C-223/82

JUDGMENT OF THE COURT (FIRST CHAMBER) 29 SEPTEMBER 1983 '

Hilde de Bruyn v European Parliament

(Probationary official — Dismissal)

Case 223/82

Officials — Recruitment — Probationary period — Dismissal (Staff Regulations of Officials, Art. 34 (2))

In Case 223/82

1 — Language of the Case: French.

JUDGMENT OF 29. 9. 1983 — CASE 223/82

THE COURT (First Chamber )

composed of: A. O'Keeffe , President of Chamber , Lord Mackenzie Stuart and T . Koopmans , Judges ,

Advocate General : Sir Gordon Slynn Registrar : P . Heim

gives the following

10 days. Miss de Bruyn returned to work almost upset the smooth running of the on 28 April 1981. service.

On 2 June 1981 a memorandum signed Lack of initiative and dedication to her by the applicant's head of division and work: she has not managed to acquire an two revisers was sent to the Director of adequate understanding of how the Translation and Terminology and institutions work or of the most communicated to Miss de Bruyn. It elementary concepts and terms used in stated that she should take more care to the Parliament; in addition she is slow in observe the rules of the administration her work. and that she should get to know the terminology more quickly, but that her Failure to work hard enough and poor knowledge of modern Greek was good. punctuality. It was also stated that a well-informed assessment of the applicant could not be given because of her long absence on Lack of order in her work." grounds of illness. The report recommended that the applicant be dismissed. On 7 September 1981 Miss de Bruyn received a note from her Head of Division informing her that the results of On 11 December 1981 Miss de Bruyn her probationary period were, at that submitted her observations on that stage, unsatisfactory, and that conse­ report, and requested an extension of her quently her probationary report might be probationary period on the ground that unfavourable. Following that note, the her absences because of sickness had applicant was seen by her Head of prevented her from being able to Division. demonstrate her professional abilities to the full.

"(a) Declare the application admissible; Ill — Submissions and argu­ (b) Declare it well founded and, ments of the parties accordingly, declare that the report made at the expiry of Miss de The applicant's first submission is based Bruyn's probationary period, which on the obligation to respect good faith: recommended her dismissal, should in her view the assessor failed to appraise be annulled; objectively the factors he is required to consider under Article 34 of the Staff (c) Hence, declare the dismissal null Regulations. A statement of grounds and void; cannot refer to such personal factors as "lack of order", "nonchalance", and (d) Declare that the applicant is "thoughtlessness". As regards the lack of therefore entitled to her salary, "general culture", that requires proof in emoluments and allowances from the case of someone who is a graduate in the date of her dismissal (28 linguistics. A second submission based on February 1982) until settlement by the failure to state separate grounds in the defendant, with interest at 10% respect of the different items is joined to until final payment; the first. (e) Order the defendant to pay the It is claimed that the duty of assistance, applicant, by way of non-material or "Fürsorgepflicht", was not respected damages, either BFR 10 000 per inasmuch as the only person who gave month of unemployment from the assistance to the applicant throughout date of this application, with her probationary period, Mrs Kroon, a interest at 10%, or a lump sum of reviser, was not consulted and inasmuch BFR 180 000 with interest at 10% as her superiors did not give help to the from the date of this application applicant. until final payment; Further it is alleged that the probationary (f) Permit the applicant to call wit­ report was established prematurely, that nesses to prove that the contested is to say two months and nine days probationary report amounts to a before the end of the probationary misuse of powers and that its period. unavowed objective was to vacate the applicant's post; The applicant claims that the assessor lacked the proper authority inasmuch as (g) Order the defendant to pay all the it was for the relevant director to costs, or, if an inquiry is held, establish the report. On 21 September reserve the costs." 1981 there was no Director of the

