C-98/81
ECLI:EU:C:1982:111
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JUDGMENT OF 25. 3. 1982 — CASE 98/81
period. That description must be which that has been done in the event sufficiently precise to permit the of manifest error. appointing authority to adopt its decision and to state the reasons on which it is based. 4. The provisions of Article 24 of the Staff Regulations are concerned with 3. It is for the competent administrative the defence of officials against the authority to use its power of acts of third parties and not against assessment as regards the ability of acts emanating from the institution the person concerned to perform the itself, the review of which is governed duties entrusted to him, subject to by other provisions of the Staff Regu- review by the Court of the manner in lations.
K.J. MUNK, a former probationary official of the Commission of the European Communities of 9 Rue de Maelbeek, 1040 Brussels, assisted and represented by G. Vandersanden of the Brussels Bar, 38 Avenue de Blau- waerts, 1050 Brussels, with an address for service in Luxembourg at the Chambers of N. Eden, 2 Rue Goethe,
applicant,
v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by J. Pipkorn, a member of its Legal Department, acting as Agent, assisted by R. Andersen of the Brussels Bar, 214 Avenue Montjoie, 1180 Brussels, with an address for service in Luxembourg at the office of O. Montalto, a member of its Legal Department, Jean Monnet Building, Plateau du Kirchberg,
defendant,
APPLICATION for the annulment of the Commission's decision of 1 July 1980 to terminate his engagement on the expiration of the probationary period with all the consequences of such an annulment, in particular as regards his reinstatement in his career,
MONK v COMMISSION
THE COURT (Second Chamber),
composed of: O. Due, President of Chamber, A. Chloros and F. Grévisse, Judges,
Advocate General: G. Reischl Registrar: P. Heim
gives the following
JUDGMENT
Facts and Issues
The facts, the conclusions and the recommended that the applicant should submissions and arguments of the parties not be retained in the Commission's put forward during the written pro- service. cedure may be summarized as follows: The report was communicated to the applicant on 22 June 1980. He returned it on 27 June with his observations. I — F a c t s and w r i t t e n p r o c e d u r e By decision of the Commission of 1 July 1980, with effect from that day, the Bv decision of 18 March 1980 with effect from 1 October 1979, the applicant was dismissed. applicant entered the service of the Commission in Grade A 7. He was On 26 September 1980 the applicant, in assigned to Directorate General pursuance of Article 90 (2) of the Staff XIV/B/2 (Fisheries — Market and Regulations of Officials, lodged a Structure — Structural Policy Division). complaint against that decision.
On 20 May 1980 he was informed by a The Commission did not adopt an memorandum from the head of the express decision rejecting the applicant's division to which he was assigned that he complaint until 21 May 1981. would not recommend his establishment at the end of the probationary period. In the absence of a reply to his complaint wiihin the prescribed period of four The applicant replied to that months, Mr Munk applied to the Court memorandum on 9 June 1980. for annulment of the implied decision rejecting his complaint. On 19 June 1980 the head of division put forward a report at the expiry of the His application was lodged at the Court probationary period in which he Registry on 24 April 1981.
