C-10/72

1. Officials — Recruitment — Probation — Report — Delay in making thereof —

Validity — Responsibility of the administration (Staff Regulations, Article 34) 2. Officials — Recruitment — Probation — Unfavourable report — Dismissal of the person concerned — Time limit — Nature — Commencing date

(Staff Regulations, Article 34) 3. Officials — Recruitment — Probation — Unfavourable report — Intention to dismiss — Notification to the person concerned — No obligation

(Staff Regulations, Article 34)

1. A probation report made some obligation to communicate the end of

months late is still valid but the probation report to the probationer

1 — Language of the Case: French.

JUDGMENT OF 12. 7. 1973 — JOINT CASES 10 AND 47/72

his address for service in Luxembourg at the Chambers of Ernest Arendt, 34 B/IV, rue Philippe-II, applicant

v

Commission of the European Communities , represented by its legal adviser, Pierre Lamoureux, acting as agent, with an address for service in Luxembourg at the office of its legal adviser, Emile Reuter, 4, boulevard Royal,

defendant,

Issues of fact and of law

Meat' I — Facts and Procedure 'Cattle and Division of the

Directorate-General of Agriculture. The The facts and procedure may be appointment was made without

summarised as follows: competition under Article 29 (2) of the

1. The applicant, of Italian nationality, Staff Regulations.

born in 1933, was head of an animal The end of probation report, provided

intention of the Commission to replace

him by an official of another nationality. II — Submissions of the

By letter of 7 December, the Commission parties

dismissed his complaint of 8 November, and informed him that it had examined The applicant asks the Court: the report on his probation and intended — to annul the end of probation report; to dismiss him by reason of the — to annul the implied refusal by the unfavourable nature of the report. The Commission of the administrative applicant was invited to submit his appeal of 3 March 1972; comments to the Commission by 15 December 1971 at the latest. — to annul the dismissal notified to the applicant by the letter of 21 On 14 December he sent a letter to the December 1971 with all the legal Commission, objecting to the dismissal consequences relating to the and disputing the assessments made re-establishment of the applicant in about him in the end of probation his former post, the payment of report. He referred generally to the facts set out in his appeal of 8 November. arrears and various other benefits; — to annul the appointment of Mr On 21 December 1971 the Commission Sergio Ventura to the post previously decided to dismiss him with effect from held by the applicant, viz Head of 1 February 1972. Meat' the 'Cattle and Division of the On 3 March 1972, the applicant made Directorate-General of Agriculture; an administrative appeal against the —

alternatively to declare that giving Decision of 21 December, to which the

Commission did not reply. the applicant reason to believe, from 31 July 1971 at least until In July 1972, another official of Italian mid-October, 1971 that he would be nationality, Mr Sergio Ventura, was established, constitutes a breach of appointed to the post left vacant by the duty; applicant. — to order the commission to pay the 2. The applicant made two appeals to applicant by way of damages under the Court of Justice, the first, registered various heads BF 25 000, BF 57 400, at the Court on 13 March 1972 under BF 100 000 and BF 2 500 000; number 10/72, against the Commission's to order the Commission to —

which he was entitled, to bring himself up to the required standard.

III — Pleas and arguments The Commission observes that the of the parties applicant had the benefit of a certain

extension of probation which would The pleas and arguments of the parties have enabled him to obtain a decision may be summarized as follows: which was not unfavourable. The failure to observe the time limit in no way 1. Validity of the probation harmed his interests. An end of probation report before the end of July 1971 (a) The applicant contends that the would have been just as unfavourable as probation was irregular because the end that dated 4 November 1971. Mr Amiet, of probation report is dated 4 November the Director, the applicant's immediate 1971, while the probationary period of

six months ran to 31 August 1971 and superior, states that about mid-July he made some essential basic observations that the report should have been made to the applicant setting the tone of the cne month before expiry of this period, end of probation report. Mr Amiet was i.e. 31 July 1971 at the latest. He claims so concerned that he had discussed this that if the report had been made on 31 1971 it would have been favourable freely with Mr Pizzuti, a member of the July cabinet of the President of the because his superiors had made no Commission, before the holidays. comments on him before mid-October.

The applicant is prepared to call on Likewise, the Assistant Director-General, Mr Heringa, did not keep from the witnesses to prove that he could not applicant the unfavourable opinion he possibly have imagined that his satisfacto­ had formed of him. The Commission probation was not considered considers that the applicant's arguments ry. He further submits that when he travelled with his Director, Mr Amiet to are ill-founded, the error in the matter of form concerning the end of probation Poland between 3 and 7 October, 1971, he asked Mr Amiet if he could take report not being such as to make any serious difference to him. some leave in December. Mr Amiet replied that, having regard to the work (b) The applicant contends moreover

contends was a slack month for him dismissal measure. The Staff Regulations his expressly in the last of the probation­ which effectively reduced state sentence

ary period. On this point he invokes the first paragraph of Article 34 (2) that 'a submission in the end of probation probationer whose work has not proved report which suggested the period of adequate for establishment in his post

