C-175/80
ECLI:EU:C:1981:221
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JUDGMENT OF 8. 10. 1981 — CASE 175/80
In Case 175/80
PETER JOHN KRIER TITHER, a former probationary official of the Commission of the European Communities, residing at Yr Hen Popdu Stem, Heol y Bont, Cydweli, Dyfed SA17 4UU (United Kingdom), represented by Ulick Bourke, Solicitor, of Messrs Clifford-Turner, Brussels, with an address for service in Luxembourg at the Chambers of J. Hoss, 84 Grand-Rue, applicant, ν
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Thomas S. Cusack, acting as Agent, with an address for service in Luxem bourg at the office of M. Cervino, Jean Monnet Building, Kirchberg, defendant,
APPLICATION principally for the annulment of the Commission's decision of 1 August 1979 to dismiss the applicant on the expiry of his probationary period,
THE COURT (First Chamber),
composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,
Advocate General: Sir Gordon Slynn Registrar: J. A. Pompe, Deputy Registrar
gives the following
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JUDGMENT
Facts and Issues
The facts of the case and the conclusions On 21 May 1979 Mr Tither went on a and arguments of the parties put forward week's leave to the United Kingdom. His during the written procedure may be application for leave, approved by his summarized as follows: superior officer, was described as being for "Special leave (voting)". The applicant claims that this was to enable him to vote in local elections. I — Facts 21 May 1979 was a Monday. Elections in the United Kingdom are usually held on Thursdays and in this case they fell Peter John Krier Tither entered the on 24 Mav, Ascension Day, which service of the Commission on 10 August together with an extra day on Friday 25 1978 as an administrative assistant (in May was a holiday for officials of the Grade Β 5) in Division 3, Shipping and Regional and Frontier Problems in Community. Transport, of Directorate A, General Development of the Common Transport On Monday 28 May 1979 the applicant Policy and Air and Sea Transport, of was not at work. He claims that on that Directorate-General VII. day and the following day he attempted to telephone his superior officer (who was on mission for the week By a decision of which the applicant commencing on 28 May). According to was notified on 26 April 1979 the the file the applicant's absence was Commission extended the applicant's reported to the Assistant to the Director- probationary period by one month, from General who on the afternoon of 10 May to 10 June 1979 pursuant to the Tuesday 29 May and on the following second paragraph of Article 34 (1) of the day telephoned the applicant at his home Staff Regulations of Officials on the in Wales and left a message. The ground that he had been absent owing to applicant is said to have received that illness from 6 November to 3 December message when he was in London. It is 1978. said that he telephoned the Assistant to the Director-General to inform him that he was sick but was nevertheless On 11 May 1979 the applicant's Head of preparing to return to Brussels. Division prepared the applicant's report at the expiry of the probationary period required by Article 34 (2) of the Staff At the end of that week the parties had Regulations. Under the heading "Re several telephone conversations. Mr lations inside the department" the Tither had returned to Wales and applicant's conduct was described as telephoned from there to say that his "Unsatisfactory". Nevertheless, the state of health had deteriorated before report recommended that the applicant he could continue his journey to be established. Brussels.
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The parties have given conflicting That compensation, which amounted to accounts of the content of these and UKL 2 420.43, was sent to him by post subsequent telephone conversations. on 23 November 1979.