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Upon hearing the report of the Judge- the grounds on which it ís based and by Rapporteur and the views of the misuse of powers. Advocate General the Court (Second As regards the first submission of Chamber) decided to open the oral infringement of Article 34 (2) of the procedure without any preparatory Staff Regulations, the applicant puts inquiry. It did however ask the forward the following arguments: Commission to give information relating to the applicant's duties during his Under that provision a report is to be probationary period and for an appraisal made on the ability of a probationary' of his work from the scientific point of official "not less than one month before view in terms of the requirements of the the expiry of the probationary period". service as well as information on the Whereas the probationary period expired duties at present carried out by the on 30 June 1980, the probation report applicant in Directorate General VI of was drawn up only on 19 June and the the Commission as a national technical applicant received it only on 22 June. He specialist, together with an appraisal of returned it to his directorate on Friday the quality or his work. This information 27 June with his observations. According was furnished within the period pre- to the applicant, the appointing authority scribed. therefore had at its disposal only one day, Monday 30 June, to weigh up the applicant's arguments, which concluded II — Conclusions of the parties with a request for reconsideration of his case. 1. The applicant claims that the Court According to the applicant it must should: therefore be recognized that the period Declare the application admissible and prescribed and guaranteed by Anicie 34 well founded; (2) of the Staff Regulations, which is Consequently annul the Commission's absolutely binding, has not been decision of 1 June 1980 dismissing the observed as regards the drawing up of applicant at the end of his probationary the probation report and furthermore period; that the observations made by him, which can only have come to notice at a Consequently grant the applicant the late stage, were not seriously considered reinstatement in his career to which he is by the defendant in such a way as to be entitled; able to come to a decision with full Order the defendant to pay the costs. knowledge of the facts. The result is that, even if the validity of 2. The defendant contends that the the probation repon cannot be called in Court should: question from the point of view of Dismiss the application as unfounded; failure to observe the period prescribed Order the applicant to pay the costs. for its drawing up, the subsequent decision to dismiss him is unlawful for failure to observe the period in question III — S u b m i s s i o n s and argu- or to put the applicant in a suitable m e n t s of t h e p a r t i e s position to make his observations on the probation repon. 1. The applicant claims that the As regards the submission that the decision of 1 July 1980 to dismiss him decision to dismiss him is vitiated by was adopted in breach of Article 34 (2) errors in the statement of the reasons on of the Staff Regulations and that it is which it was based, the applicant vitiated by an error in the statement of observes that the probation repon on
MUNK v COMMISSION
which that decision is based reproduces that state of affairs grew worse, ,only a pan of the truth and in fact that according to the applicant, as a result of ípart which might be regarded as un- the fact that his head of division spoke favourable to the applicant. neither Danish nor English, the applicant's working languages. The result was that not only did he have, as a In that repon he is charged with the probationary official, to face increased following shortcomings: lack of under- difficulties in carrying out his work but standing of his duties; insufficient that also he wrongly gave his head of capacity to adapt himself to the nature of division the impression of a probationary- the work required; poor judgment; official who lacked a spirit of incapacity to organize work in terms of cooperation and discipline. the needs of the service; an insufficient sense of responsibility and unsatisfactory performance of the duties assigned to In addition the applicant disputes the him; the theoretical nature of his work, reservations stated in the probation which took no account of reality; refusal report with regard to the quality and to follow instructions given him through quantity of his work. He maintains that such channels and rigidity in his contacts when his work was produced it was with others. accepted without any criticism and that in certain cases it was very well received. The applicant refers to his papers on the The applicant states that these charges over-capacity of the EEC fishing fleet, are unfounded as being contrary to the the development of the N o n h Sea facts as regards both the quality and the Centre, the economic effect of aids on quantity of the work which he the sardine and anchovy industries, performed during his probationary which he produced together with others period and as regards his conduct in the such as the one on the establishment of a service. Norway pout box or the one on Jutland.
He emphasizes that not only were these In general terms and to the extent to papers of a satisfactory standard but that which these charges consist substantially he had to produce them whilst facing in allegations that he failed to use official problems relating to the difficulties of channels and was incapable of providing communication with his head of division work in accordance with the guidelines for linguistic reasons, the absence of worked out through official channels the instructions and even of technical applicant puts forward the following facilities (absence of English language arguments: typists) and the absence in his division of persons with whom he could converse with regard to technical and economic Without showing any lack of respect for data whilst working on some of his his immediate superior and with a full papers. sense of the necessary discretion the applicant sought to obtain information from his colleagues as to the best way of As regards the submission of misuse of executing the work assigned to him to powers, the applicant maintains that it is make up for the lack of precise in- clear from the following considerations. structions from the head of his division The particularly severe nature of the whose economic and technical probation report, which led directly to knowledge was not sufficient for him to his dismissal, was due to the animosity be able to guide his work. Furthermore of his head of division against him
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which was the result of the absence that if it had been possible for him to be of communication and collaboration transferred to another post in Direc- between them because of linguistic torate General VI or if some quid pro difficulties and the lack of instructions quo could have been provided, in given by his head of division as regards exchange, for Directorate General XIV the preparation of the work which he he would not have been dismissed. performed during his probation. The applicant states that in addition to T o this must be added the fact that, as the considerations set out above his- emerges from the probation report, the superiors refused to give him ihte'1 applicant's superiors had recommended assistance due under Article 24 of the him before Easter 1980 to find another Staff Regulations of Officials and took assignment so as to pursue his probation the decision to dismiss him without in another directorate general in order awaiting the outcome of the requests possibly to obtain establishment. which he was in the process of making to obtain a transfer, in spite of the fact they knew about these steps.
