatever be the re­ ment.

Committee decided that 'the High Au the High Authority in 1952. The engage thority was not bound by the first proposal ment ofother staffwas expressly made sub of appointment made to Miss Mirossevich ject to a probationary period. The appli since the results of her probationary period cant's training and experience moreover were unsatisfactory'. Following this deci should have made it unnecessary for her to sion the applicant made an application to serve a probationary period. the Court of Justice on 19 July 1955. B. The defendant for its part states that the

sis. Such appointment depends further on 4. Submissions and arguments of the discretionary assessment by the Ad the parties ministration of the results of the trial which the applicant undergoes. I. Appointment of the applicant II. The period spent by the applicant in the A. The applicant alleges that as a result of language department the tests taken at the Ministry for Foreign Affairs in Rome the Minister acting on be A. The applicant claims that she was not half of the Community on implied instruc required to serve 'the prescribed period of tions (implicit in the refund of the travel probation'. The month spent in the lan expenses incurred only at the request of the guage department cannot be regarded as a said Minister) notified the applicant by probationary period because the applicant telegram dated 4 December 1952 of her was given no opportunity to prove herself. posting to the European Coal and Steel During the first fortnight she had only Community as an interpreter/translator. three translations all of which were of little She was introduced to the language depart

The de December 1952 by the Ministry of Foreign fendant observes that in all public admin Affairs in Rome. The applicant was never istrations officials are as a rule subject to a informed that she would have to serve a trial period and that their establishment probationary period. This cannot, more depends upon the result of the said period. over, be implied. The probationary period An official considered unsuitable may be was not laid down for appointments under dismissed without any compensation in

A. The applicant states that although she V. Contract signed by the applicant on 12 October 1953 knew four languages she was replaced by a friend of the reviser who was not even a qualified translator and who had only an A. The applicant alleges that this is a indifferent knowledge of French and no pseudo-contract with retroactive effect for English; shortly afterwards moreover he ten months; this contract was a legal fic­ was transferred to another department. tion and was signed expressly on a provi­ The only reason that the applicant was dis­ sional basis in the expectation that the ap­ missed is that the reviser in the Italian sec­ plicant would be put back into the category tion wished to replace the applicant by this of assistant. She did not really give her con­ sent. The act was vitiated for fraud. On 16 friend; it was this reviser who assessed the applicant's ability. After giving her no May 1955 she was invited to sign a new in­ work at all he proposed that she should be complete contract (a contract for 24 transferred, asserting, without any proof in months, made seven months before its ex­ support, that the result of the purported piry) which she refused. trial period was negative and this without any proper check. B. The defendant considers that the appli­ The applicant cites several witnesses in cant accepted without reservation the con­ support of the facts which she alleges. tract of engagement contained in the letter B. The defendant denies that the applicant for the period of9 December 1952 to 8 De­ was replaced by a new translator and ob­ cember 1953. She thus expressly accepted serves that it was not necessary to dismiss in writing the duties which were offered to the first in order to engage the second. The her after she left the language department. engagement of the latter cannot constitute proof in support of a claim of misuse of VI. The decision of the Administrative powers. Committee The defendant claims further to be in a po­ sition to prove by documents the appli­ A. The applicant maintains that the as­ cant's patent unsuitability to do the work sumptions on which this decision was oftranslator. Finally it considers it not per­ based are false; the unsatisfactory proba­ missible to seek to prove a misuse of pow­ tionary period referred to did not take

The defendant contests the admissibility of the application because it is out of time and because the applicant has tacitly accepted the measures taken in re­ spect 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 ap­ plied 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 fun­ damental 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 aquiescence 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

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 con­ clusive. On the one hand the examination taken at the Ministry for Foreign Af­ fairs 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 ofthe 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 Administra­ tive Committee of the High Authority and in the application to the Court the applicant refers on several occasions to a probationary period and thus recog­ nizes 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 ad­ ministration 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 ex­ ceptional 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 engag­ ing 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

B. The decision of 8 January 1953

The applicant bases her alternative claims on the irregularities which, she al­ leges, vitiate the statement of the reasons on which the decision of 8 January 1953 was based, namely: 'Your ability does not meet the requirements ofthe de­ partment'. The irregularities alleged are on the one hand irregularity in the conditions un­ der 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 eval­ uate 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

MIROSSEVICH V HIGH AUTHORITY

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 orig­ inal. 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 doc­ ument has not confirmed the defendant's allegation that this translation consti­ tuted 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 ex­ pect a greater amount of work which would have allowed her to show her ca­ pacity. For all these reasons the Court considers that the exceptionally limited number of translations required of the applicant during her probationary period consti­ tutes 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 transla-

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 cate­ gory, 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

MIROSSEVICH V HIGH AUTHORITY

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.

C. Costs

Since the defendant has failed on several issues it must, in accordance with Ar­ ticle 60 of the Rules of Procedure of the Court, be ordered to pay the applicant four-fifths of her costs. Further, the defendant must pay to the Court four-fifths ofthe costs incurred by the Court in the form of legal aid granted to the applicant for part of the trial by order of the First Chamber of 21 October 1955.

Orders that the applicant shall complete a probationary period of six months as a translator in the language department of the High Authority;

Orders the High Authority to bear four-fifths of the applicant's costs and all its own costs.

OPINION OF MR LAGRANDE — CASE 10/55

Orders the High Authority to reimburse to the Court four-fifths of the costs incurred by it as legal aid.

Pilotti Rueff Riese

Serrarens Delvaux Hammes van Kleffens

III — Admissibility 347 Expiry of the time-limits 348 Acquiescence 348 IV — Substance 350

Main claims 350

Alternative claims 351

Irregularity of the probationary period 351 Misuse of powers 354

V — Consequences of the solution proposed 356 Law 356

Facts 357