C-52/70

JUDGMENT OF THE COURT (SECOND CHAMBER) 12 MAY 19711

Joseph Nagels v Commission of the European Communities

Case 52/70

Summary

Officials — Recruitment — Probationary period— Tasks which do not constitute the extension of the work listed in the vacancy notice but which relate to the subject-matter referred to in the notice — Validity of the probationary period (Staff Regulations of Officials, Article 34)

The fact that in the actual arrangement of the duties attaching to the post of a probationer, tasks which did not constitute the direct and necessary extension of the work listed in the vacancy notice relating to the post in question were entrusted to him cannot invalidate the probationary period where those tasks relate to the subject-matter referred to in the vacancy notice.

Application for the annulment of a decision to dismiss the applicant made on 11 February 1970,

1 — Language of the Case : French.

JUDGMENT OF 12. 5. 1971 — CASE 52/70

THE COURT (Second Chamber)

composed of: A. Trabucchi (Rapporteur), President of Chamber, P. Pescatore and H. Kutscher, Judges,

Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

I — Facts and procedure — carrying out the inspection of those fields.' The facts which form the basis of this The first report at the end of the pro­ action may be summarized as follows: bationary period of 30 July 1969 found The applicant, who worked as an serious inadequacies in the applicant's inspector at the Office national des abilities to perform satisfactorily the debouchés agricoles et horticoles (Na­ duties for which he had been recruited tional Agricultural and Horticultural and concluded by suggesting that the Marketing Bureau) in the Belgian civil probationary period be extended for a service, was appointed a probationary maximum period of three months and official of the Community on 1 March this was in particular in consideration of 1969 was classified in Grade B1 as a the fact that 'the appointing authority Principal Administrative Assistant at the would probably not be able to take the Directorate-General for Agriculture. decision to dismiss the probationer in This appointment was made pursuant to due time before the end of the proba­ Article 29 (2) of the Staff Regulations tionary period of six months'. after a competition procedure under A second probationary report dated 1 Article 29 (1) had produced no results. November 1969 concluded that the The vacancy notice for the post in ques­ applicant should be dismissed because tion described the duties relating there­ of the inadequacies already found in the to thus: first report. Since the applicant had been absent because of sickness for two 'Performing, within the context of months, the Commission decided to general instructions, particularly diffi­ extend by the same time the additional cult and complex office work concern­ probationary period which had been ing (the Dutch text says "met name" granted. The third report at the end [namely] instead of "concerning"); of the probationary period which was — the testing of species and varieties drawn up on 19 January 1970 confirmed of agricultural and horticultural the previous conclusions. plants; On 16 February 1970, the Commission — the arrangement, for the purposes notified the applicant of its decision to of comparison, of fields of those dismiss him. The applicant's complaint plants; against this decision, addressed to the

Commission on 28 April 1970, was re of the Staff Regulations because it did jected by letter of 27 July. not enable him to prove during the By an application lodged at the Court probationary period that he possessed Registry on 24 August 1970, the appli the necessary abilities for the post to cant lodged an appeal against the deci which he was appointed. In fact, he sion of the Commission. says, as appears from the Dutch text The written procedure followed the of the vacancy notice relating to the normal course. post in question, the practical field-work The Court (Second Chamber), after was closely linked to the office work hearing the report of the Judge- which should only have been ancillary Rapporteur and the views of the thereto and should only have involved Advocate-General, decided to open the reports on inspections and actual experi oral procedure without a preparatory ments and not accounts of discussions inquiry. during group meetings.

