C-206/81

JUDGMENT OF THE COURT (THIRD CHAMBER) 6 OCTOBER 1982 *

José Alvarez v European Parliament

(Officials — Dismissal)

Case 206/81

Officials — Recruitment — Probationary period — Dismissal — Procedure — Adversary nature — Decision to dismiss — Grounds based upon unfavourable observations not previously communicated to the official concerned — Illegality (StaffRegulations,Art. 34 (2))

A decision by the appointing authority to procedure laid down in Article 34 (2) of dismiss a probationary official at the end the Staff Regulations. Such a decision of the probationary period on the basis must be annulled because the grounds of observations supplied by various upon which it is based were established officials for the purpose of sup­ by a procedure which was not of an plementing the probation report, which, adversary nature, since the probationary although reflecting unfavourably on the official was precluded from giving his official concerned, were not previously comments on all the complaints made communicated to him, constitutes a against him which led to the decision to failure to observe the adversary dismiss him.

APPLICATION for the annulment of a probation report and of the sub­ sequent decision to dismiss the applicant,

THE COURT (Third Chamber)

composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges,

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

gives the following

JUDGMENT

Rule in consequence that the applicant's dismissal is null and void; II — Written procedure Refer the matter back to the European In accordance with Article 91 (4) of the Parliament; Staff Regulations of Officials of the If appropriate, fix ex aequo et bono the European Communities, which provides amount of damages to be awarded to the that an official may, after submitting a applicant and order the Parliament to complaint to the appointing authority pay the amount in question together with pursuant to Article 90 (2), immediately interest at the rate of 6 % per annum bring, an action before the Court of from the date on which the action was Justice, provided that such action is brought until settlement in full; accompanied by an application either for a stay of execution of the contested Order the defendant to pay all the costs measure or for the adoption of interim of the proceedings. measures, Mr Alvarez brought an action on 8 July 1981 against his probation report and the Parliament's decision of The defendant on the other hand claims 19 June 1981 to dismiss him. At the same that the Court should: time he lodged an application for a Dismiss the action as unfounded; suspension of the operation of the decision to dismiss him. The application Order the applicant to pay the costs. was dismissed by order of 20 July 1981 of the President of the Third Chamber. Costs were reserved. IV — Submissions and arguments The written procedure in this case of the parties followed the normal course, in view of the fact that, by virtue of Article 91 (4) The applicant takes the view that his of the Staff Regulations, the proceedings probation report does not adequau'K were suspended until the decision state the grounds on which it is based. rejecting the complaint had been taken. particularly with regard to his below - average assessment, that it contains Upon hearing the report of the Judge- criticism of his behaviour ι he Rapporteur and the views of the incorrectness of which could be provili Advocate General, the Court (Third by means of inquiries and that it un­ Chamber) decided to open the oral drawn up without any objective procedure without any preparatory inquiry. checking, especially as regards hi- qualifications and linguistic abilities. Hi- considers, indeed, that the whole staff report procedure and the resultant III — Conclusions of the parties dismissal are vitiated bv misuse oi powers inasmuch as the Parliament had The applicant claims that the Court been concerned not to ensure that the should: institution obtained the best possible stat! but rather to exclude a person with Declare the application admissible; trade-union commitments. In the

The applicant also reiterates his In any case, the Parliament vigorously arguments that the statement of reasons denies the applicant's charges that it was inadequate and that the defendant misused its powers in relation to the misused its powers. Turning to the extent applicant by reason of his trade-union of the damage sustained, the applicant activities. The Parliament views such estimates it as one million francs. claims as libellous and maintains that no justification for them is to be found in the file. In its rejoinder the Parliament states in the first place, with regard to the facts, that the memoranda concerning Mr Lastly, since the decision to dismiss the Alvarez's activities which were annexed applicant is the result of a probation to its defence were added to his file report which, although unfavourable, is before the decision to dismiss him had procedurally correct, there are no been taken. As for the allegedly defa­ grounds for annulling it. matory letter sent to the Economic and Social Committee, it merely related to admission to the European Parliament's In his reply the applicant points out that, buildings in Brussels and contained no after leaving the European Parliament, further observations. The Parliament he was employed for four months by the annexed a copy of the letter to its Economic and Social Committee and rejoinder. gave his new employers complete satis­ faction, notwithstanding a defamatory letter which was sent to the Committee As regards the legal aspects of the case, by the Parliament's security department. the Parliament contends that the

JUDGMENT OF 6. 10. 1982 — CASE 206/81

4 Thus, when adopting its decision to dismiss the applicant, the appointing authority relied as much upon the above-mentioned memoranda, two of which expressly purport to be supplementary to the probation report, as upon that report itself.

5 Although the appointing authority, by taking that course of action, was endeavouring to supplement its information and to establish the grounds on which its decision was based, the fact remains that by failing to communicate to the applicant all the documents underlying its decision, it failed to observe 7 the adversary procedure laid down in Article 34 (2) of the Staff Regulations.

6Sincethe applicant was precluded from giving his comments on all the complaints made about him, which led to the dismissal decision, the latter must be annulled because the grounds upon which it is based were established by a procedure which was not of an adversary nature. A further reason which makes annulment of the decision necessary is that, in this particular case, it was especially important to communicate the sup­ plementary memoranda to the applicant since the probation report itself was incomplete as regards his qualifications and the appraisal of his performance and moreover was unusually laconic.

7Theclaim for damages must be rejected since the applicant has been unable to demonstrate the existence of any damage which would not be remedied merely by annulment of the dismissal decision.

Request to re-open the oral procedure

11 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. As the European Parliament has failed in its submissions, it must be ordered to pay the costs.

On those grounds

THE COURT (Third Chamber)

hereby:

1. Annuls the decision of the appointing authority of the European Parliament of 26 June 1981 to dismiss Mr Alvarez;

2. Orders the European Parliament to pay the costs.