C-25/80

JUDGMENT OF T H E COURT (SECOND CHAMBER) OF 26 FEBRUARY 1981 1

Alain de Briey v Commission of the European Communities

"Dismissal of temporary staff"

Case 25/80

Officials — Temporary staff— Dismissal for incompetence — Observance of the period of notice stipulated in the contract — Discretion of the administration — Judicial review — Limits (Conditions of Employment of Other Servants, Art. 47 (2))

It clearly follows from Article 47 (2) of and that period is in accordance with the the Conditions of Employment of Other said provision. In the case of dismissal Servants that it lies within the discretion for incompetence the Court may not of the competent authority to terminate therefore review the basis on which that a contract concluded for an indefinite discretion was exercised, except where a period, provided that the period of patent error or a misuse of power can be notice stipulated in the contract is given proved.

T H E COURT (Second Chamber)

composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges,

Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

Infrastructure Division. Clause 5 of the nothing else which might cause [him] contract read as follows: even greater worries". Towards the middle of February the "The contract may be terminated for the applicant left for Washington, the official reasons and on the conditions laid down purpose of his mission being the main- by Articles 47 to 50 of the Conditions of tenance of relations with the Com- Employment of Other Servants. The mission's delegation. That trip enabled period of notice required shall be one him to join his son in the United States month for each year of service who was ill and was to undergo a heart completed, provided that such notice transplant operation. The child died shall not be less than three months or there at the age of 12 years. In addition, more than 10 months." during his stay in the United States the applicant was the victim of an armed assault which caused him to suffer a It emerges from the documents before partial permanent invalidity of 27% for the Court — albeit from a letter of 6 which he was compensated pursuant to September 1978 subsequent to the Article 73 of the Staff Regulations. applicant's transfer to Petten and sent by the Director of the Joint Research Centre (hereinafter referred to as "the At the beginning of September 1978 the Centre") at Ispra to the Director of the applicant returned to Petten. By a Centre at Petten — that the apparent memorandum of 5 October 1978 the reason for the applicant's transfer to Director-General of the Centre informed Petten must have lain in the fact that the him following a personal conversation applicant had not performed his work that, despite his memorandum of 8 satisfactorily at Ispra, that it was desired February, his performance as a manager to give him a further chance in a centre was still considered unsatisfactory and where the administration would be less that the Director-General would be difficult and, finally, that the applicant "forced to come to a decision on [his] had been advised of those reasons. contractual position by the end of 1978".

General of the Centre pursuant to Article Article 24 of the Staff Regulations reads 90 (2) of the Staff Regulations. The as follows: implied decision rejecting the complaint "The Communities shall assist any was deemed to have been taken on 27 official, in particular in proceedings August; on 17 October an express against any person perpetrating threats, decision was adopted and was notified to insulting or defamatory acts or the applicant on 25 October 1979. The utterances, or any attack to person or applicant has brought this action against property to which he or a member of his the decision dismissing him and against family is subjected by reason of his the implied and express decisions position or duties. rejecting his complaint. They shall jointly and severally 2. Summary of the applicable regulations compensate the official for damage suffered in such cases, in so far as the As is clear from the clause of his contract official did not intentionally or through reproduced above, the applicant is grave negligence cause the damage and subject to the Conditions of Employment has been unable to obtain compensation of Other Servants and not to the Staff from the person who did cause it. Regulations of Officials. It [sic] shall facilitate such further The scheme for temporary staff referred training and instruction for officials as is to by Article 2 (d) of the Conditions of compatible with the proper functioning Employment of Other Servants was of the service and is in accordance with introduced in 1976 in order to replace its own interests. the scheme under the Staff Regulations Such training and instruction shall be for staff paid from the research and taken into account for purposes of investment appropriations so as to enable promotion in their careers." temporary staff paid from the research appropriations to be engaged for an indefinite period without any amendment 3. On hearing the report of the Judge- of the remaining provisions relating to Rapporteur and the views of the the obligations and rights of temporary Advocate General, the Court (Second staff. Chamber) decided to open the oral procedure without any preparatory In the case of discretionary termination inquiry. of the contract by the institution, the only condition laid down by Articles 47 to 50 referred to in the applicant's II — C o n c l u s i o n s of the p a r t i e s contract is that the period of notice must be observed. In contrast, Article 51 of The applicant claims that the Court the Staff Regulations of Officials requires the reasons for the decision to should: be stated and Annex IX thereto lays — Declare the application admissible; down a special procedure. Articles 11, and 16, 20 and 28 to 30 of the Conditions of Employment of Other Servants expressly — Primarily, provide that Articles 11 to 26, 55 to 61, Annul the decision dismissing the 63 to 70 (a) and 72 to 76 respectively of applicant notified by the letter of the Staff Regulations of Officials shall 1 February 1979 from the Director- apply by analogy, whereas no provision General of the Joint Research of the Conditions of Employment of Centre; Other Servants makes Article 51 of the — In the alternative, Staff Regulations or Annex IX thereto Order that the decision to dismiss applicable. him shall not take effect until the