The applicant was examined by a doctor The Commission replied to the in Wales on 4 June 1979. On the same applicant's complaint in a letter dated 24 day a medical certificate was sent to the April 1980. Commission recommending two weeks' absence from work. The certificate was received by the Commission's medical branch on 18 June 1979. Subsequent II — Written procedure medical certificates, dated 15 June and 6 July 1979, certified incapacity for work for three weeks and two weeks The application, dated in error 30 July respectively. 1979, was registered at the Court on 1 August 1980. On 6 July 1979 the applicant's Head of Division prepared a second probation On 12 September 1980 the applicant report which stated that Mr Tither's applied for legal aid. The Court (First conduct was unsatisfactory in three Chamber) decided by order of 2 October respects: sense of responsibility, relations 1980 to grant the applicant legal aid inside the department and punctuality. In subject to certain conditions. the General Observations the main emphasis was on the applicant's failure to The written procedure followed the justify his absence from the Commission normal course. after 28 May 1979. The report concluded with a recommendation that After hearing the report of the Judge- the applicant be dismissed. According to Rapporteur and the views of the the applicant the report reached him on Advocate General the Court (First 17 July; a telegram which he received on Chamber) decided to open the oral 20 July informed him that he had until procedure without any preliminary 31 July to submit his observations to the inquiry. However, it requested the Commission. parties to answer certain questions and to lodge certain documents before the On 1 August 1979 the Commission hearing of oral submissions. decided to dismiss the applicant with effect from 1 September 1979. By letter dated 9 October 1979, III — Conclusions of the parties registered by the Secretariat-General of the Commission on 11 October, the applicant submitted a complaint under The applicant claims that the Court Article 90 (2) of the Staff Regulations of should: Officials against the fact that a second probation report had been drawn up and 1. Declare the second "End of its content and against the decision to Probation Report" dated 6 July 1979 dismiss him. to be null and void;
By a letter of 11 October 1979 the 2. Declare the decision of the applicant applied for payment of the Commission dated 1 August 1979 compensation provided for in Article 34 dismissing the applicant to be null and of the Staff Regulations of Officials. void;
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3. Annul the Commission's decision, 14 000, full particulars of contained in a letter to the applicant which will be supplied at the dated 24 April 1980, rejecting the hearing; complaint submitted by the applicant (iii) Non-material damage, pro in writing and lodged with the Sec visionally estimated at BFR retariat-General on 11 October 1979; 500 000, including an amount in respect of the present 4. Order the Commission to pay the and continuing reduction in applicant by way of damages and the applicant's salary-earning compensation : capacity;
(a) (i) All arrears of salary and 5. In any event order the Commission to accompanying allowances pay the applicant's costs hereunder; from the date of his dismissal, together with interest thereon at 10% per 6. Order such further or other relief as annum, or such other rate may be lawful or equitable in all the as the Court may decide, circumstances. calculated from the due date of payment; The Commission contends that the Court (ii) A sum equal to the amount should: of expenses disbursed by the applicant as a result of the — Dismiss the application as un unlawful dismissal; founded; (iii) Compensation for non- material damage suffered by — Order the applicant to pay the costs. the applicant as a result of the Commission's actions, provisionally estimated at IV — Submissions and arguments BFR 300 000; of the parties
alternatively: 1. The application (b) A sum calculated under the following heads of loss: The applicant claims that there is no legal justification for the preparation of (i) Indemnity on forfeiture of a second, or even a supplementary, lease of the applicant's rented probation report where there is already a accommodation at 83 Hoorn- "valid" report on which the appointing straat, Etterbeek, Brussels, authority may act. being an amount equivalent to two months' rent in lieu of notice: BFR 11900; A fortiori, the Commission cannot justify the preparation of a second report which (ii) Expenses in seeking alterna does not comply with the time-limits set tive employment comprising out in Article 34 (2) of the Staff Regu cost of stationery, postage, lations, the report in question having photocopying and travel been made in this case nearly one month expenses (where not re after the extended expiry date of the imbursed) estimated at BFR applicant's probationary period.
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According to the above-mentioned many matters which, if relevant at all, provision the Commission's duty was to should have been included in the first prepare a report one month before the report which was properly prepared. extended expiry date. Instead of that it Such matters are inadmissible in the replaced the first report with a second second report because the purported covering the final month of probation. justification for the latter was the That amounts to unlawful discrimination applicant's conduct after the preparation between officials whose probationary of the first report. periods have been extended and others.
The Commission's officials have failed to In Joined Cases 10 and 47/72 (Di Pillo observe a general and fundamental [1973] ECR 763) the preparation of a principle of natural justice, which is the probation report outside the prescribed right of the applicant to know the period was admittedly held not to substance of the charges brought against constitute an irregularity such as to call him and the right to be heard in his own in question the validity of the report; but defence (cf. Article 34 (2) of the Staff that throws no light on the present case Regulations, according to which a where the second report is invalid prin- probationary official "shall have the right cipally because of the existence of a to submit his comments in writing" on "valid" report. the probation report). In addition, the period allowed by the Commission for the applicant to return his written comments was inadequate. The second report contains allegations which call in question the applicant's honesty and integrity without showing any reasonable evidence on which these Being so far from Brussels, moreover, he allegations are based or from which they had no access to his personal file, which could reasonably have been drawn. is supposed to contain "all reports relating to his ability, efficiency and conduct" and did not receive the copy of the Staff Regulations which he had In particular, it is incorrect to speak of requested until 27 July. It was not until "unexplained absences" when the then that he was in a position to applicant kept his superiors informed at commence preparation of his comments all times by telephone of the reasons for on the second report, which could thus his absence and submitted medical cer- not be completed until 31 July. tificates in due time.
