Súdny dvor Európskej únie·Rozsudok·30.5.1984

C-346/82

ECLI:EU:C:1984:195

Súd: Súdny dvor Európskej únie
IČS: 61982CJ0346
Zdroj: eur-lex.europa.eu ↗

JUDGMENT OF THE COURT (FIRST CHAMBER) 30 MAY 1984 1

Pierre Favre v Commission of the European Communities

(Temporary employee — Dismissal)

Case 346/82

Officials — Assignment — Interest of the sewice — Principle governing administrative action — Scope (Staff Regulations of Officials, Art. 7)

Article 7 of the Staff Regulations, principle which constitutes one of the according to which the competent guiding rules of administrative action authority must, as regards assignment by whose application cannot be limited appointment or transfer, be guided solely solely to the agreement of officials. by the interest of the service, expresses a

In Case 346/82

PIERRE FAVRE, a former temporary employee of the Commission of the European Communities, residing at 3 Rue Maurice-Banes, Hettange- Grande, France, assisted and represented by Victor Biel of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Biel, 18 A Rue des Glacis,

applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by John Forman, a member of its Legal Department, acting as Agent, assisted by Daniel Jacob of the Brussels Bar, with an address for service in Luxembourg at the office of Oreste Montako, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg,

defendant,

1 — Language of the Case: French.

JUDGMENT OF 30. 5. 1984 — CASE 346/82

APPLICATION primarily for the annulment of the applicant's dismissal of 4 November 1982,

THE COURT (First Chamber )

composed of: T . Koopmans , President of Chamber , A. O'Keeffe and G. Bosco , Judges ,

Advocate General : Sir Gordon Slynn Registrar : P . Heim

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of 1981 by Mr Bommelle and Mr Van der the procedure and the conclusions, sub Stijl, his immediate superiors. The ap missions and arguments of the parties plicant was asked to submit a report by may be summarized as follows: the following December containing his conclusions and proposals on the various matters mentioned in the said memo randum. I — Facts and written procedure The report was not submitted within the required period and the applicant's head Mr Favre was engaged on 16 September of division, Mr Bommelle, sent him a 1981 as a temporary employee in Grade reminder on 27 January 1982. A 6, for an indefinite period "linked to the duration of the Nuclear Inspection On 29 January 1982, the applicant sent a Programme" and assigned to Directorate memorandum of a little more than one General XVIII (Energy) — Euratom page to Mr Van der Stijl, this being the Safeguards Directorate. The applicant result of his work during the preceding was given a number of tasks set out in a months. On the same day, he produced memorandum sent to him on 27 October a second memorandum, containing a

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summary of a letter sent to the Direc The first and only oral reminder, before torate General for Energy by the British 23 April 1982, had been given in January Department of Energy. On 10 March 1982 and similarly the one and only 1982, he submitted a memorandum to written reminder was given a few days his superiors summarizing a course he later. Furthermore, the applicant in had attended. dicated his total disagreement with the criticisms made of him with regard to the quality and the speed of his work, his initiative and his sense of responsibility. A draft report at the expiry of the He complained that he had been obliged probationary period, dated 5 April, was to work alone without the help of his sent to Mr Favre on 23 April 1982 for superiors, and that the file which he had his observations. been given was a sensitive one, on which there had been very little progress since the end of 1973. Moreover, Mr Favre That report cast doubt on the applicant's was not cleared to see classified material sense of initiative and responsibility and until 15 March 1982 and thus, to have also on his efficiency. It was stated that literally followed the work plan given to Mr Favre had shown little initiative him on 27 October 1981 would have during the probationary period, that involved infringing the rules on the regard had been had to his grade (A 6), protection of such material. above the basic grade in which he had been engaged, his sense of responsibility was unsatisfactory and the speed with which he did his work left much to be By a memorandum of 24 August 1982, desired. Furthermore, it was pointed out the applicant's head of division informed that because of his minimal output, the Mr Gmelin, director of Euratom Safe quality of his work could not be judged. guards Directorate, that, in spite of his The general observations indicated that insistence, Mr Favre had not submitted Mr Favre, who had been asked to study the report which he had been asked to the Windscale reprocessing plant in the submit by July before his departure on United Kingdom, had produced a two- leave. page synthesis of that file, which must be regarded as totally insufficient. It also appeared that the applicant had been reminded orally on several occasions In the same memorandum, it was stated and twice in writing to finish the work that during the summer of 1982, the he had been given, and the official applicant had been on sick leave from 14 responsible for training had drawn the to 31 July and from 1 to 15 August and attention of Mr Favre's superiors to the that he had therefore not done the work manifest lack of interest which Mr Favre which he had been directed to do in a had shown in the courses which he had programme sent to him on 2 July 1982. attended.

On 30 July 1982, the applicant was In reply to that report, the applicant informed, by a letter from the Director drafted a memorandum on 9 June 1982 General of Personnel and Administration in which he stated that it was incorrect that the latter had proposed that the to say that he had been reminded orally appointing authority terminate his con several times and twice in writing to tract with effect from 2 November 1982. finish the work which he had been given. That letter was sent to Mr Favre with a

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view to making it easier for him to find II — Conclusions , of the parties other employment.