probation be extended by three months. shall be dismissed'. Moreover the

Moreover he invokes the judgment in applicant had an opportunity to submit

Case No 10/55 (Mirrosevich v High his comments in writing on the end of

Authority, Recueil 1955-56 p. 367). probation report, the tone of which Mr The Commission contends that the Amiet had indicated to him from applicant's criticisms should be rejected October 1971. Yet he made none. In his

his are explained, not by cannot be considered as having taken the objective grounds connected with place within a reasonable period. interest of the service, but by the desire The Commission's reply is that the to promote Mr Garet, a French official

decision to dismiss him took place in Grade A 4, to the post to be filled or within a reasonable time and, if the at any rate to appoint him to it applicant did not receive notice of it temporarily. Mr Garet had been a

until 17 January 1972, this was not the candidate for the post to which the

Commission's doing. applicant was appointed. Mr Garet made an administrative appeal and only after (b) The applicant contends that his this appeal, 'undoubtedly in October, rights cf defence had been infringed because letter 7 1971', had there been any question of an the of December, unfavourable assessment and the dismissing his complaint of 8 November dismissal of the applicant. Since it against the end of probation report and appeared to the officials of the informing him of the Commission's Commission that Mr Garet's appeal was intention to take action to dismiss him, likely to be completely successful, steps did not reach him until 13 December were taken to dismiss the applicant so 1971, while he was allowed only until 15 as, if not to promote Mr Garet, at any December to submit any possible rate to give him the post temporarily. comments. He draws attention to the

fact that the report did not advise The Commission's reply is that these

dismissal but a three months'

meeting of 24 July 1972, appointed an tors and cultivators; this offer could

official of Italian nationality, Mr S. not be kept open. Although it is Ventura. In the opinion of the difficult todetermine how long the Commission the applicant has not applicant will need to find another shown that his unfavourable end of post as well paid, it seems

probation report was not a sufficient reasonable to take three years as a

ground to justify his dismissal. basis which represents a gross salary, disregarding increments, of BF 3. Claims for damages 2 500 000.

The applicant makes the point that the The Commission's reply is that the irregularity lateness of the acts and for its grounds liability and especially constitute breaches of duty giving rise to the existence of a breach of duty and damages, assumption'

even on the that damage resulting therefrom, are not the grounds set out do not necessarily substantiated in this case. The lead to annulment of the dismissal. The Commission has committed no breach of applicant contends, as a subsidiary plea, duty such as to make it liable, since the that the Commission committed a dismissal of the applicant was entirely breach of duty in leading him to believe, due to his work not having proved from July 31 1971 at least until adequate. The Commission had not led mid-October 1971, that he would be the applicant to believe that he would established. The heads of damage are as definitely be appointed at the end of his follows: six months'

(b) the lease for the applicant's flat in to believe he had definitely been Rome provided that surrender appointed from 31 July 1971, disregards any must take place three months before the fact that his appointment as an '

it expired in December 1971; on 14 official could not take place under the

September 1971 the applicant Staff Regulations before 31 August 1971.

surrendered his lease; on 31 The applicant counters this by saying December 1971 he had to remove that the Commission overlooks the fact his furniture temporarily into a flat that the probation report should have and make a second removal in July; been made before 31 July 1971 and. that the cost of these two removals may until then he had no reasonable cause reasonably be estimated at BF for thinking the report would be other 57 400; than favourable.

(c) in September 1971, he disposed of As loss regards the alleged by the his livestock hastily; lost production applicant at (b), the Commission and the cost of repurchase involved observes that the applicant was a loss which could reasonably be authorized from 4 March 1971 to move estimated at BF 100 000; to Brussels and that he should have (d) in August 1971, he was offered a transferred his belongings not to a fresh post at a salary of Lit. 7 200 000 a address in Italy but to his residence in year by Confagricoltura, an Brussels.

DI PILLO v COMMISSION

observes further that it does not see how joining the Commission. He leaves it to

conditions haste came about suddenly of the Court to decide ex aequo et bono in September and that it has not been according to the circumstances.

established that the applicant will The Commission observes that the repurchase a stock of cattle and, if he applicant is not highly specialised and

does, that he will do so at a price higher that the opportunities for work in Italy than that at which he sold. for a qualified agriculturist are not so

The he his limited he The reply is that applicant's sold as claims. applicant's

stock in September for a number of curriculum vitae shows that he has a

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.

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.

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.

DI PILLO v COMMISSION

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.

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

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.

DI PILLO v COMMISSION

Moreover, under Article 70 of the Rules of Procedure, the costs incurred by the institutions in applications by servants of the Communities shall be borne

by the institutions.

On those grounds,

Upon reading the pleadings;

Upon hearing the report of the Judge-Rapporteur; Upon hearing the submissions of the parties;

2. Orders the Commission of the European Communities to bear its own

costs and half the applicant's costs.

Pescatore Kutscher Sørensen

Delivered in open court in Luxembourg on 21 July 1973.

A. Van Houtte P. Pescatore

Registrar President of the Second Chamber