C-25/60

affecting the interests of the service Hence the Court must rule that it and must exclude anything of an has not been sufficiently established arbitrary nature. that the impugned decision is founded This requirement exists from the on a ground valid in law. date of the creation of a legal relationship between the Adminstra­ 2. If the conditions for payment of the tion and its servants. installation allowance have been In consequence, it is not necessary in fulfilled, that allowance cannot be the present case to settle the question refused on the basis of an irregular whether a decision of dismissal, decision of dismissal.

In Case 25/60

LEDA DE BRUYN, the wife of Giorgio Gerioni, represented by Fernand Probst, advocate of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 26 avenue de la Liberte, applicant, v

EUROPEAN PARLIAMENTARY ASSEMBLY, represented by Jacques Fayaud, Head of the Personnel Department of the European Parliamentary Assembly, acting as Agent, assisted by Jean Coutard, advocate at the Conseil d'Etat and the Cour de Cassation in Paris, with an address for service in Luxembourg at the offices of the Assembly, 19a rue Beaumont, defendant, 1— Language of the Case: French. 2 — CMLR.

JUDGMENT OF 1.3. 1962 — CASE 25/60

Application for: — annulment of a decision of dismissal dated 3 July 1959; — compensation for dismissal; — payment of the installation allowance; — damages;

The applicant claims that the Court 'Note that the European Parliamentary should: Assembly has chosen its address for service under Article 32 (2) of the 'Rule that the present proceedings are Rules of Procedure of the Court as its admissible; offices in Luxembourg, 19a rue rule that it has jurisdiction to hear the Beaumont; matter; note that the European Parliamentary order the Parliamentary Assembly to Assembly acknowledges the jurisdiction produce the two documents herein of the Court as to the admissibility of the referred to declare the application well- founded and, consequently, annul the application brought by Mrs Leda de Bruyn; decision of dismissal of 3 July 1959 and order the Assembly to pay to the dismiss the application as unfounded in substance with all the consequences in applicant: law of such dismissal as the payment of 1. The sum of 60 000 FB by way of non- fees, costs and any other expenses.' material damages; 2. A sum in lieu of notice equal to three II — Summary of the facts months' salary; 3. The installation allowance calculated The facts of the case may be summarized according to the rules in force; as follows: and The applicant was engaged by the order the defendant to pay all costs and European Parliamentary Assembly as a expenses.' secretary/shorthand typist in the

DE BRUYN v PARLIAMENT

JUDGMENT OF 1.3. 1962 — CASE 25/60

The applicant goes on to assert that the engagement is a letter of employment European Parliamentary Assembly is in which intentionally creates only a very breach of contract on the ground of the tenuous relationship between institution absence of reasoning in the disputed and servant. decision and that, as termination of the The contract is not one of limited contract has become final, this liability duration referred to in Article 246 (3) must be discharged by way of damages, of the EEC Treaty and Article 214 (3) in accordance with the case law of the of the EAEC Treaty, but is an Court. engagement determinable at any time As to the amount of compensation on a month's notice. As the Court claimed, the applicant states that while, pointed out in its judgments of 15 July after much difficulty she was successful and 16 December 1960, it was in fact in finding a new job, it was still necessary, impossible in such a case to argue the

DE BRUYN v PARLIAMENT

reasons. When the trial period ends, the for servants recruited before the adoption employing institution must decide of the Staff Regulations and that whether, in the light of the employee's consequently, general principles of law skills and temperament, he can be derived from the national laws which definitively appointed. An evaluation of reflect them are to be applied. She this kind can only be general in nature states that, since the period of notice is and cannot be subject to any sort of intended to enable the dismissed servant outside control, since it is for the institu to find fresh employment suited to his tion with which probation was served aptitudes and more or less equivalent to assess, in its own discretion, the to the employment which has been results of the probation in question. terminated, it follows that a period of According to the decision of the Court notice of three months would appear in Case 10/55, the only requirement reasonable and that, consequently, the that can be imposed in the matter is European Parliamentary Assembly that the servant be given the opportunity should be ordered to pay the applicant during the course of the trial period of compensation equivalent to three showing his capabilities. months' salary in lieu of notice. In the applicant's case, the defendant However, the defendant maintains that contends that it was a question of a the terms of the letter of employment servant taken on trial. Probation, and must be adhered to on this point, and its extension owing to the employee's these expressly stipulate a period of absence on sick leave, was intended notice of one month.

