C-99/77

JUDGMENT OF THE COURT (FIRST CHAMBER) OF 1 JUNE 1978 1

Dr Denis D'Auria v Commission of the European Communities

Case 99/77

Officials — Recruitment — Probationary period — Expiry — Dismissal — Decision — Reasonable period Time when it starts to run —

(Staff Regulations of Officials, Art. 34 (2))

The first subparagraph of Article 34 (2) administration is bound to adopt its of the Staff Regulations relating to cases decision within a reasonable period, that in which the employment of an official period can only start to run as from the

Brussels Bar, with an address for service in Luxembourg at the office of

Georges Nickts, Huissier de Justice, 17 Boulevard Royal,

applicant,

v

Commission of the European Communities , represented by its Legal

Adviser, Raymond Baeyens, acting as Agent, with an address for service in

19 January 1977 concerning the withdrawal of the report at the expiry of the probationary period dated 25 October 1976;

— The implied decision rejecting his complaint through official channels of 18 March 1977 concerning the withdrawal of the decision of 20 December 1976 to dismiss him;

— In so far as may be necessary, the express decision rejecting the two complaints through official channels contained in letter No 4425 from the Commission of 30 August 1977;

THE COURT (First Chamber)

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

Advocate General: J.-P. Warner Registrar: A. Van Houtte

Following the publication of Vacancy I Facts Notice/Internal Competition No COM/ — and written procedure 476/75 in July 1975 he applied for a

Dr Denis doctor post of administrator (A 7 /A 6). By a 1. D'Auria, a of

British nationality, was engaged for a decision of 8 May 1976 he was

period of two years in November 1974 appointed to that post as a probationary as a member of the staff in official in Grade A 6, with effect from 1 temporary Grade A 6 of the Medical Service at March 1976. The report at the expiry of

is Direc­ Ispra, which attached to the the probationary period, which was

torate General for Personnel and drawn up on 25 October 1976 by the

An interview between Dr D'Auria and

the Director of Personnel took place in Brussels on 8 December 1976. II — Conclusions of the parties

Following that interview a private and

confidential memorandum was delivered The applicant claims that the Court

him should: to personally on the same day, confirming that in the absence voluntary "Declare that his application is resignation with effect from 1 April admissible and well founded; 1977 at the latest, it would be necessary Consequently, annul the contested

to implement the dismissal procedure. decisions and order the opposite party dated bear the costs;"

committee, which was required to give probationary period is vitiated by: an opinion on the "complaint submitted — Lack of competence, in that it was

by Dr D'Auria". The medical signed by the Head of the Medical committee met on two occasions, that Service at Ispra, an official in Grade is, on 4 February and 18 March 1977, A 3, whereas it should in fact have and made its report to the Director been signed by the Director of

General for Personnel and Personnel: Administration on 1 April 1977. — Material error, since it is based upon Meanwhile, on 18 March 1977, Dr facts which are manifestly incorrect D'Auria lodged a complaint within the in and incomplete, such as, of Article 90 of the Staff Regu­ meaning particular, those relating to a

lations against the decision of 20 mission undertaken by the applicant

December 1976 to dismiss him. On 1 Friuli the to and those relating to August 1977 Dr D'Auria lodged the extent and of the applicant's variety present application. research activities.

By letter of 30 August 1977 the

the report at the of the attempt to obtain, under pressure, expiry his "voluntary resignation"

period the of the probationary recommending dismissal. Finally, in a memorandum to applicant (cf. the letter from the

the President of the Commission dated Director of Personnel of 8

16 December 1976, the Director December 1976) at a time when the General for Personnel and nine months of the probationary Administration adopted the conclusions period had passed without the

drawn by the report. adoption of any decision by the

opposite party. That attempt was As regards the complaint of material also based on the desire of the error, the defendant again points out opposite party to be able to invoke that under headings A and C of the the fourth subparagraph of Article second section and elsewhere in the 34 (2) of the Staff Regulations of report at theexpiry of the probationary Officials of the European period of 25 October 1976 there are Communities, according to which explanations concerning the comments the compensation equal to two his For that work was unsatisfactory. months' basic salary shall not be example, it does not in any way appear paid to an official resigns before the that the mission carried out in Friuli was end of his probationary period. unsatis­ regarded as evidence of the

the probationary period (nine Reports Committee under the

months) has come to an end the conditions laid down in Articles 10

D'AURIA v COMMISSION

and 11 of Annex II to the Staff matter. As regards the submission of

Regulations; misuse of powers, he draws attention to

the correspondence exchanged with the (c) The decision to dismiss the

letters, as if the Head of the Medical and Administration at Brussels, to

whose directorate that service is Service wished to build up a vindicatory file leading to the final probation directly attached; up report which, in such circumstances, (d) The letter from the Director of could not be anything other than Personnel of 8 December 1976 negative. constituted a final attempt, in favour of a probationary official The defendant replies by pointing out

whose unfitness to perform his that none of the factors referred to by duties is clear, to avoid the the applicant constitutes serious

recording of a situation which was evidence of misuse of powers. The only as unfortunate for the authority as concrete element is the memorandum of

for the official concerned, in a 8 December 1976 which, however, formal decision. It was handed to expresses the good-natured desire of the