Translation and Terminology Direc­ post to Mr Vermeulen, a successful torate but that in no way justifies a candidate in a later competition. delegation of authority in respect of probationary reports to Mr Van Mulders, the Head of Division. In addition to the annulment of the report and of the decision of dismissal, the applicant requests that her salary for the "months of unemployment" be paid to her with interest at 10% as from each Under the heading breach of the date on which her salary fell due. The principle of the protection of legitimate report caused her considerable non- expectation, the applicant points out that material harm. It was the source of she complied with the request that she continual and exhausting anxiety and it get to know the terminology more caused her to incur costs in seeking new quickly, but that she did not, however, employment. realize the threat which that remark posed to her future. The three signatories to the memorandum of 2 June 1981 testified to her good The Parliament contends in its defence knowledge of modern Greek, but also that the submission that the probationary noted that her lengthy absence on report was premature is not supported by grounds of sickness prevented them from the facts. The second part of the report, giving a well-informed assessment of her. "Assessment", was filled in and dated on That provisional memorandum was 28 October 1981, one month before the drawn up when she had been working end of the applicant's probationary for only 53 days. In the course of her period. Only the administrative part was interview with the Head of Division, completed on 21 September 1981. it was never suggested that her Moreover, the Staff Regulations pre­ probationary report might be wholly scribe only the latest date; they contain unfavourable, yet 12 days later the report no provision concerning the earliest date recommending her dismissal was drawn at which the report may be established. up. Throughout the entire period of her To the best of the defendant's probation the applicant never received knowledge, the Court has never had to any written or oral observation which consider a complaint based on the might have led her to believe that such a allegation that a report is premature and decision was imminent. there is, moreover, no support for such an objection in the relevant provisions.

applicant's work. In addition, it was if success in a competition or tests may signed by the Director General. Those demonstrate the theoretical abilities of a are the facts. Moreover, in the candidate, only the probationary period defendant's opinion it should be pointed can establish his practical abilities. out that the Staff Regulations do not establish who has authority to draw up and sign, as assessor, the probationary The applicant 's attitude may therefore report referred to in Article 34 (2) of the be summarized as follows: she objects to

There quently attacks the report. Such detailed fore, the report in question cannot be argument as to the substance of criti challenged on procedural grounds. cisms which are contained in a probation Essentially, the action calls into question ary report is entirely out of place in the merits of the assessor's observations proceedings before the Court. with a view to having those observations reviewed not only by the appointing authority but also by the Court. However, it is well established that the The submissions relating to breach of the latter merely ascertains the legality of the principle of good faith and the failure to contested report as regards both state separate grounds in respect of the procedure, with particular emphasis on different items amount to the same the rights of the defence, and the argument. As regards the duty to assist, statement of grounds. In reality, the the Parliament replies that in addition to applicant disputes certain charges which the purely oral warnings the applicant have been levelled at her and attempts to received on 2 June 1981, when three refute them. For example in respect of months of her probationary period had the comment "unsatisfactory" under the elapsed, a copy of a written note in heading "knowledge necessary for which her superior and two other work", she maintains that she achieved revisers, including Mrs Kroon, drew her good results in a competition and that to attention to points in respect of which say now that she lacks the knowledge she was advised to make a particular necessary for the post amounts to a effort. Moreover, her revised translations repudiation of the decision of the were returned to her and should have

officials. Moreover, it is well known that protection of legitimate expectation. In

reality, it is the Parliament's expectations therefore doomed to be dismissed. It is of the applicant which were deceived. not disputed that the latter was selected because of her knowledge of Greek, although knowledge of that language was not a requirement in the competition As regards misuse of powers, the Par­ in which she took part. For Mr Ver- liament maintains that the post occupied meulen's post, modern Greek was a by Miss de Bruyn and that to which Mr condition sine qua non. It is therefore Vermeulen was appointed are different. clear that after the second competition, They were filled following two different in which Mr Vermeulen participated, the competitions. The applicant participated applicant was no longer needed in her in Competition No PE / 58 / LA for which division. the maximum age was thirty-five and the duties to be fulfilled were defined as follows: "Translation into Dutch from at least two other official languages" and In its rejoinder, the Parliament points out so on. In the second competition, No that the applicant was not recruited PE / 67 / LA , in which Mr Vermeulen specially for her knowledge of Greek, participated, the duties were described as since according to the notice of follows: "Translation into Dutch from competition knowledge of Greek was modern Greek and one of the official merely an element to be taken into languages . . ." The maximum age was consideration. In April 1981, at the raised to forty in view of the difficulty of beginning of the applicant's probationary finding candidates with a knowledge of period, there were four vacant posts in Greek. the Dutch Translation Division, and at the end of her probationary period three of those posts were still vacant. Those last three posts were not filled until 1982 The Parliament maintains that the claim following Competition No PE / 69 / LA , for damages is inadmissible inasmuch as the results of which were established in the action before the Court concerns an March 1982. The applicant's theory that application for annulment. Even if such a she had to be dismissed in order to offer claim was admissible it is ill founded, a post to Mr Vermeulen cannot be since the applicant obtains full satis­ accepted in the light of those facts and faction if the Court finds in her favour dates. and she has sustained no further damage. To hold otherwise would be to prevent the institution from acting in accordance with Article 34 (2) of the Staff Regu­ lations.