Finally his The applicant states that in fact he superiors' determination to obtain his undertook a series of steps with the dismissal and the misuse of powers Internal Resources Division in Direc- alleged may be shown according to the torate General XIV, which appeared applicant by the contradictory attitude of prepared to take him, and that he also the Commission. approached other directorates general. The applicant claims that any transfer within the directorate general, which He observes in this respect that either he would have meant that his head of had not the necessary qualifications to be division would have lost his post within established at the end of his probation in the division, was for that reason the division to which he was assigned, in
obstructed. He states in this regard that, which case it would be difficult to as appeared at the end of June, in a consider his assignment to another telephone conversation with his head of department, or else he did in fact possess division, the latter accepted his transfer the qualifications required for to Directorate General VI — with a establishment, in which case they should subsequent modification of the probation be taken into consideration to permit of report — on condition that he could a favourable probation report and his obtain in exchange the assignment to his subsequent establishment. division of a qualified official, which
could not be done. According to the applicant the same contradiction is to be found between the According to the applicant the contents verdict on his probationary period which of the probation report were to a large led to his dismissal and his appointment extent due to the fact that his head of as from 1 December 1980 as a national division wished to keep at all costs the technical specialist by Directorate "General VI, a post calling for post which he occupied even if that were qualifications and skills similar to those to lead to his dismissal at the end of his required of the Commission officials,
probation. together with a sense of the importance of the use of official channels which the The applicant remarks that in these Commission accused him of lacking as a circumstances it may well be thought probationary official.
MUNK v COMMISSION
2. The Commission puts forward the with full knowledge of the facts after the following arguments: applicant had been enabled to present his own obsen-ations, which he in fact did As regards the first submission relating to on 27 June 1980. an infringement of Article 34 (2) of the Staff Regulations, it points out that it is As regards the submission that there was common ground that the probation an error in the statement of grounds on which the decision was based, the report was not drawn up within the Commission remarks that the probation period prescribed by that provision. repon contains the essential findings However, it refers to the case-law of the made by Mr Munk's superiors as regards Court according to which, although his conduct in the service and that this delay in drawing up the repon thus constitutes a decisive factor constitutes an irregularity, it is not of concerning the appointing authority's such a nature as to call in question the decision. It maintains that an appraisal of validitv of the report (judgment of 12 the candidate's ability is a matter for the Julv 1973, Joined Cases 10 and 14/72 Di exercise of its discretion subject to a Pillo v Commission [1973] ECR at p. review by the Coun of the ways and
770). It maintains that the decision to means which may have led to that appraisal, as is clear from the judgments dismiss an employee does not necessarily of 19 July 1955 (Case 1/55 Kergall v have to be adopted on a date coinciding Commission of the European Coal and with that of the expiration of the Steel Community, [1954 to 1956] ECR probation but must simply be taken 151) and of 12 December 1956 (Case within a reasonable period which starts 10/56 Mirossevich v High Authority of the to run from the time at which the report European Coal and Steel Community, on the expir.· of the probationary period [1954 10 1956] ECR 333).