The decision to dismiss him should be Even if the applicant's conduct could annulled for the following reasons : have been considered to be incorrect the Commission ought to have followed the disciplinary procedure provided for under Title VI of the Staff Regulations. — No evidence is adduced to support the conclusion that "Mr Peter Tither has not proved adequate for establishment in his post"; no The second report contains in the reference is made to the fact that the General Observations statements on first report did not conclude that
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the applicant was inadequate for 2. The defence establishment but, on the contrary, recommended his establishment.
The Commission first states that the arguments based on an alleged infringement of Article 34 (2) of the — The decision fails to state that the Staff Regulations are not well founded. "remarks" made by the applicant, which were written on the first report and signed by him, related only to the first favourable report, and could A common-sense reading of that never invalidate conclusions to which provision and of the judgment in the Di they were not directed. Pillo case reveals clearly that the requirement that the institution prepare a report one month before the expiration of the probation period is intended to ensure that there will be enough time for — The decision constitutes a breach of a decision one way or the other to be duty by the Commission towards the taken so as to coincide, as far as applicant inasmuch as the applicant's possible, with the expiry of the legitimate expectation of being probationary period. It is quite established in his post was frustrated. impossible that the legislature can have intended the absurd result that, having prepared the report (under the normal procedure, one month prior to the end of the probation period), the appointing authority should find itself prevented Should the contested decision be from reacting, in a second report annulled, the applicant requests the covering the period not dealt with by the Court to order the Commission to pay first report, to conduct on the part of the all arrears of salary and allowances due probationary official which justified his since the effective date of dismissal dismissal. together with interest thereon from the due date of each payment. In addition, the Commission should be ordered to reimburse the applicant the expenses The "late" production of the medical incurred by him as a result of his certificates is not sufficient to rebut unlawful dismissal and to pay him a the charge of unexplained absences, substantial sum by way of compensation especially in view of the manner in which for the considerable mental pain and the applicant failed to explain his absence anguish caused by the Commission's between the morning of Monday 28 unlawful actions. Even if the Court does May 1979 and the afternoon or the not declare the decision of dismissal following Wednesday when he spoke to invalid the applicant claims that the the Assistant to the Director-General by Commission should be ordered to pay telephone. Those explanations gave no reasonable compensation ex aequo et reason, apart from the reference to a bono by reason of the irregularities wisdom tooth, to suppose that the committed by the Commission and its absence was due to medical reasons. In officials and by reason of breaches of the the view of his superiors the applicant Staff Regulations and infringements of did not adhere to the canons of good general principles of law. conduct in the service in this matter.
