C-277/82

CHRYSSANTI PAPAGEORGOPOULOS, formerly a probationary official of the Economic and Social Committee, residing at 215 E Venizelou, Iliopoulis, Athens, represented by Victor Biel of the Luxembourg Bar, 18 A Rue des Glacis, and with an address for service at his Chambers,

applicant,

v

ECONOMIC AND SOCIAL COMMITTEE, represented by Marius Simond, acting as Agent, assisted by Yvette Hamilius of the Luxembourg Bar, 11 Boulevard Royal, with an address for service at her Chambers,

defendant,

APPLICATION principally for the annulment of the applicant's report at the end of her probationary period and of her dismissal, and for damages, — Language of the Case: French.

Facts

The facts of the case, the course of On 30 November 1981 the report at the the procedure and the submissions, end of her probationary period was arguments and conclusions of the parties communicated to the applicant. The may be summarized as follows : report mentioned as "insufficient" use of skills in carrying out duties, ability to express herself in writing in her mother tongue (Greek), versatility, and quality and execution of work, and as "very I — Facts and written procedure good" understanding of, and ability to express herself orally in, French and English. In the column headed " Com­ ments" reference was made to the general assessment which ran as follows : As a result of her success in an open competition for the recruitment of typists held in December 1980, Mrs Papageor- gopoulos was engaged on 1 July 1981 by "Although Mrs Papageorgopoulos' pro­ the Economic and Social Committee as a fessional and technical skills may be probationary official (having been a considered to be satisfactory, there are member of the temporary staff during serious deficiencies in her knowledge of the month of June). her mother tongue (Greek) as a result of which her work is definitely inadequate as regards both quality and performance. The applicant came from Canada where Moreover, the observations which were she had lived since she was 14 and had put to her on that subject revealed that worked for eight years, latterly for the she had the greatest difficulty in Ministry of Defence. In addition to her accepting the authority of her superiors, knowledge of her mother tongue, Greek, in working as a member of a team and she apparently had very good knowledge thus in adapting herself to the working of English and French. methods of the institution."

The report concluded that the applicant The written procedure follows the was not capable of carrying out the normal course. duties required by her post, having regard to her ability, her efficiency and her conduct in the service. On hearing the report of the Judge Rapporteur and the views of the On 4 December 1981 the applicant Advocate General, the Court (First intimated that she did not accept the Chamber) decided to hear certain report because she felt that it had been witnesses. The hearing of those written in a subjective manner. witnesses, Mr Farenzena and Mrs Pallis, took place on 21 April 1983. During the The report was signed by Mr Vermeylen, hearing Mrs Pallis gave evidence on the Head of Division, by Mr Farenzena, applicant's performance of her duties, head of the typing pool, by Mrs de her knowledge of written Greek and the Oliveira, acting head of the pool, who quality of her typing. In addition to had replaced Mr Farenzena during the the questions put to Mrs Pallis, Mr latter's sick leave, and by Mrs Pallis, Farenzena was asked to give information head of the Greek pool. In her obser­ on any complaints made by the vations on the report, the applicant translation department relating to the included a letter written to Mr applicant's typing. Farenzena by Mrs Amarantidou on the subject of the latter's assessments of various members of the Greek pool. Mrs Amarantidou had been acting head of II — Conclusions of the parties the Greek pool prior to Mrs Pallis until 17 August 1981. The applicant claims that the Court Following the report at the end of her should: probationary period, the applicant was dismissed by a decision of 21 December (a) Declare her application admissible; 1981 which took effect on 31 December 1981. (b) Declare that the application is well On 18 March 1982 the applicant founded and therefore that the submitted to the appointing authority a report made on the expiry of her complaint asking for the revocation. of probationary period recommending the decision to dismiss her; the complaint her dismissal must be annulled; was dismissed by letter from the Secretary General of the Economic and (c) Consequently, declare that the Social Committee on 16 July 1982. dismissal is unjustified and must be annulled; After her dismissal the applicant obtained temporary employment as a typist (for one year) in Athens at the United (d) Declare in consequence that the Nations (in the so-called "Environment applicant is entitled to her salary and programme") from 1 October 1982. She emoluments from 1 January 1982 also succeeded in the written tests for until payment is made by the Greek typists at the European Parliament defendant, plus interest at the rate of for whom the oral test was to be held on 10% per annum until the time of 10 December 1982. such payment;