has been drawn up and communicated to the person concerned. It stresses that the The Commission moreover criticizes the contents of the report could not have applicant's arguments to the effect that come as a surprise to the applicant, who his head of division showed animosity had been warned during his probation, towards him, since he fails to recognize in particular bv a memorandum from his that the probation repon, which is the head of división of 20 May 1980, of the basis for the decision to dismiss him and problems created by his conduct, and which was drawn up by the head of who had been advised to find if possible division, also bore the signatures of the another assignment so as to continue his Director of Directorate B, Market and
probation. Structure, who drew up the repon in consultation with the head of the The Commission states moreover that it division and that of the Director General was because his superiors expected that of Directorate General XIV, who thus such a change of assignment would take approved its content. place that the probation repon was drawn up late, as well as owing to the The Commission does not dispute the fact that Mr Munk had been late in applicant's intellectual qualities but producing a paper which he had been maintains that the repon on the expiry of asked to write on 20 May 1980. the applicant's probation does indeed reflect the applicant's actual conduct Moreover the Commission maintains during his probationary period and that that the probation repon and the whilst his probation was not entirely documents appended to it were negative, it was so on balance. sufficiently detailed to allow the appointing authority to adopt its decision The applicant thus neglected the proper at the end of the period of probation official channels by "short-circuiting" his
JUDGMENT OF 25. 3. 1982 — CASE 98/81
head of division, criticizing his instruc- officers had no authority in this respect tions and even attempting to discredit and therefore could not take any precise him with his superiors. steps or assume the responsibility for the failure of the moves made in this Furthermore, according to the Com- direction. mission, the applicant by his tendency to follow his own ideas in the pursuit of the It observes that he was advised to make subjects assigned to him, by his obstinacy such a transfer before the end of his in not being willing to follow the instr- probation in view of the unfavourable uctions which his superiors in fact gave prospects which were becoming apparent him, including his director, whose as regards his establishment in the direc- language was English, and by his torate in which he was serving his tendency to approach subjects in a probation.
theoretical frame of mind, involving himself in long trains of thought without The applicant's superiors gave no under- any direct link with the factual data, taking and made no promise in this acted in such a way that his work respect. The failure of this attempt to suffered and had to be re-done several obtain a transfer was due to his decision times. not to follow official administrative channels and to the fact that those in Furthermore the Commission claims that charge of the directorates with which he the applicant was guilty of indiscretion had been in touch knew the manner in by cultivating contacts outside his direc- which the applicant had served his torate general on the subject of the probation until then in the division to papers which he had been asked to which he was assigned.
produce such as the one on the Norway pout box, a subject which had serious The Commission continues by saying political implications. that although the applicant's superiors were not unaware that he was making Finally the Commission claims that the genuine efforts to obtain a transfer, they applicant purposely exaggerated the could not wait indefinitely for them to linguistic and technical difficulties, which come to fruition. were the same as those encountered by any probationary official, by refusing in The preparation of the probation repon addition to follow instructions even and the adoption of the consequent when they might have been useful io him decision were thus effected, not only in the performance of his work. without infringing the rule relating to the assistance to be given to officials, as the As regards the submission of misuse of applicant claims, but also in conformity powers, the Commission maintains that with the rules governing its content and the applicant does not adduce even a the time at which it should be scintilla of evidence in support of that undenaken.
submission. The probation repon gives an objective picture of the facts or the Finally, the Commission stresses that probation, even emphasizing the neither the recommendation made to the applicant's theoretical knowledge and applicant to find another assignment nor mentioning, quite properly, his principal the fact that he was engaged as a activities. national technical specialist by another directorate general is in conflict with the As regards the applicant's transfer, the content of the probation repon or the Commission remarks that his superior decision to dismiss him.