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The applicant's behaviour cannot be area of conduct which was the subject of treated as a disciplinary matter. Article the severest criticisms in the second 34 (2) of the Staff Regulations stipulates report. expressly that the reports shall deal equally with the official's conduct in the service. Even a probationary official whose aptitude and work are on all It is clear from the wording of Article 34 counts satisfactory may be dismissed if that officials on probation have been his conduct in the service, as opposed to given no right, either by implication or his work, falls short of the standard expressly, to be informed of the expected of an official of the substance of the charges brought against Communities. them and the evidence for such charges, or to be heard in their own defence. Their right is clearly restricted to the submission of observations on the The Commission does not conclude from substance of the report. this that, as far as probationary officials are concerned, Article 34 (2) necessarily excludes application of the disciplinary provisions. The point is arguable and has The time allowed the applicant to make not yet in fact been raised before the his comments in writing on the second Court. The better view is that the report was adequate. Even if, as the provisions do not necessarily have the applicant claims, the Commission's letter effect of excluding the application of did not reach him until 17 July 1979 he Title VI of the Regulations to still had, as from that date, 13 days in probationary officials. But neither should which to make his comments on the the provisions in Title VI exclude the report. If he considered that period inad- application of Article 34 (2). equate, it was open to him to ask for an extension. The applicant was at no disad- vantage, furthermore, in not having access to his personal file because that As to the applicant's "legitimate could have contained only the one report expectation" of establishment as a result on his ability, efficiency and conduct, of the favourable recommendation given that is to say, the first probation report, in the first probation report, that a copy of which he had already received. expectation could in no way be described Likewise possession of a copy of the as "legitimate" because the probationary Staff Regulations was not indispensable period still had one month to run and to him. because the applicant's conduct during that period could — and in the event did — count against him. The applicant is confusing two distinct matters: on the one hand, his right to give his written comments on the As the applicant was still on probation substance of the second report and, on after the making of the first report how the other hand, his right to appeal, on could that report be expected to contain legal grounds, against a decision which observations on his conduct during his he had anticipated and the object of last month of probation? Furthermore1, which was to dismiss him (Article 90 of some of the criticisms contained in the the Staff Regulations). It cannot second report appear in the first report, seriously be argued that the applicant which mentions as unsatisfactory the was not given an opportunity to exercise
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the first of those two rights. If he did not infringement of general principles of do so it is not open to him now to law), they have been thrown out at complain of the fact. random and need more specification from the applicant.
As to the alleged invalidity of the decision to dismiss the applicant, the fact 3. The reply that it does not recapitulate textually the recommendation of the first report is of no significance. The appointing authority took its decision in the light of both The applicant claims that the defendant's reports, the first of which contained one reasoning is defective because it negative mention, and it adverted to both overlooks the clear intention of Article of those reports in the preamble to its 34 (2). decision. The provision in question states that, in order to comply with the dual The Commission is also at a loss to requirement that the probationary understand how the omission to state in official be given one month's notice of the preamble to the decision that the dismissal and that his service should not remarks made by the applicant related exceed his probationary period, the only to the first report could in any way notice of dismissal must be given at least vitiate the decision. The decision simply one month before the end of the records that such remarks as were made probationary period. by the applicant (directed to the first report, unforthcoming as regards the second) " . . . are not such as to invalidate Hence the reports on which the decision this conclusion", that is to say, the to dismiss is based must be prepared conclusion reached by the appointing before that decision is taken and authority, and not the opinions and submitted in time for the one month observations of the reporting officer as period of notice to elapse before the end stet out in each of the two reports. of the probationary official's service.
If in the last 30 days circumstances arise The Commission considers that the which are such as to give rise to doubts claims relating to expenses incurred as a as to the official's capacity, ability or result of the so-called "unlawful" conduct, the Staff Regulations provide dismissal and the compensation for for application of the disciplinary mental pain and anguish caused by the provisions which are laid down in the Commission's alleged unlawful actions rules applicable to all employees. are to be rejected without further consideration. The claim under the first heading would in any case fall to be The second report could only have been dealt with under the order for costs and made pursuant to the second subpara expenses. The claim under the second graph of Article 34 (2), and not the first heading fails for lack of evidence or subparagraph, which refers to a report argument. As to the other claims made not less than one month before the submitted by the applicant (irregularities expiry of the probationary period. committed by the Commission and its However, the first sentence of the officials, breach of the Staff Regulations, second subparagraph specifies that such a
JUDGMENT OF 8. 10. 1981 — CASE 175/80