The applicant cannot claim to have suffered responsible authorities did not wish any loss either quantified or quantifiable, servants recruited before the adoption so that her claim would seem to be an of the Staff Regulations provided for in endeavour to obtain an order for the the Rome Treaties to feel that they

(c) Finally, as to the third claim, the probationary period was not satisfactory, and this assessment cannot be called in applicant draws attention to the fact that the disputed decision to dismiss her is question, even though the memoranda of 29 June and 3 July 1959 were not unjustified in view of her probation entirely unfavourable towards the report, which, as appears from the departmental memoranda of 29 June applicant as regards her strictly pro­ fessional abilities. Moreover, the and 3 July 1959, the competent defendant emphasizes that payment of authorities considered to be satisfactory. the installation allowance can only be She also asserts that in this case she had made to servants definitively employed met, within the proper time, the three by the Assembly, whereas no contract conditions required for payment of the of employment was entered into with installation allowance, namely: the applicant at the end of her probation. — a favourable probation report; — a favourable medical examination; IV — Procedure and — proof of installation; The procedure followed the normal and that consequently, she has acquired course. On 7 December 1960, the the right to payment of this allowance. applicant lodged an application for Moreover, the applicant adds in her legal aid at the Court Registry, which reply that it should be borne in mind application was granted by order of the Second Chamber of the Court on that any decision concerning such entitlement should be judged in the 16 February 1961. The case was assigned same light as that relating to the failure to the First Chamber by decision of the to assign reasons for the dismissal, Court dated 11 October 1961, and because the whole crux of the problem is Judge Rossi remained as Rapporteur. whether the defendant can, as it claims, On 10 November 1961, the First in its own discretion and arbitrarily, Chamber decided, on the basis of the and without having to assign reasons, Judge-Rapporteur's report and the make an assessment of a probationary opinion of the Advocate-General, to put period with which the defendant could certain questions to the parties. The surely have dispensed if such probation replies to these questions were lodged were not itself intended to supply the by the applicant on 22 November 1961, reasons either for dismissal or for and by the defendant on 1 December retention in employment. 1961.

By virtue of those provisions, and bearing in mind the principles laid down by the Court in Joined Cases 43, 45 and 48/59 and in Case 44/59, this jurisdiction is based on Articles 179 of the EEC Treaty and 152 of the EAEC Treaty, each of which provides that 'The Court of Justice shall have jurisdic­ tion in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment.'

Accordingly, the Court has jurisdiction to hear the present dispute.

2. The applicant claims that the Court should both annul the decision of dismissal and order the Assembly to pay to the applicant: (a) a sum of 60 000 Belgian francs by way of non-material damages; (b) the installation allowance; and (c) a sum equal to three months salary in lieu of notice.

As far as the conclusions regarding annulment are concerned, the applicant stated in her application: 'The European Parliamentary Assembly is in breach of contract on the ground of the absence of reasoning in the disputed decision and, as termination of the contract has become final, the Assembly's liability must be discharged by way of damages.'

It follows from this statement that the conclusions in fact contemplate only compensation for the non-material damage suffered by the applicant.

Consequently, the question whether or not the present application is admissible from the point of view of limitation periods should be examined solely from the angle of the admissibility of an application for damages for breach of contract. No provision of the EEC Treaty or of the EAEC Treaty provides for a period of limitation for the making of such applications. In particular the limitation periods provided for in Article 43 of the Protocol on the Statute of the Court of Justice annexed to the EEC Treaty and. in Article 44 of the Protocol on the Statute of the Court of Justice annexed to the EAEC Treaty do not apply in the present case for the simple reason that they concern non-contractual liability.

Nevertheless, the defendant alleges that the completion of a period of probation was, in the present case, in conformity with the practice in force at the European Parliamentary Assembly. The applicant does not contradict the defendant on this point; nor does she deny having received, at the same time as her letter of appointment, document APE 926 relating to the refund of removal expenses and the -installation allowance and providing that these benefits could be accorded to servants 'of at least two months' standing under a letter of employment of the Brussels type, and whose probation report was favourable'.

She does not contest either that she received communication 59/13 dated 12 March 1959, pointing out the necessity of a favourable probation report in order to be able to claim the installation allowance.

In these circumstances, there are grounds for concluding that the existence of a probationary period in the contractual relationship between the applicant and the European Parliamentary Assembly appears well established.

The defendant, in reply to Question No 2 put by the Court before the opening of the oral procedure, asserts that the length of such a probationary period was 'normally' two months, without going so far as to state the length of the probationary period which the applicant was in fact obliged to serve.

DE BRUYN v PARLIAMENT

Nevertheless, since the applicant was engaged by letter dated 11 March 1959 and was dismissed by letter dated 3 July 1959, it follows that the defendant brought the probationary period to an end three months after the date of the letter of employment, taking into account two periods of sick leave of a total length of twenty-two days.

As was recognized by the Court in Joined Cases 43, 45 and 48/59 and in Case 44/59, the acts of an authority in the contractual as well as in the administrative field are always subject to the dictates of public interest; consequently every decision of dismissal must be based on reasons related to the interests of the service and must exclude anything of an arbitrary nature.

This requirement exists from the moment of the creation of a legal relation­ ship between the Administration and its servants.