MUNK v COMMISSION
The recommendation with regard to the (ii) Examination of projects and applicant's transfer was made so as to investment programmes in the permit him to prove his qualities if fisheries sector (in particular con- possible in another department in struction of ships, and industrial carrying out tasks of a different content installations); in view of the inconclusive results to which his probation had led within the (iii) Following up of certain studies division to which he was assigned. preponderantly of an economic nature prepared outside the As regards his actual position as a institution. national specialist, the Commission remarks that the qualifications and abilities required for that post are II _ Work different from those required for officials. 1. Analysis of structural problems Whereas national specialists, the Commission continues, are expected to (a) Work on the Norway pout box: perform only precise and specific tasks, The object of the work was to fa- officials are expected to adapt themselves cilitate the search for a solution, to many varied duties for the attainment from the structural point of view, of objectives whose realization in fact to the problems raised by the presupposes the suppression of personal conservation measures known as views and subordination to the "the Norway pout box". This requirements of the public service in should have led, after noting the which some officers are set in authority Danish losses consequent upon over others. the British measure prohibiting fishing for pout, to indications of On hearing the report of the Judge- the best way of helping fishermen Rapporteur and the views of the and industrialists to divert their Advocate General the Court decided to activities at least partially into open the oral procedure without any other channels. preparator)' inquiry. It did however ask the Commission to supply information From the beginning the head of regarding the duties performed and the the division tried to restrict the work carried out by the applicant during study to its proper subject within his probation and an appraisal of the the scope of the division, but manner in which his present duties as a without success. national specialist are carried out. In spite of the foregoing the paper was limited to showing that the That information, which was supplied British measure was damaging within the period prescribed, is as Danish fisheries; from this point follows: of view and although based on certain hypotheses which were open to criticism, the paper may I — Description of Mr Munk's duties in be considered as valid on a strictly Directorate General XIV theoretical basis but it was perfectly useless, not to say (i) Analysis of structural problems in dangerous, as regards the policy the fisheries sector (Norwegian of conservation of fishery pout, balance between fishing resources conducted by the capacities and fishing resources); Commission. In fact it tended to
JUDGMENT OF 25. 3. 1982 — CASE 98/81
show how little impact the British wish to perform this type of work as measure had in terms of fish he considered it "of minor catches for human consumption. importance". The director considered the paper as inappropriate and inconclusive. When the matter was brought to 3. Following up certain papers produced the notice of the director general outside the institution he asked for the work to be broken off but Mr Munk persisted in his own time and ended his memorandum (64 In view of his training Mr Munk had pages). been asked inter alios to follow up certain studies which the Structural Policy Division was conducting with the help of outside experts. This task (b) Balance between fishery capacities was facilitated by the fact that the and fishing resources: general plan of such studies had already been drawn up before Mr Munk's arrival; he was intended to A memorandum was drawn up on follow up, in particular for the Danish this subject by Mr Munk relating and German regions, the proper to a description of the different development of these studies and to methods of resolving the problem give his opinion on the results. of excess fishing-fleet capacities. Instead of conveying these various methods in ordinary language and drawing practical conclusions for Instead of smoothing out the the further work of the division, difficulties with the experts Mr Munk Mr Munk restricted himself to created fresh ones and the head of summarizing the methods by division was therefore required to using abstract mathematical intervene to rectify certain situations. formulae and without drawing any operational conclusions. The paper may meet scientific 4. Economic effects of aids on the requirements but does not answer sardine and anchovy industries the requirements of the service.
Whereas he had been requested to proceed to a first evaluation of the 2. Considerations of projects and order of magnitude of these economic investment programmes aids Mr Munk produced a totally disproportionate work comprising no less than four memoranda and a working paper of some 4C pages plus Mr Munk was recruited principally in 100 pages of appendices. order to consider and give an opinion on projects and investment pro- grammes submitted for appraisal to Directorate General XIV (especially Finally, as regards an appraisal of the in Danish). This work was satisfac- duties at present carried out by the torily done but after the beginning of applicant as a national specialist the his probationary period Mr Munk Commission supplies a copy of a informed his superiors that he did not document containing the views of the
MUNK v COMMISSION
head of the division to which the to make it still more effective and to applicant is assigned. According to the improve its scope. head of the division, whose views are Mr Munk's contribution to the confirmed by his director: development of the information facilities "Mr Munk, a Danish national specialist, of Directorate General VI has been has been given the task, on the basis of particularly effective." instructions of an A 5 official, of working out a model bringing up to date the data of the Network for the IV — O r a l p r o c e d u r e Collection of Accountancy Data on the Incomes and Business Operation of Agri- cultural Holdings in the Community. At the sitting on 17 December 1981 the applicant, ' represented by G. Vander- Mr Munk's knowledge of econometrics sanden of the Brussels Bar, and the and modelization have enabled him to Commission of the European Com- produce an operational model which has munities, represented by J. Pipkorn, a already been used for the preparation of member of its Legal Department, acting the Commission's memorandum on the as Agent, assisted by R. Andersen of the Mandate of 30 May 1980 and on the Brussels Bar, presented oral argument. preparation of proposals for common agricultural prices. At the present time The Advocate General delivered his Mr Munk is making technical opinion at the sitting on 11 February improvements to the model in question 1982.
