C-92/75

JUDGMENT OF THE COURT (FIRST CHAMBER) 26 FEBRUARY 1976 1

Germaine Van de Roy v Commission of the European Communities

Case 92/75

Summary

1. Officials — Probationary period — Annual leave — Inclusion — Permissibility (Staff Regulations of Officials, Article 34)

2. Officials — Probationary period — End — Dismissal — Notification — Reasonable period (Staff Regulations of Officials, Article 34)

JUDGMENT OF 26. 2. 1976 — CASE 92/75

v

Commission of the European Communities, represented by its Legal Adviser, Raymond Baeyens, acting as Agent, with an address for service in Luxembourg at the offices of its Legal Adviser, Mario Cervino, Bâtiment CFL, place de la Gare, defendant,

Application for the annulment of the decision dismissing the applicant,

THE COURT (First Chamber)

composed of: A. O'Keeffe, President of Chamber, A. M. Donner and J. Mertens de Wilmars, Judges,

1973 with a view to drawing up a reserve following in accordance with Article 34 list, was appointed probationer in Grade (2) of the Staff Regulations. LA/8 as from 16 April 1974 in the Dutch translation division of the In a letter dated 9 December 1974 the Commission. applicant set out her comments thereon.

VAN DE ROY v COMMISSION

The decision to dismiss her, effective (4) in the alternative, order the defendant from 16 January 1975, was notified to to pay to the applicant compensation the applicant by a telex message which of 480 000 Bfrs, equal to 10 months' was given to her in person on the next salary, subject to any increase or day by the Head of her Division and decrease settled during the confirmed by a registered letter of 17 proceedings; January 1975 (which the applicant states (5) order the defendant to pay costs and that she did not receive until 21 January). expenses of the proceedings.

By a letter dated 10 February 1975 the The defendant contends that the Court applicant lodged a complaint under should:

Article 90 of the Staff Regulations (1) rule that the application is unfounded requesting the annulment of this and reject it in its entirety; decision. The complaint was expressly (2) order the applicant to pay the costs. rejected by a reasoned decision of the Commission of 16 May 1975 which was notified to the applicant on 2 June III — Submissions and argu­ following. ments of the parties

The applicant then lodged the present 1. The application for annulment application which was registered at the Court on 13 August 1975. (a) Competence of the persons signing The written procedure followed the the report at the expiry of the normal course. On hearing the report of probationary period the Judge-Rapporteur and the views of the Advocate-General, the Court (First The applicant states that of the three Chamber) decided to open the oral officials who signed the report at the proceedings without any preparatory expiry of the probationary period, that is the Director of the Translation, inquiry. Documentation, Reproduction and Library Directorate, the Head of the II — Conclusions of the parties Translation (General Matters) Division and the Head of the Dutch Translation

The Commission finds no objection The applicant replies that the either in law or in practice to such a line information contained in the file does of approach. Only if the opposite line not in any way show the inadequacy of had been taken and if the Head of the work done but rather serves to show Division had failed to use the that the actual errors were very few: of 30 information resulting from the criticisms only 4 relate purely to permanent and detailed supervision translation, the others to imperfections of exercised by other more experienced style and, of these, 17 are 'not incorrect' officials of the work done by new translations. The value-judgments are translators could there be room for therefore merely arbitrary. criticism.

2 December 1974. She cannot believe that if the shortcomings attributed to her The defendant replies that the decision really existed they would not have come was taken only after a very searching to light in the course of the tests which examination of the applicant's work. These assessments constitute a she took on recruitment. Moreover she makes reference to the work of fiction comprehensive value-judgment for which the Court cannot substitute its own which she wrote in Dutch and which was considered by critics to be 'exact and assessment (Judgment of 8 July 1965, precise' in language and 'sober and well Joined Cases 19 and 65/63, Satya balanced' in style. Prakash v Commission of the EAEC [1965] ECR 533).

Finally, all living detailed examination of the quality of her languages are evolving and any translator work during her probationary period. has to refer to authoritative sources.

(c) The situation during the probationary The defendant replies that the period of period annual leave cannot be subtracted since probationary officials are subject to the The applicant states that no complaint same rules as to leave as established had been made to her before 15 officials. As to the 'days without work' November 1974 but that after that date the relative length of the periods alleged all real work had been taken from her. compared to the total length of the probationary period cannot in any way Complaints submitted by her to the have prevented the applicant's superiors coordinator of the group and to the from making a valid assessment. replacement acting for her superior who was on leave at the time, did not alter the The apllicant replies that the fact that situation.