JUDGMENT OF 1. 3. 1962 — CASE 25/60

In consequence, it is not necessary in the present case to settle the question whether a decision of dismissal coming at the end of a period of probation of a servant recruited under the Brussels Rules should or should not state the

reasons underlying it, because there are grounds for concluding that such a decision must, in any case, be founded on reasons valid in law.

The first months corresponding to a period of probation are intended to allow the party concerned to show his proficiency; at the end of this period the Administration must assess the ability and temperament of the probationer in his duties in order to determine whether he shows the necessary capabilities.

All the same, it is permissible to observe on this point that every probation report is normally made out by the head of the department to whom the

BE BRUYN v PARLIAMENT

party concerned is answerable, in this case the Director of General Services, to whose department the applicant had been assigned. The report of the Director of General Services is favourable to the applicant.

It is undeniable that the appointing authority is always free to withhold approval of the probation report made out by the responsible authorities; however, as the Court has just established, it must base its dismissal decision on grounds valid in law; this obligation must be even more strictly inter­ preted when the decision of dismissal is in open contradiction with the probation assessment by the responsible authorities.

In the present case this contradiction, taken with the terms of the memorandum by Mr Neujean according to which 'an unfavourable assess­ ment cannot be given' — terms which seem to indicate that a similar assessment was perhaps expected at a higher level — constitutes the beginnings of proof that this dismissal was based on grounds not valid in law. The defendant has not, as was incumbent on it, provided proof to the contrary; it has not, furthermore, explained the above contradiction either in its statements of defence or at the hearing.

Hence, the Court must conclude that it has not been sufficiently established in law that the impugned decision is founded on a ground valid in law. This omission has caused the applicant non-material damage for which the European Parliamentary Assembly is liable in contract.

JUDGMENT OF 1. 3. 1962 — CASE 25/60

there should be not only a favourable probation report but also no decision of dismissal at the end of the probationary period. Indeed, the installation of a servant at the place where the institution is located, and consequently the allowance due, are only justified when the probation is followed by the continuation of the servant's employment.

But in this case the decision of dismissal is irregular by virtue of the fact that it is not based on reasons valid in law; such a decision could not, therefore, be taken into consideration in the refusal to pay the installation allowance. It is also undeniable that a favourable medical examination took place.

As far as the third condition is concerned, the defendant has formally declared in the oral procedure that the applicant had deposited with the European Parliamentary Assembly a one year tenancy agreement entered into on 8 May 1959 in Luxembourg. The fact that the date of this agreement is within the probationary period provides simple proof that the applicant ran a certain risk; it follows, therefore, from the existence of this agreement, that at the end of her probation the applicant had proved her installation.

Since the three abovementioned conditions have been fulfilled, the applicant has a right to payment of the installation allowance.

Payment of compensation for dismissal

The applicant's conclusions on this point are, therefore, not well founded.

Costs

The applicant has made out her case as far as her conclusions on the principle points in dispute are concerned. Under Article 69 (2) of the Rules of Procedure, the defendant should be ordered to pay the costs.

On those grounds.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice annexed to the Treaty establishing the European Economic Community and the Protocol on the Statute of the Court of Justice annexed to the Treaty establishing the European Atomic Energy Community; Having regard to Articles 179, 212, 215, first paragraph, and 246 (3) of the Treaty establishing the European Economic Community and Articles 152, 186, 188, first paragraph, and 214 (3) of the Treaty establishing the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT (First Chamber)

O. Riese L. Delvaux R. Rossi

Delivered in open court in Luxembourg on 1 March 1962.

A. Van Houtte O. Riese Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL LAGRANGE DELIVERED ON 14 DECEMBER 1961 <apnote>1</apnote>

Mr President, to the subsequent conclusion of a Members of the Court, contract'. That, as you are aware, is the legal basis Mrs Leda De Bruyn, the wife of Mr of what, by common consent, is referred Giorgio Cerioni, was engaged by the to as the 'Brussels Rules'. You are also European Parliamentary Assembly aware that, in spite of the mandatory on a temporary basis in the capacity of provisions of Article 246 (3) of the typist (Grade 3A) for the period from EEC Treaty and of Article 214 (3) of 11 February to 10 March 1959, under the Euratom Treaty, no 'contract of a temporary contract' dated 11 limited duration' has been concluded February 1959. The governing terms with newly recruited staff. were those contained in a document One cannot but be struck at the outset entitled 'Conditions of Employment of by the difference between the clarity Auxiliary Staff which was duly applied of the legal position ensuing from the by the administrative body of the auxiliary staff contract and the vagueness Assembly and which was expressly in which, apparently intentionally, the incorporated into the contract. so-called 'Brussels Rules' are couched.

On 11 March 1959, that is on the day One should not be surprised, therefore, following the expiry date of this that the application of these 'Rules', temporary contract, the applicant put the substance of which moreover