report may be made if a probationary The applicant is at a loss to think of official's work "is proving obviously anything more relevant to a decision to inadequate". Not only does the dismiss him than a recommendation to defendant fail to demonstrate any establish him contained in a report obvious inadequacies in the applicant's covering eight months' service, when work, his work being classified as compared with a contrary recommen- "good" in the second report, but it dation covering five working days and a assumes that * the second report may period of approved leave and absence for legitimately deal with the matter of illness. The applicant's fundamental "Conduct in the department". submission as to the irregularity of the decision to dismiss him is that those who made the decision misdirected themselves. They clearly acted under the mistaken impression that the applicant had been absent for "unexplained" The second probation report contains no or "unauthorized" reasons. That criticism of the .applicant's competence, fundamental mistake of fact is output or efficiency, either for the five compounded by the fact the defendant working days "between 11 and 21 May, or for the period subsequent to 21 May. did not deduct any days from the In view of the' very short period which applicant's leave entitlement and by the elapsed after the making of the first admission in the defence that the report, and the total absence of specific applicant's medical certificates were criticisms of his work during the relevant valid. period which followed the making of the first report, it must be concluded that the second report is inadmissible. Lastly, the contested decision is clearly defective because it assumes that the applicant's remarks on the first report go to the second report. The applicant submits that the requirements of natural justice which are fundamental to the principles of administrative law should have been observed in so far as the preparation of the report was concerned. Furthermore, 4. The rejoinder even if the Court were to determine that the proper method for dealing with the applicant's remarks was to consider them after the submission of the report to the appointing authority, then in the circum- The defendant rejoins that even if made stances or this case the time allowed for late, the probation report is no less valid studying the reports was insufficient. provided it is based on and refers to the Moreover, the defendant was aware that period of probation itself. In the present during that period the applicant was sick case there was no "delay" per se, as there at his home in Wales more than 700 had been in the Di Pillo case. The late kilometres from Brussels, and thus did production of the report in this instance not have ready access to the documents was no more than a "technical irregu- which might be in his file and of which larity" resulting from the necessity for he was unaware; nor did he have access the responsible official to report again to to the Staff Regulations. the appointing authority in the light of
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the opinion he had formed on the the applicant in the sense that he was applicant's conduct during the remaining sacked; on the contrary, it declined to 30 days of the probationary period which employ him. had still to run. Hence the Court's conclusions in the Di Pillo case apply a fortiori in the present case.
The third question is whether the decision to dismiss the applicant is tainted with an irregularity such as to In brief, three questions arise, the first warrant its annulment. The appointing being whether the reports in question, authority acted upon a report consisting taken together, constitute an abuse of of two separate documents, one powers or are founded on a mistake or a complementing the other, and covering misconception of the facts such as to between them the entire probationary render them patently invalid, thus period. One of those documents was vitiating the decision which is based on partially unfavourable to the applicant them. There is a serious omission in the but nevertheless recommended his applicant's recital of the facts: his appointment. The other was largely inability to explain why, on the morning unfavourable as regards conduct in the of the day on which he should have been department (two mentions of "unsatis back at work, he was still in Wales and factory", one of "good") and did not, apparently, consult a doctor recommended discharge. Since that was until the following week. The defendant, the later of the two documents it is for its part, believes that that reveals reasonable to consider that the second conduct inconsistent with a proper recommendation supersedes the previous regard for duty and far short of what is one. normally to be expected of a Community official.
The second question is whether the V — Oral procedure defendant's failure to accord what might be called "rights of defence" amounts to a denial of fundamental rights such as to vitiate the decisions taken subsequently. It is the defendant's submission that, assuming the second report to be in no way illegal, the two reports must be The parties presented oral argument at considered to be grounded on the first the sitting on 7 May 1981. subparagraph of Article 34 (2) and to constitute, taken together, the "report" contemplated by that provision. The fact that the procedure laid down in Article 34 (2) is the final stage in the recruitment process should not be overlooked. The The Advocate General delivered his Commission did not, in reality, "dismiss" opinion at the sitting on 18 June 1981.
JUDGMENT OF 8. 10. 1981 — CASE 175/80
Decision
1 By application lodged at the Court Registry on 1 August 1980 Mr Tither, a former probationary official at the Commission of the European Communities, brought an action seeking primarily the annulment of the second probation report on him drawn up by the Commission on 6 July 1979 and of the decision to dismiss him taken by the Commission on 1 August 1979 and, as in subsidiary claims, the award of damages.
2 The applicant entered the service of the Commission on 10 August 1978 as an administrative assistant in Grade Β 5 in the Shipping Division of Direc torate-General VII, and in accordance with Article 34 (1) of the Staff Regu lations completed a probationary period of nine months which was extended by one month, from 10 May to 10 June 1979, following a period of illness from the preceding 6 November to 3 December. On 11 May 1979 the applicant's Head of Division prepared the applicant's report at the expiry of the probationary period required by Article 34 (2), which included the description "Unsatisfactory" under the heading "Relations inside the department". Nevertheless the report recommended that the applicant be established,
3 O n 21 May 1979 Mr Tither went on a week's leave to Wales. H e had been granted three days' special leave to vote in local elections, and the last two working days of the week were holidays for Community officials (Ascension Day and the Friday intervening before the weekend).