Dr D'Auria, at his request, after an official whose initiative it was to take

complaints lodged by Dr D'Auria, During the course of the hearing on 16 the Commission requested the March 1978 the Director of Personnel, informal R. Baxter, medical committee, an Jeremy and the applicant

body comprising the officials who replied to certain questions raised by the were doctors holding positions of Court the interview on 8 concerning responsibility, to give an opinion on December 1976. the present case. The parties presented oral argument

The applicant challenges those during that hearing. arguments and the defendant's analysis The Advocate General delivered his of the judgments of the Court in the opinion at the hearing on 27 April 1978.

JUDGMENT OF 1. 6. 1978 — CASE 99/77

Decision

1 By an application lodged on 1 August 1977 the applicant seeks the

Officials determines the authority competent, as assessor, to draw up and sign the report at the expiry of the probationary period referred to in Article

34 (2) of the Staff Regulations.

5 The applicant maintains that the Commission could and should have adopted specific provisions in the matter by making use of the power

conferred upon it by Article 110 of the Staff Regulations, with the result

that it cannot avail itself of the absence of such provisions in order to justify the award of the duties of assessor to an administrative authority other than

the Director of Personnel.

acting as the assessors of probationary officials).

8 As regards the appointment of an assessor, Chapter 1 of the second section

of that memorandum recommends that guidance should be sought "as far as from directives in possible"

the adopted relation to the periodic report

referred to in Article 43 of the Staff Regulations, according which, as to

regards officials in Category A and the Language Service, the staff report is to be drawn up by the competent director or the chief adviser.

memorandum may be explained by the particular nature of certain situations of fact or of law in which the probationary or periodic report is drawn up.

11 Such a situation existed in this instance, in which the questions of the pro­

fessional ability of the applicant and of the duties attaching to the post

which he was to occupy in the Medical Service of the institution were so

specific that they could not have been properly assessed by the Director of Personnel.

12 On the other hand, the drawing up, in this case, of the probation report by a superior authority other than the Head of the Medical Service who, although lower in rank than the Director of Personnel, has a close working relationship with the probationary official, was better able to ensure a

praisals of him made by the assessor.

14 Furthermore, there is nothing to support the argument that that report is incomplete or incorrect as regards the extent and variety of the applicant's research activities, having regard, in particular, to the fact that the report at the expiry of the probationary period itself describes the principal activities

carried out by the applicant during that period.

15 For all those reasons the heads of the conclusions in the application directed against the report at the expiry of the probationary period must be dismissed as unfounded.

(b) The decision to dismiss the applicant

16 The applicant maintains, first, that the decision to dismiss him is illegal, inasmuch as it was adopted after the expiry of the probationary period, that is, at a date at which, by virtue of Article 34 of the Staff Regulations, the appointing authority no longer had the power to dismiss an official for the unsatisfactory performance of his duties during the probationary period.

period, that period can only sun to run as from the moment when the

report at the expiry of the probationary period has been drawn up and

communicated to the official concerned.

D'AURIA v COMMISSION

20 In this case, since the starting point for the calculation of the period was

thus 25 October 1976, the decision to dismiss him, taken on 20 December

decision to dismiss the applicant at the expiry of the probationary period

without having sought the opinion of such a body.

25 The applicant further maintains that the contested decision is irregular, inasmuch as it was adopted on the basis of a report at the expiry of the

probationary period which was drawn up and signed by an official who was not competent so to act.

26 As, for the reasons set out above, the complaint of lack of competence with regard to the report at the expiry of the probationary period is unfounded

in law, the present submission appears to be without legal foundation.

writing for his work if, by 17 December 1976, he sent the administration his resignation with effect from 1 April 1977 at the latest.

29 In the applicant's opinion, the aim pursued by the Commission in making that attempt is unlawful, a fortiori since voluntary resignation on the part of the official concerned would have enabled the administration to avoid the

basic salary months'

payment of the compensation equal to two provided

for by the third subparagraph of Article 34 (2) of the Staff Regulations.

30 The arguments put forward do not demonstrate the existence of elements of fact or of law sufficient to support the allegation of misuse of powers.

33 On those grounds the present application is dismissed.

Costs

34 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall

be ordered to pay the costs.

35 The applicant has failed in his submissions.

D'AURIA v COMMISSION

Bosco Mertens de Wilmars O'Keeffe

Delivered in open court in Luxembourg on 1 June 1978.

A. Van Houtte G. Bosco

Registrar President of the First Chamber

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 27 APRIL 1978

My Lords, taking a B.A. degree in History and Fine Arts, he read medicine and became Essentially, the applicant in this case a Doctor of Medicine. When, in 1974, challenges a decision of the Commission he was being considered for an