interest at the rate of 10% per and the applicant and more particularly annum by way of compensation for on the question of who had sufficient non-material damage for the period knowledge of the matter to be able to of her unemployment; assess the applicant's ability in written Greek. (f) Allow the applicant to produce witnesses to show that the disputed report at the end of her probationary Ill — Submissions and argu­ period constituted a misuse of ments of the parties powers; and The applicant submitted, first, that the (g) Order the defendant to pay the report at the end of the probationary costs ; period contained an inadequate state­ ment of grounds inasmuch as the Alternatively, should there be an inquiry, assessments of "insufficient" were not reserve costs. accompanied by any explanation; that amounted to absence of reasons, on The defendant contends that the Court which ground the report and the should: consequent dismissal must be completely and entirely annulled. (a) Principally, dismiss the application as unfounded; According to the applicant, there was misuse of powers in that Mrs Pallis, the (b) Order the applicant to pay the costs; principal reporting officer, was able to rid herself of a competitor since they (c) In the alternative, in the event that were both candidates for the post of the application is declared to be well head of the Greek pool. founded, reject the applicant's claim for payment of salary and emolu­ The report lacked objectivity in particu­ ments from 1 January 1982 until lar in that it contained a discrepancy payment by the Economic and Social between the assessment of the applicant's Committee; capacity to work in a team, which was judged to be satisfactory, and her (d) Reject likewise the applicant's claim "greatest difficulty ... in working as part of a team" according to the general for compensation for non-material assessment in the report. There was damage; therefore a contradiction in terms, which must be sufficient to dispose of the (e) In that case rule on costs in whole matter. accordance with the law; The applicant put forward two other (f) Reserve to the Economic and Social submissions based on breach of the Committee all other rights, claims principle of legitimate expectation and of and actions. the duty to provide assistance.

The applicant added that she did not Grade B 5 in the Chambers of the Greek claim compensation for material damage judge at the Court of Justice. In the since it appeared to her certain that the course of her duties she had observed the defendant would have to pay her salary applicant's work during the greater part from her dismissal until the date of of her period of probation. Finally, at no judgment. Since 'the wrongful dismissal time were the applicant and Mrs Pallis caused her serious non-material damage, possible competitors for the same post, however, she insisted upon receiving an given, in particular, that Mrs Pallis wąs award under that heading, provisionally over the age-limit to take part in the estimated at BFR 10 000 for each month competition for a principal secretary during which she was unlawfully (CES C/28/80) which was designed to unemployed. select the head of the Greek pool. Moreover, Mrs Papageorgopoulos had failed that competition as well as the secretarial tests in the same combined competition and Mrs Pallis, in her capacity as secretary, had followed a In reality, the applicant's central completely different career from that of complaint was precisely the fact that the the applicant as a typist. only reporting officer for her report at the end of the probationary period who knew Greek was Mrs Pallis, who was appointed head of the Greek pool in September 1981. The other reporting officers, Mr Farenzena and Mrs de The fact that certain details had not been Oliveira, had no knowledge of Greek, a entered in the periodical report was fact which sufficed to render the report irrelevant, since it was a report relating void. On that point the applicant added to a probationary typist whose tasks that Mrs Amarantidou, who was acting could not differ from the duties and head of the Greek pool until 17 August powers attaching to her post. If, 1981, wrote of her in a letter to Mr moreover, the disputed report did not Farenzena: "excellent professional mo­ contain observations from the various tivation, almost perfect typist, makes an hierarchical superiors, it was because the effort to develop and advance, a calm, latter by adding their signatures were methodical and stable character, simply endorsing the entirety of the indispensable". report, to the drafting of which they had in any case contributed.