Council of Ministers has taken a months, with interest thereon at the decision on a proposal from the rate of 8% per annum from Commission intended to protect 15 August 1979; temporary staff dismissed from the institutions of the European Com- — In any event, munities against risks such as unem- Annul the implied and express ployment, sickness and invalidity, or decisions rejecting the complaint at least until the defendant has submitted by the applicant on arranged for the applicant to be 27 April 1979; and covered against such risks, and order that his contract shall meanwhile continue in force with retroactive — Order the defendant to pay the costs. effect from 15 August 1979; The Commission contends that the — In the further alternative, Court should: Order the defendant to adopt such measures as are necessary to enable — Dismiss the application as un- the applicant to enjoy from the date founded; and on which his contract expires, social protection of the same standard and on the same conditions as the — Order the applicant to pay the costs. protection envisaged for temporary servants in the Proposal for a Council Regulation (ECSC, EEC, Euratom) III — S u b m i s s i o n s and argu- amending the Staff Regulations of m e n t s of the p a r t i e s Officials and the Conditions of Employment of Other Servants of the European Communities (Official The applicant puts forward three Journal 1979, C 191, p. 9) or, at submissions. least, order the defendant to adopt the measures necessary to enable the applicant to enjoy from the date on First submission which his contract expires social protection in the form in which it will be provided for temporary staff by The applicant first claims that the the regulation adopted by the dismissal involves an infringement of the Council as a result of the said rules and principles of law, in particular proposal; those requiring that all administrative measures must set out the reasons on which they are based, something which — In the still further alternative, did not occur in this case. Moreover, the Declare that the applicant should applicant several times challenges the have been granted a period of notice reason which emerges from the of 10 months; documents before the Court, namely his alleged incompetence, and claims that Consequently, order the defendant the defendant has the burden of proving to pay the applicant by way of the soundness of the reason put forward, compensation a sum equal to the which in reality is vitiated by an error of remuneration which would have been fact and is not legally admissible. payable to him during the period of notice which he was denied, that is to The Commission points out in that say, a period of six and a half regard that the decision to dismiss the

applicant was taken pursuant to Article those provisions do not apply by analogy 47 (2)(a) of the Conditions. As the to temporary staff. period of notice was observed there was no error of law. Nor was there any infringement of the general principle of the rights of the Nor was there any error of fact vitiating defence because it is clear from the the reasons on which the decision was documents before the Court that on based. The work performed by the several occasions the applicant's attention applicant was considered unsatisfactory was drawn to the fact that he was not and, even though he was criticized for performing his work satisfactorily, that this, there was no improvement on his he was given the opportunity to reply

In the defence and the principle of equality. If applicant's view there is a general reliance cannot be placed on such an principle of equity and social security analogy, the application of Article 51 of which in the absence of written the Staff Regulations and Annex IX provisions on the matter placed a duty thereto arises from the principle of on the defendant, in pursuance of the respect for the rights of the defence and aforesaid rights or, in any event, by from the principle of equality, inasmuch virtue of his status as a temporary as the applicant, who was engaged as servant under Article 2 (d) of the head of division for an indefinite period, Conditions of Employment of Other held a position equivalent to that of an Servants with a contract for an indefinite

DE BRIEY v COMMISSION

obligations because in his opinion the As regards cover against the risks of duty of assistance requires that since sickness, invalidity and unemployment, the defendant charged him with proposals have in fact been submitted to incompetence it should have enrolled the Council by the Commission but have him on the management training course not yet been adopted by the Council, which it organized. Moreover, as the and consequently the applicant may not termination of the contract of a tem- benefit from them. porary servant engaged for an indefinite period constituted an exceptional measure, in view of the applicant's age and his position as head of division the defendant should have allowed him the maximum period of notice permitted by IV — O r a l p r o c e d u r e the regulations, that is to say 10 months. The applicant, represented by E. Lebrun The Commission asserts that the ter- of the Brussels Bar, and the Commission, mination of the applicant's contract represented by D. Sorasio, a member of constituted neither an abuse of the right its Legal Department, acting as Agent, of dismissal nor a misuse of power, but and by D. Jacob of the Brussels Bar, quite simply was a measure which presented oral argument at the sitting on became necessary in the interests of the 4 December 1980. Mr Van Westen, service. Director of the Centre at Petten, answered questions put by the Court. The period of notice was determined strictly in accordance with the rules and The Advocate General delivered his the applicant did not ask to be enrolled opinion at the sitting on 29 January on the course in question. 1981.

3 Following conversations with the applicant, the Director of the Centre in Petten criticized him in a memorandum of 31 January 1978 for the manner in which he had performed his duties and requested him to "take the division in hand". Following a written denial of those assertions, the applicant left towards the middle of February for the United States where he remained on mission until the beginning of September. During that stay the applicant was the victim of an armed assault and suffered a partial permanent invalidity of 27% for which he was compensated pursuant to Article 73 of the Staff Regu- lations which applies to officials and other servants.