Decision
, Bv application lodged at the C o u r t Registry on 24 April 1981, K. M u n k , a former probationary official of the Commission of the E u r o p e a n Communities, brought an action for the annulment of the Commission's decision of 1 Julv 1980 terminating his appointment at the expiration of the probationary- period, with all the consequences following upon such annulment, in particular as regards reinstatement in his career.
ï T h e applicant entered the Commission's service on 1 O c t o b e r 1979 as a probationary official with the Structural Policy Division of D i r e c t o r a t e General X I V (Fisheries), and was placed in G r a d e A 7. O n the expiration of the probationary period he was dismissed by decision of the appointing authority of 1 July 1980 on the basis of an unfavourable probation report.
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3 The appointing authority gave as its reasons for the dismissal the applicant's failure to adapt himself to the requirements of the service from the point of view both of his ability to carry' out his duties and of his efficiency and conduct, basing its decision on the principal considerations contained in the report at the conclusion of the probationary period.
4 In support of his application the applicant puts forward three submissions relating to alleged irregularities in the contested decision and consisting in failure to draw up the probation report within the prescribed period, in errors in the statement of the grounds on which the decision was based owing to inaccurate and over-rigid assessments in the repon and in a misuse of powers by reason of the fact that the repon was drawn up with the sole purpose of obtaining his dismissal and of preventing him from finding a post in another branch of the Commission. In this connection he alleges that the Commission further failed to comply with its duty to assist its officials and to observe the principle of good administration.
F a i l u r e to m e e t t h e t i m e - l i m i t i m p o s e d by A r t i c l e 34 of t h e Staff Regulations
5 In the words of Anicie 34 (2) of the Staff Regulations of Officials: "Not less than one month before the expiry of the probationary period, a repon shall be made on the ability of the probationer to perform the duties pertaining to his post and also on his efficiency and conduct in the service. This report shall be communicated to the person concerned, who shall have the right to submit his comments in writing."
6 The applicant claims in this respect that the time-limit of one month fixed by the above provision was not met in view of the fact that the repon on his probationary period was drawn up on 19 June 1980, that he received it on 21 June and returned it with his observations on 27 June and that the decision to dismiss him was adopted on 1 July with effect as from that date. In view of the shortness of the time available the applicant did not have sufficient time to present his obsenations and the appointing authority did not have the necessary time to appraise the assessments contained in the report or the remarks accompanying it in order that its decision on the termination of the probationary period might be adopted with full knowledge of the facts. The decision to dismiss him, arrived at in these circumstances, must, according to the applicant, be regarded as unlawful.
MUNK v COMMISSION
7 The Commission justifies the fact that the time-limits were not met by its desire to have consideration for the applicant's interests. In fact his superiors wished to allow him the opportunity to conclude a paper and to seek a different post with the Commission before the end of his probationary period, as he had been advised to do.
s As the Court has recognized, a delay in the drawing up of the probation repon constitutes an irregularity in view of the express requirements of the Staff Regulations which, regrettable as it may be, is still not of such a nature as to call in question the validity of the report. The objective of Article 34 of the Staff Regulations is to guarantee to the person concerned the right to submit any observations to the appointing authority and also to ensure that such observations shall be taken into consideration by the appointing authority.
9 It appears from the file that the time which elapsed between the drawing up of the repon and the decision to dismiss the applicant was in this case sufficient for the applicant to be able to make, his observations after the repon was communicated to him and also for the appointing authority to be enabled to assess the position, as it was bound to do. It should also be noted that the opinion of the applicant's superior, which gave an assessment which was substantially identical to that expressed in the probation repon, had been communicated to him by a memorandum of 20 May and that the applicant had replied by letter of 9 June 1980.
10 It appears from the foregoing that the applicant's submission relating to the infringement of Anicie 34 of the Staff Regulations cannot be accepted and that consequently it must be dismissed.
E r r o r s in the s t a t e m e n t of the g r o u n d s on w h i c h t h e d e c i s i o n t o dismiss the a p p l i c a n t was based
1 1 The applicant maintains that the probation repon which constitutes the essential basis for the contested decision contains inaccurate and over-rigid assessments and that it is not objective inasmuch as it is based on disputed aspects of his wo r k and does not mention any positive facets of the progress of his probationary period. He also claims that he worked during his probationary period without precise directions from his superiors and that the probation repon does not mention all his activities during the period in question.