knowledge: translators who were con­ detailed analysis for probationary sulted confirmed her inadequacies in that officials of all the facts relevant to a final regard. Many remarks had been made to assessment of their ability to carry out the applicant by her hierarchical the duties required by their posts and to superiors concerning the inadequacies of judge their efficiency and conduct in the her work and the errors which appeared service. The disputed report, which in written texts. included an extensive general assessment, was communicated to the applicant, who could submit — and in fact did — her observations in writing. On that point, As to the last mention of "insufficient", the Economic and Social Committee regarding the applicant's versatility, the stated that the applicant based her difference between that and the "satis­ comments essentially on the letter from factory" mention regarding her ability to Mrs Amarantidou to Mr Farenzena, a work in a team derived from the fact letter which was of a purely one-sided that whilst the applicant behaved nature. With regard to the letter of correctly towards her colleagues in thé dismissal, that contained an exhaustive Greek pool, she had difficulty in statement of the reasons on which it was adapting herself to the work which was based. given to her and in particular in accepting the authority of her superiors. The applicant had combined an application for annulment with an The defendant considered that a formal application for amendment, but the defect in a periodical report did not waiver of compensation for material require the annulment of the report since damage was not consistent with the administrative law made a distinction claim for salary from 1 January 1982 to between essential and subsidiary pro­ the date of judgment. In that respect, the cedural requirements and only in­ defendant pointed out that the applicant fringements of the former could entail had received two months' salary follow­ annulment of the disputed measure. ing her dismissal and that she had found new employment. It was therefore for her, having waived her claim for compensation for material damage, to Misuse of powers only existed, it was prove that she had in fact suffered such submitted, when an administrative damage as well as non-material damage. authority performed an act within its powers but for a purpose other than that for which the act might lawfully be performed: in that respect the defendant found it difficult to see where and by what decision it could have been guilty of any son of misuse of power, the IV — Oral procedure presence of which must not be presumed and the burden of proof of which lay with the applicant. The parties presented oral argument at the sitting on 19 May 1983. As for illegality relating to the grounds for the report at the end of the probationary period and the decision of The Advocate General delivered his dismissal, the defendant has provided a opinion at the sitting on 14 July 1983.

Moreover, the observations which were put to her on that subject revealed that she had the greatest difficulty in accepting the authority of her superiors, in working as a member of a team and thus in adapting herself to the working methods of the institution."

4 The report concluded with a negative assessment regarding the ability of the applicant to carry out her duties, having regard to her ability, her efficiency and her conduct in the service.

JUDGMENT OF 29. 9. 1983 — CASE 277/82

5 The report was drawn up by Mr Vermeylen, Head of Division, and was signed by Mr Farenzena, head of the typing pool, Mrs de Oliveira, acting head of the pool, and Mrs Pallis, head of the Greek pool.

6 By a memorandum of 4 December 1981 the applicant disputed the report.

7 By decision of the Secretary General of the Economic and Social Committee of 21 December 1981, notified to the applicant on 22 December, she was dismissed with effect from 31 December 1981.

12 he e o t as omp led h the Head of T r p r w c i y Division and countersigned by we head of the typing pool, by Mrs de Oliveira, who was acting head of pool during the absence of her superior, and by the person in charge of the Greek pool, indicating their agreement with the assessment contained in the repon. There is a sufficient statement of the grounds for the negative assessments in the general assessment, to which reference is made. The report was, therefore, properly drawn up and reasoned.

is With regard to misuse of powers the applicant has not offered the slightest evidence in support of her allegation and it must therefore be set aside.

M As to the applicant's other complaints, she has merely set them out in the application whilst reserving the right to elaborate upon them in her reply if necessary. No further clarification or elaboration of those complaints was presented during the later stages of the procedure. It is therefore not necessary to examine them.

Costs

is Pursuant to Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. However, Article 70 of the Rules of Procedure provides that, in proceedings brought by officials of the Communities, the institutions shall bear their own costs.

OPINION OF MR MANCINI — CASE 277/82

Delivered in open court in Luxembourg on 29 September 1983.

A. O'Keeffe J. A. Pompe Deputy Registrar President of the First Chamber

OPINION OF MR ADVOCATE GENERAL MANCINI DELIVERED ON 14 JULY 1983 »

Mr President, which she was formerly employed, Members of the Court, directed towards obtaining the annul­ ment of the report made at the expiry of her probationary period and of her 1. The application of 15 October 1982 dismissal on the basis of that report, as by which this action was brought well as payment of her remuneration comprises a series of allegations by from the time when her service ended Chryssanti Papageorgopoulos against the and of a sum in compensation for non- Economic and Social Committee, by material damage.

1 — Translated from the Italian.