question. as is necessary, the decision whereby The defendant maintains that the word his complaint against that dismissal was rejected; ing of the vacancy notice does indeed show that the office work forms the (2) in the alternative, order the Com mission to pay the applicant the sum essential part of the duties relating to of 200 000 francs as damages; the post and that, to the extent to which (3) in both cases, order the Commission certain tasks have technical and practical to bear the costs of the action. aspects, they necessarily culminate in

tacts which he had with the officials in ments of the parties the division concerned even before he submitted his application for the post. The submissions and arguments of the The information supplied by the appli parties may be summarized as follows: cant on his application form both as 1, Complaints that the Staff Regulations regards his former tasks and as regards his knowledge of French entitled the of Officials have been infringed defendant to believe that he possessed (a) The applicant accuses the Com the necessary administrative and literary mission of having infringed Article 34 qualifications for the office work in

question, which is work corresponding inspecting the fields is itself work which to the normal duties of an official in is limited to certain times. The applicant Grade B1 and is included in the was moreover informed before his general phrase 'particularly difficult and recruitment that he would only have to complex office work'. be away on mission for six weeks a The applicant replies that this phrase year at the most. is a stereotyped phrase with regard to The meetings on which the applicant B1 posts and that where writing reports was instructed to write a report con is foreseen as an essential part of the cerned problems which were suited to performance of certain duties, this is his training and technical experience. mentioned expressly in the vacancy As regards writing in French, the de notice, which was not so in this case. fendant observes in addition that in a The applicant complains that his curriculum vitae submitted on 13 immediate superior did not have the December 1966, the applicant wrote that necessary patience to give him time to he was bilingual in Dutch and French become accustomed to his new tasks and that, besides, when he wrote some and he implies that that superior in minutes in Dutch which were after tended to engage another official and wards transcribed into French the re for that reason he wanted the applicant sults were no better.

post of Principal Administrative Assis him. As for the official whom, the ap tant is the highest in Grade B, no doubts plicant suggests, it was desired to ap can be expressed as to the fact that the point in place of him, the defendant applicant's duties should in fact have stresses that that official was put on the involved performing particularly difficult list of those qualified to enter the com and complex office work and that the petition for a post in A7-A6 in October statement contained in the vacancy 1969, the time when, the applicant notice in this respect meant exactly that. claims, it was decided to get rid of him. Writing minutes is necessarily included Moreover, since the applicant has not in the expression 'particularly difficult made a submission of misuse of powers and complex office work'.

NAGELS v COMMISSION

Moreover, this decision was out of time in the vacancy notice, in particular if because it was preceded by a probation the Dutch text, which is authentic, is report which was itself out of time in taken into consideration, and those which disregard of Article 34 of the Staff were given to the applicant during his Regulations. probationary period, constitutes a wrong­ The defendant claims that according to ful act or omission which caused him Article 9 of the Staff Regulations, the damage. In fact, after he was asked to appointment of a Reports Committee is leave his post in the Belgian civil service, optional and that therefore no complaint the applicant claims that his dismissal can be made that the Commission did was humiliating and calculated to have not appoint one. As for the report at an unfavourable influence on the de­ the end of the probationary period, the velopment of his later career in the defendant observes that it was drawn Belgian civil service where he resumed up in the first place on 30 July 1969 his former duties. The applicant assesses and that therefore Article 34 was com­ the resulting material and non-material plied with. The two following reports damage at BF 200 000. were drawn up at the end of two addi­ The defendant objects that, as appears tional periods. As for the date of the from what it pointed out in the con­ decision to dismiss the applicant, Article text of the first submission, the wording 34 does not lay down compulsory time- of the vacancy notice which the appli­ limits and in addition that date did not cant is criticizing is in no way defective, affect the applicant adversely. that he was previously informed of the tasks for which he would be responsible 2. The claim for damages and that he had led the defendant to The applicant maintains that the dis­ believe that he in fact possessed all the crepancy between the tasks laid down necessary qualifications.

4 The vacancy notice relating to the post in question provided as follows:

'Nature of the duties: Principal Administrative Assistant Performing, within the context of general instructions, particularly difficult and complex office work concerning (Dutch version: "namely"):

— the testing of species and varieties of agricultural and horticultural plants;

— the arrangement, for the purposes of comparison, fields of those plants;

— carrying out the inspection of those fields.