4 The following Monday, 28 May, the applicant did not return to work. He maintains that on that day and the following day he attempted to telephone his superior officer without success. According to the file the applicant's absence was reported to the Assistant to the Director-General who on the afternoon of 29 May and on the following day telephoned the applicant at his home and left a message. The applicant is said to have received the message when he was in London. It is claimed that he telephoned the Assistant to the Director-General to inform him that he was sick but was nevertheless preparing to return to Brussels. By the end of that week the
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parties had had several telephone conversations. Mr Tither had returned to Wales and telephoned from there to say that his state of health had deteriorated before he could continue his journey to Brussels.
5 On 4 June 1979 the applicant was examined by a doctor in Wales. A medical certificate signed on the same day, recommending two weeks' absence from work, was received by the Commission's medical branch on 18 June 1979. Subsequent medical certificates, dated 15 June and 6 July 1979, certified incapacity for work for "three weeks" and "two weeks" respectively.
6 On 6 July 1979 the applicant's Head of Division prepared a second probation report which stated that Mr Tither's conduct was unsatisfactory in three respects: sense of responsibility, relations inside the department and punctuality. In the General Observations, the main emphasis was on the fact that the applicant had asked for three days' special leave to vote in local elections in Wales whereas his entitlement to such leave was doubtful, and on the applicant's failure to justify his absence from 28 May 1979. The report concluded with a recommendation that the applicant be dismissed. According to the applicant the report reached him on 17 July; a telegram which he received on 20 July informed him that he had until 31 July to submit his observations to the Commission.
7 On 1 August 1979 the Commission decided to dismiss the applicant with effect from 1 September 1979. By letter dated 9 October 1979 the applicant submitted a complaint under Article 90 (2) of the Staff Regulations challenging the drawing up and content of the second probation report, and the decision to dismiss him.
8 By a letter of 11 October 1979 the applicant applied for payment of the compensation provided for in Article 34 of the Staff Regulations. That compensation, which amount to UKL 2 420.43, was sent to him by post on 23 November 1979.
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9 The applicant seeks: (a) the annulment of the second report on the expiry of the probationary period dated 6 July 1979; (b) the annulment of the decision to dismiss him taken on 1 August 1979; (c) the annulment of the decision rejecting his complaint of 9 October 1979; (d) payment of compensation to cover loss of salary, the expenses incurred as a result of his dismissal and non-material damage estimated at BFR 300 000 or, in the alternative, to cover the expense incurred as a result of the forfeiture of a lease in Brussels, expenses incurred in seeking alternative employment and non-material damage estimated at BFR 500 000 in respect of the present and continuing reduction in the applicant's earning capacity.
10 The application is based first on the infringement of Article 34 (2) of the Staff Regulations owing to the absence of any justification for the drawing up of a second report, a fortiori when that report was not made within the period prescribed by that provision, that is to say, one month prior to the í expiry of the probationary period or of any extension thereof. A second submission relates to the presence of irregularities in the preparation of the second report inasmuch as it contains assertions calling the applicant's conduct in question without showing evidence in support of such conclusions. Mr Tither claims in this respect that any criticism of his conduct should have been treated as a disciplinary matter under Title VI of the Staff Regulations. Thirdly, the applicant alleges violation of general principles of law and, finally, he claims that the decision to dismiss him is void because it makes no reference to the recommendation that the applicant be established which was contained in the first report on the expiry of the probationary period.
1 1 The Commission contends first that the argument relating to an alleged infringement of Article 34 (2) of the Staff Regulations is not well-founded; it claims that as long as the probationary period is running a new report may be drawn up at any time. The legislature certainly did not intend to prevent the appointing authority from reacting, on the basis of a second report covering the period not dealt with by the first report, to conduct on the part of the probationary official justifying his dismissal. The relevant provision should be understood to mean that the requirement that the institution prepare a report one month before the expiration of the probationary period is intended to ensure that it will have at its disposal enough time for a decision to be taken which will coincide as far as possible with the date on which the probationary period, or any extension thereof, expires.