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i2 The defendant rejects that line of argument explaining that the intellectual qualities and the scientific qualifications of the applicant are not disputed. However, the applicant does not have the qualities required tor the career of an official in an international administration facing specific problems. The defendant claims that the applicant treated the subjects entrusted to him in too theoretical a manner which was not in conformity with the requirements of the daily functioning of the service and outside the framework in which he was expected to carry out his work.
u In addition the applicant is charged with not having utilized the appropriate official channels for communication by making contact with other branches of the Commission without the permission of his superior and without passing communications through him.
M It must be stated that the applicant adduces no evidence in support of his allegations that he was obliged to work without directions and that the repon is inaccurate because it does not mention all his activities during the period in question. It should be noted moreover that the probation report itself must describe only the main activities of the person concerned during the probationary period. That description must be sufficiently precise to permit the appointing authority to adopt its decision and to state the reasons on which it is based.
is N o r is it possible to confirm that the report shows a lack of objectivity as it is clear from a perusal of the report that the applicant's ability was judged to be good and even very good in certain respects.
,6 With regard to the applicant's allegations as to the substance of the assessments made of him in the report, it should be recalled that it is for the competent administrative authority to use its power of assessment as regards the abilitv of the person concerned to perform the duties entrusted to him, subject to the review by the Court of the manner in which that has been done in the event of manifest error. In this case it does not appear from the file that the appointing authority has committed a manifest error in its assessment of Mr Munk's merits.
,7 The second submission put forward by the applicant must therefore also be dismissed.
MUNK v COMMISSION
T h e s u b m i s s i o n of m i s u s e of p o w e r s
is The applicant claims in this respect that his dismissal was brought about so as to prevent the successful conclusion of his efforts to obtain a transfer.
i9 This line of argument is based on a double misunderstanding and cannot be accepted. First it must be stated that it was the applicant's superiors themselves who at the proper time had advised him to consider the possibility of finding in other branches of the Commission another post which would correspond more exactly to his qualifications: Secondly it is not for the Court to assess the need for or expediency of a re-arrangement of posts within an institution, as the applicant's claim implies.
2: The applicant also claims that the Commission failed in its duty to assist its officials, as required by Article 24 of the Staff Regulations inasmuch as it did not support him in his efforts to obtain another assignment within the institution.
2 1 This submission cannot be accepted. As the Court recently stated in the judgment of 17 December 1981 (Bellardi-Ricci, Case 178/80, [1981] ECR 3187), the provisions of Article 24 of the Staff Regulations are concerned with the defence of officials against the acts of third parties and not against acts emanating from the institution itself, the review of which is governed by- other provisions of the Staff Regulations.
:: It follows from the foregoing considerations that the application must be dismissed as being unfounded.
Costs
:, Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.
'4 However, under Article 70 of the Rules of Procedure the institutions are to bear their own costs in proceedings brought by servants of the Communities.
OPINION OF MR REISCHL — CASE 98/81
On those grounds,
THE COURT (Second Chamber)
hereby:
1. Dismisses the application;
2. Orders the parties to bear their own costs.
Due Chloros Grévisse
Delivered in open court in Luxembourg on 25 March 1982.
The Registrar by order V. Joris O. Due Legal Secretary President of the Second Chamber
OPINION OF MR ADVOCATE GENERAL REISCHL DELIVEREDON 11 FEBRUARY 1982 '
Mr President, Some considerable time before the expiry Members of the Court, of his probationary period, which in accordance with Article 34 of the Staff The applicant in these proceedings Regulations terminated on 30 June 1980, entered the service of the Commission on he had already been reproached orally 1 October 1979 as a probationary official by his superiors concerning his conduct classified in Grade A 7. He was employed in Directorate General XIV and his work. The head of the division in (Fisheries), Directorate B (Markei and which he was employed also expressed Structure), Division II (Structural criticism of him in writing, in a note Policy). dated 20 May 1980. In that note it was
I — Translated from the German