4 On his return the applicant had a further personal conversation, on this occasion with the Director-General of the Centre, which was followed by an exchange of memoranda from which it is clear that his work was still considered unsatisfactory. Finally, by a letter dated 1 February 1979 his contract of employment was terminated with three and a half months' notice, but this was postponed until 15 August 1979 on account of illness.

DE BRIEY v COMMISSION

T h e p r i n c i p a l claim

7 In answer to these arguments it must first be emphasized that it clearly follows from Article 47 (2) of the Conditions of Employment of Other Servants that it lies within the discretion of the competent authority to terminate a contract concluded for an indefinite period, provided that the period of notice stipulated in the contract is granted and that that period is in accordance with the said provision. In a case of dismissal for incompetence the Court may not therefore review the basis on which that discretion was exercised, except where a patent error or a misuse of power can be proved.

8 The facts and arguments put forward by the applicant make no suggestion that such was the case. Notwithstanding the request to take the division in

JUDGMENT OF 26. 2. 1981 — CASE 25/80

hand sent to the applicant by his immediate superior on a certain date, the competent authority, in order to come to a decision on his dismissal, was able and obliged to take into consideration the entire career of the person concerned, including the period prior to that warning. With regard to the so-called "short-circuiting", it has not been established that in his direct dealing with the applicant's subordinates the Director exceeded what he might reasonably consider necessary in order to remedy a situation caused by the applicant's own incompetence. Moreover, the competent authority was aware of the applicant's argument on that point when it took the decision to dismiss him. Finally, the administration cannot be criticized for failing to enrol the applicant on a course when he did not ask to be enrolled and when the course was on a subject with which he should have been familiar.

DE BRIEY v COMMISSION

servants. Even if such a duty does not exist, the defendant is alleged to be responsible for that deficiency in the law.

12 In this connexion it must be remembered that Council Regulation (ECSC, EEC, Euratom) No 2615/76 of 21 October 1976 amending Regulation (EEC, Euratom, ECSC) No 259/68 as regards the Conditions of Employment of Other Servants of the European Communities (Official Journal 1976, L 299, p. 1) made it possible in the fields of research and investment to employ temporary servants for an indefinite period and to require them to perform duties which in other fields of Community work are carried out by officials. That Regulation, which, according to the third recital in the preamble, is not under any circumstances to constitute a precedent with regard to employment in the European public service, has made flexible administration possible in those fields, which may be readily adapted to the varied needs of the service and the available financial resources. However, although these temporary servants perform the same duties as those otherwise entrusted to officials, they do not enjoy the same security of employment.

13 In that respect it certainly seems regrettable that the Community authorities have not yet succeeded in establishing in favour of such staff a social security scheme which includes insurance against the risk of unemployment. Nevertheless, the existence of such a deficiency constitutes a reason neither to postpone the applicant's dismissal nor to set up in his favour an ad hoc scheme modelled on a proposal for a regulation upon which the Council has not yet acted. Since the applicant was aware, or ought to have been aware, of the absence of such insurance when he was engaged as a temporary servant, such a deficiency cannot provide the basis of a claim for compensation either.

18 For all these reasons the application must be dismissed in its entirety.

Costs

19 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs.

20 The applicant has failed in his submissions.

21 However, Article 70 of the Rules of Procedure provides that in staff cases the institutions shall bear their own costs.

On those grounds,

Delivered in open court in Luxembourg on 26 February 1981.

A. V a n H o u t t e P. Pescatore Registrar President of the Second Chamber

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 29 JANUARY 1981 1

Mr President, 1 November 1976, allowed employment Members of the Court, to be terminated in accordance with Articles 47 to 50 of the Conditions of Employment of Other Servants; under The applicant in the case on which I those provisions the period of notice shall give my views today entered the required depended on the length of service of the Commission as a service (one month for each year of temporary servant in Grade A 3 on a service subject to a minimum of three two-year contract which was concluded months and a maximum of ten months). on 14 July 1975 and took effect on As the applicant's 12-year-old son, who 15 August 1975. Initially he was was seriously ill with heart disease, employed as Head of the Administration needed to undergo an operation in the and Personnel Division at the Joint USA which in fact led to his death a few Nuclear Research Centre in Ispra. From months later, the applicant was assigned 16 March 1977 he worked at the Joint to the Commission's delegation in Nuclear Research Centre in Petten as Washington with effect from 15 Head of the Administration and Infra- February 1978 in order to enable him to structure Division. His original contract stay near his son. During that period (in of employment was replaced on 26 May April 1978) he was the victim of a street 1977 by a contract for an indefinite assault and received severe gunshot period concluded pursuant to the wounds. This resulted in a partial perma- combined provisions of Articles 2 (d) and nent invalidity for which compensation 8 of the Conditions of Employment of calculated initially at 20% and later at Other Servants. Clause 5 of that 27% was paid to him in pursuance of contract, which took effect on Article 73 of the Staff Regulations.