Throughout The defendant states that under Article her probationary period the applicant had the necessary means to judge the 34 (1) of the Staff Regulations the length quality of her work and to try to improve of the probationary period for officials in it. The fact that the Commission did not Categories A and B is certainly nine months. have recourse to the second subparagraph of Article 34 (2) which provides that a report may be made at any time during 2. The application for compensation the probationary period if the work is proving obviously inadequate, in no way The applicant observes that the action prejudiced the content of the report at taken against her caused her serious the end of the probationary period or put non-material damage, since dismissal, the applicant at a disadvantage. after the probationary period, of a person who has taken part in an open (d) The length of the probationary competition is extremely rare.

The was no work (3 weeks in September and probationary period is part of the 3 weeks in October) and by periods when contract and constitutes a condition there was work but the coordinator upon which the contract is suspended; if refused to give her any (from 15 to 29 notice of termination of the contract is November 1974 and from 10 December not given, the contract takes full effect 1974 to 15 January 1975). Thus the once the condition, the completion of effective probationary period was only the probationary period, is satisfied.

JUDGMENT OF 26. 2. 1976 — CASE 92/75

of the probationary period and not of a making reference to the rules of labour definitive appiontment to be made later. law, is irrelevant. The position of a probationary official is governed by The unilateral breach of her contract of statute and can in no way be compared employment caused the applicant a loss to a contract under private law. The equivalent to 10 months' salary. probationary period is of fixed length and necessarily ends when this period The defendant emphasizes first that the expires. Therefore there must be a procedure followed complied with the decision of the appointing authority at formalities. Not only was the report at the end of the probationary period either the end of the probationary period to establish or to dismiss the probationer communicated to the applicant several and whenever that decision is made it days before the expiry of the time-limit takes effect retroactively on the date of set in Article 34 (2) but also the decision the expiry of the probationary period. to dismiss her came on the day following Therefore the applicant ceased to be an the expiry of the probationary period official as from 16 January 1975 and was although no obligatory time-limit is fixed at no time in a legal vacuum and a and although the Court has accepted fortiori not in a contractual relationship lapses of several days, even several with the Commission. The compensation months (Judgment of 12 May 1971, Case can therefore not be compared to that 52/70, Nagels v Commission of the EC, payable for breach of a contract of [1971) ECR 365 and Judgment of 12 employment in private law but depends July 1973, Joined Cases 10 and 42/72, di­ solely on the statutory provisions of Pillo v Commission of the EC, [1973] which the applicant had already received ECR 763). the benefit.

VAN DE ROY v COMMISSION

broken. No new legal relationship was and the Commission, represented by its established between her and the Legal Adviser, R. Baeyens, acting as Commission. Agent, submitted oral observations.

At the hearing on 15 January 1976 the The Advocate-General delivered his

applicant, represented by M. Goldberg, opinion at the hearing on 5 February Advocate at the Cour d'appel, Brussels, 1976.

Law

1 By an application lodged at the Court Registry on 13 August 1975 the applicant, of Belgian nationality, has sought the annulment of the decision taken in respect of her on 17 January 1975 by the defendant dismissing her from her post as a probationer official in the Dutch translation division to which she was appointed on 16 April 1974 in application of Article 34 of the Staff Regulations.

her probationary period had been made in accordance with the provisions of Article 34 (2) of the Staff Regulations, so that the defendant had adopted its opinion.

7 Secondly it is also impossible to uphold the applicant's complaint with regard to the lack of foundation for the decision taken in respect of her, to the absence of examination of her work by her superior, the head of the Dutch Translation Division, and to the incapacity of the officials who signed the report at the expiry of the probationary period to assess her ability in view of their ignorance of the Dutch language.

8 The Director of the Translation, Documentation, Reproduction and Library Directorate and the Head of the Translation (General Matters) Division were in possession of the assessment made by the coordinator of the group in which the applicant was working and were thus, in conjunction with her immediate superior, in a position to assess the applicant's ability, the assessment which they made does not appear to be without foundation.

9 In the circumstances these complaints are without foundation.

10 The applicant further complains that the contested decision was only notified to her after the end of her probationary period.

11 She states that the decision in question, which took effect on 16 January 1975, was only notified to her the next day and was only confirmed in a letter received by the applicant on 21 January.

16 However, the dismissal procedure is set out in the Staff Regulations and therefore since the relevant provisions were complied with it cannot entail any liability on the part of the Commission with regard to the dismissed probationer official.

17 Since the procedure followed for the adoption of the decision at issue was not vitiated by any defect of form, this submission must be rejected.

18 Finally the applicant maintains that the unilateral breach of her contract of employment caused her damage equal to 10 months' salary.

19 Since the appointment of the applicant was terminated in accordance with the provisions of the Staff Regulations, this final submission must also be rejected.

Costs

20 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.

1. Dismisses the application;

2. Orders the parties to bear their own costs.

O'Keeffe Donner Mertens de Wilmars

Delivered in open court in Luxembourg on 26 February 1976.

A. Van Houtte A. O'Keeffe

Registrar President of the First Chamber