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12 It is true that Article 34 (2) of the Staff Regulations provides that the report on the expiry of the probationary period is to be drawn up not less than one month before the expiry of the probationary period. The provision enables the report to be sent to the person concerned for any observations he may wish to make and allows the appointing authority sufficient time to study the report in order to make its decision, on the expiry of the probationary period, as to whether or not the probationary official is to be established. It should be noted, however, that the probationary period may be extended, even after the report on the expiry of the probationary period has been drawn up, so that to interpret the Staff Regulations in such a way as to exclude any possibility of drawing up a second report on the expiry of the probationary period should the conduct or ability of the probationary official prove unsatisfactory would be too restrictive.
1 3 As to the argument to the effect that the second report was not drawn up at least one month before the expiry of the probationary period but almost one month after that period had ended, it is appropriate to observe that the Court (Second Chamber) in its judgment of 12 July 1973 (Joined Cases 10 and 47/72 Di Pillo [1973] ECR 763) stated that whilst it is true that a delay in making the report constitutes an irregularity having regard to the express requirements of the Staff Regulations, this irregularity is not such as to call in question the validity of the report.
1 4 However, it is undisputed that the first probation report, recommending the establishment of the applicant, was drawn up on 11 May 1979, that the applicant went on leave on 21 May (that is to say, after an interval of five working days), and that the second probation report is not based in any way on that period of five days. It concerns solely the applicant's conduct after 28 May, the date on which he would normally have had to return to work. The essence of the Commission's complaint against the applicant in the report in question reduces itself in fact to his failure to justify his absence on and after the morning of Monday, 28 May 1979. In the Commission's view the applicant failed to adhere in that regard tó the requirements of good conduct in the service.
15 As far as concerns the complaint that the applicant took special leave for elections, it is to be observed that the applicant's written request was approved by the appropriate authority and that therefore the complaint is unfounded.
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16 It is also undisputed that the first medical certificate, which was drawn up in Wales on 4 June 1979 and recommended two weeks' absence from work, was not received by the Commission's medical branch until 18 June 1979. The certificate dated 15 June, which supported the applicant's absence until 6 July, was received on 22 June. The certificate dated 6 July 1979 supporting the applicant's absence until 21 July 1979 was received on 23 July 1979. It appears, however, that the applicant's superior officer, in drawing up the second probation report, failed to inform himself fully as to the reasons for the absence of the applicant, who had sent medical certificates justifying his absence. It is also apparent that the Commission did not, prior to taking a decision on the second probation report, which recommended dismissal, take into account, by way of explanation, the successive medical reports declaring that Mr Tither was unfit for work.
17 Therefore the second probation report, dated 6 July 1979, which proposes that the applicant be dismissed without giving any valid ground for taking such action, must be annulled and hence the decision to dismiss the applicant, dated 1 August 1979, which is based on that report, must likewise be annulled.
18 It is for the Commission to take the measures necessary to clarify the applicant's legal position, the Staff Regulations being designed to ensure that on the expiry of the applicant's probationary period any uncertainty with regard to his legal position shall be removed by means of a decision of the appointing authority either to establish him or to dismiss him on lawful grounds. The Commission is not precluded from preparing a new report on expiry of the probationary period prior to taking a decision to either effect, provided that special circumstances exist to justify such a report.
19 As the Commission is required to adopt the measures necessitated by this j udgment there is no need to give a decision on the applicant's subsidiary and additional claims.
Costs
20 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs.
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21 Since the applicant was granted legal aid by the Court in the amount of BFR 80 000, the Commission must be ordered to reimburse that sum to the Court and to bear the other expenses incurred by the applicant.
On those grounds,
THE COURT (First Chamber)
hereby:
1. Annuls the second probation report, dated 6 July 1979, and the decision to dismiss the applicant, dated 1 August 1979;
2. Orders the Commission to pay the costs, reimbursing to the Court the sum of BFR 80 000 granted to the applicant by way of legal aid.
Bosco O'Keeffe Koopmans
Delivered in open court in Luxembourg on 8 October 1981.
For the Registrar H. A. Rühl G. Bosco Principal Administrator President of the First Chamber