3 An unfavourable probationary report dated 28 October 1981 was transmitted to the applicant, who signed it on 4 November 1981. At the same time she referred to comments which she intended to submit at a later date. In those comments, dated 11 December 1981, the applicant refuted the complaints which were directed against her and requested an extension of her probationary period on the ground that she had been absent (on sick leave) and had thus been unable to demonstrate her professional abilities to the full.

4 The Secretary-General of the Parliament informed the applicant on 9 February 1982 by registered letter of his decision to dismiss her with effect from 28 February 1982 as a result of her unfavourable probationary report recommending dismissal.

s The applicant's representative submitted a complaint against the probationary report and the applicant's resulting dismissal, a complaint which was supplemented by letter of 26 May 1982.

DE BRUYN v PARLIAMENT

6 The complaint was dismissed by letter of 16 July 1982 from the Secretary- General of the Parliament.

7 In the probationary report the comment "unsatisfactory" was entered under the following seven headings: (a) Knowledge necessary for the work, (b) judgment and ability to adapt, (c) initiative, (d) ability to organize, (e) sense of responsibility and devotion to work, (f) quality of work and (g) punctuality. That assessment was supported by a memorandum drawn up by Mr Van Mulders, Head of the Dutch Translation Division, and signed by Mr Haarsma, a linguistic adviser, and Mr Van Heel, a reviser, to record their agreement. The memorandum included the following passage:

s The report, which was dated 28 October 1981, was signed by Mr Palmer, for the Director-General.

9 The applicant raises various objections in respect of the report. It was premature, inasmuch as it was drawn up on 21 September 1981, that is to say more than two months before the end of the probationary period. It stated, wrongly, that the applicant had completed two years of higher education, instead of the four years which she had actually completed. The statement of grounds for the assessment of various aspects of her work as "unsatis­ factory"- did'not sufficiently clarify the way in which the applicant failed to fulfil her duties. There was a contradiction inasmuch as under the heading "efficiency", her "speed of execution" was stated to be satisfactory, whilst in

JUDGMENT OF 29. 9. 1983 — CASE 223/82

the explanatory note the complaint was made that the applicant was "slow in her work". Mrs Kroon, a reviser, was not consulted; and the report was not signed by the director with authority to do so.

io The applicant claims in addition that the defendant failed to fulfil its duty to assist her and frustrated the legitimate expectation which the applicant was entitled to have of the administration. Throughout the entire probationary period she received no written or oral observation which could have led her to believe that a decision dismissing her was imminent.

n Finally, the applicant claims that the defendant took the decision to dismiss her in order to facilitate the recruitment of another specified translator as an official. There was therefore a misuse of powers.

i7 As far as the alleged failure to consult Mrs Kroon is concerned, it is enough to observe that systematic consultation of all the revisers is not obligatory and that it was for the Head of Division to decide which revisers were in the best position to assess the applicant's work during her probationary period.

is As regards the complaint concerning the authority of Mr Van Mulders to sign the report, it seems that the internal rules of the Parliament do not specify which official must draw up the report. It appears that the established practice of the Parliament is for the report to be prepared by the director of the relevant directorate. At the material time there was no Director of the Translation and Terminology Directorate in the Parliament, and consequently the report was prepared by the Head of Division to which the applicant belonged. It was signed by the Director-General and recommended that the official be dismissed. That objection must therefore be disregarded.

i9 As to the objection concerning the defendant's duty to assist and the alleged breach of the principle of the protection of legitimate expectation, it appears from the file that the applicant was warned on 2 June 1981 that her work was not satisfactory, and later, on 7 September 1981, that her progress was inadequate and that an unfavourable probationary report which would lead to her dismissal might be drawn up. Consequently, the institution cannot be accused of having failed to fulfil its duty in that respect.

20 As regards the alleged misuse of powers, finally, the applicant has failed to produce the slightest evidence in support of that submission. The person

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

2. Orders each party to bear its own costs.

O'Keeffe Mackenzie Stuart Koopmanns

Delivered in open court in Luxembourg on 29 September 1983.