Necessary qualifications:

7 In his observations on that report, the applicant stressed the technical nature of his training, and whilst he considered that the assessment of his ability to fulfil the requirements of a post in B1, which was as a whole unfavourable,

NAGELS v COMMISSION

was unjustified, he acknowledged that the criticisms of his drafting and inter­ pretation of written documents were well founded.

8 The probation report of 1 November 1969 confirmed the previous report.

9 The note attached to the probation report of 19 January 1970 specified all the tasks with which the applicant had been entrusted from the beginning of December 1969 and gave an unfavourable appraisal of the results of the work which Mr Nagels had performed in this respect.

10 In his observations of 27 January 1970, Mr Nagels, whilst complaining that his actual work fell into a context which was more legal than technical and that 75% thereof fell outside the description of 'test fields' and although he stated that he entirely rejected the findings of that report, acknowledged that he still needed some time, on the one hand to familiarize himself with the many aspects of the work which were not strictly technical and practical which were required of him and in which he had no experience and on the other, 'to reach the European standard' in the performance of the administra­ tive work which was more strictly linked to the practical field experiments.

JUDGMENT OF 12. 5. 1971 — CASE 52/70

become accustomed to his office duties, for which he admitted that he was not appropriately trained.

17 During that period, several tasks were entrusted to the applicant who was put in a position to show his capacity to adapt himself to his new duties.

18 The fact that the time thus available to the applicant was not sufficient, as he himself admits, for him to reach a standard compatible with his post, cannot invalidate the regularity of the probation period in question.

19 In these circumstances, the abovementioned complaint is unfounded.

II — Complaints concerning the procedure for the adoption of the decision to dismiss the applicant

25 The applicant maintains that the Commission, by giving him tasks during his probationary period which were largely different from those laid down in the vacancy notice, has committed a wrongful act whch caused him damage.

26 He claims that the decision to dismiss him was in fact of a humiliating nature and likely to have an unfavourable influence on the subsequent progress of his career in his national civil service.

NAGELS v COMMISSION

27 It follows from the foregoing that underlying the recruitment of Mr Nagels by the Commission there may have been a misunderstanding on the part of Mr Nagels as to the nature and standard of the duties involved in the post in question and on the part of the Commission as to the nature of the applicant's knowledge and experience.

28 However in view of the applicant's knowledge of French and the contacts which he had had with the branch under which the post in question comes, any ambiguity in the wording of the Dutch version of the vacancy notice is not sufficient to establish that the conduct of the Commission was in fact likely to mislead a prudent person as to the nature of the duties involved in the post in question.

29 On the other hand, some phrases which appeared in the curriculum vitae drawn up by the applicant on 24 February 1968 such as 'checking the application of EEC legislation and standards concerning the import and export of agricultural and horticultural products, the preparation of material for meetings, the drawing up of working documents' were likely to mislead the Commission as to Mr Nagels's experience in the performance of general office duties.

35 As has been stated above, a misunderstanding between the Commission and Mr Nagels was the source of the latter's recruitment and therefore of the present proceedings.

JUDGMENT OF 12. 5. 1971 — CASE 52/70

6 In this circumstance, it is just to order the defendant to pay one half of the costs incurred by the applicant.

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 Treaty establishing the European Communities; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Com­ munities, especially Articles 9, 34 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT (Second Chamber)

OPINION OF MR ADVOCATE-GENERAL

DUTHEILLET DE LAMOTHE

DELIVERED ON 1 APRIL 19711

Mr President, National Belge des Débouchés Agricoles Members of the Court, et Horticoles. He applied for a post of Principal Ad­ Mr Nagels is an official of Belgian ministrative Assistant, Grade В 1 in the nationality. Until 1969 he performed departments of the Commission, in the the duties of an inspector at the Office Directorate-General for Agriculture in 1 — Translated from the French.