By a memorandum of 19 August 1982 In his application, the applicant claims addressed to Mr Burke, the member that the Court should: of the Commission responsible for personnel matters, the Director General "Declare the application admissible with of Personnel and Administration pro regard to the time-limit and with regard posed, on the basis of the opinion of the to its form; Directorate General for Energy, that the applicant be dismissed under the Declare it well founded as regards the provisions of Article 47 (2) (a) of the substance and therefore: Conditions of Employment of Other Servants. Annul the dismissal of 4 November 1982;

The Luxembourg Staff Committee, to Remit the case to the appointing auth whom the applicant had referred his ority with a view to finding another case, approached Mr Burke on 17 solution and, in particular, with a view to September 1982 and asked that the a transfer to duties corresponding to the applicant be given a second chance. On applicant's grade and scientific training; 4 November 1982, Mr Burke decided to terminate the applicant's contract by notice beginning on 10 November and Order the Commission to pay the costs ending on 31 December 1982. in their entirety.

Mr Favre was informed of that decision In the alternative : by a letter of 4 November 1982, and he submitted a complaint against it which Permit the applicant to prove by the was registered on 26 November 1982 evidence of witnesses that the dismissal and rejected by a letter from Mr Burke was not in the interests of the service but of 3 February 1983. was an abuse of powers or alternatively a misuse of powers." The applicant brought these proceedings on 29 December 1982 and also applied In its defence, the Commission contends for an interim order "to suspend the that the Court should: applicant's dismissal pending a decision on the substance of the case". Dismiss the application as unfounded; That application was dismissed by order of the President of the First Chamber of Order the applicant to pay the costs. the Court dated 7 February 1983. In his reply, the applicant claims that the The written procedure then followed the Court should : normal course. "In the alternative, hear several wit Upon hearing the report of the Judge- nesses, if necessary, to prove that his Rapporteur and the views of the application is well founded; if necessary, Advocate General, the Court (First summon as witnesses capable of Chamber) decided to open the oral providing information for the Court, Mr procedure without any preparatory in Bommelle and Mr Van der Stijl, Mr quiry. Favre's immediate superiors;

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Furthermore, hear the following wit The applicant's second submission is nesses, who represented Mr Favre as based on Article 7 of the Staff Regu members or representatives of the Staff lations which provides that only the Committee on 14 September 1982, for interest of the service can justify a the purpose of giving Mr Burke the dismissal. The recruitment of nuclear documents which were missing from the scientists would become impossible if file and those which had not been such highly qualified specialists were communicated to him . . ." Here follow offered no security of employment. the names.

The third submission alleges misuse of powers. The appointing authority did not III — Submissions and argu feel able to dismiss the applicant on the ments of the parties basis of the first notice of dismissal. As regards the second notice of dismissal, it is peremptory and contains no trace of the grounds on which it is based. The 1. In his application, the applicant con applicant claims "that Mr Gmelin and tends in the first place that since he had perhaps also Mr Director General been engaged for the duration of the Audland felt frustrated and diminished in Nuclear Inspection Programme, he was, their authority by the resistence of an during that period, assimilated to an employee who, on two occasions, had official within the meaning of the Staff 'won' ". Under those conditions, the Regulations. On the other hand, his young "troublemaker" had to be got rid contract would have expired immediately of, "on the proposal of the Director and even without notice when that General for Energy", and without any programme ended. In that sense, the case further grounds being indicated. is not comparable to most of those dealing with other duties for an indefinite period (Case 25/80 De Briey The administration has not proved, [1981] ECR 637). specifically and in detail, the objective and reasonable grounds militating in favour of the termination of the The applicant bases his first argument on appointment. It should have sought a the absence of grounds for the decision post in which Mr Favre could have or, at least, the insufficient nature continued to serve, for example, by thereof. It would not appear that the assigning him to Ispra. However, instead statements made in the report at the end of seeking a reasonable solution, those in of the applicant's probationary period charge sacrificed a career which had can be used against him. Moreover, no been particularly brilliant in the past. reference is made to them in the decision to dismiss him. The quality of the applicant's work could not be proved, The applicant repeats what he had since he never had a chance to present already put forward in the complaint specific results, the file which he was through official channels, that is to say, given being too complicated to be dealt that his dismissal constitutes an with in so short a time. On the other economically and socially irregular act. hand, the applicant repeats that the His dismissal is in effect a wrongful period of his employment was un dismissal inasmuch as there is no good conditionally linked to the duration of reason for it. It is for the appointing the Nuclear Inspection Programme. authority to prove that the applicant's

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efficiency was not up to the standard of sufficient number of posts for officials. what could be expected of him. He states On the other hand, the Commission has that if his efficiency was not what it obtained from the Council, for a period should have been, that was for purely of three years, a number of temporary administrative reasons. posts to which several successful cand idates from the competition in which Mr Favre took part have been recruited. Those posts have been approved only for a limited period, and it was thus necessary to indicate in the contracts that their duration could not exceed that for 2. In its defence, the Commission which they had been approved. Thus, the contends in the first place, as regards the applicant clearly has a contract for an facts, that the applicant was recruited as indefinite period, which might be a nuclear inspector, and that his contract terminated by notice and without any of temporary employment, based on need to give reasons for the decision to Article 2 (a) of the Conditions of dismiss him. Employment of Other Servants, could be terminated by means of the notice provided for in Article 47 (2) of the said conditions. Furthermore, it is incorrect to contend that the question of the Windscale reprocessing plant was par ticularly controversial or of a political The statement of· facts indicates that on nature. The applicant, who was assigned various occasions the applicant was told to the Euratom Safeguards Directorate, of the reasons for which his work was was given an exclusively technical study considered unsatisfactory. which he should have been able to carry out in view of the nature of his experience.

As regards the second submission, it . appears from the documents before the As regards the first submission, the Court that the applicant's superiors Commission contends that the applicant's considered that his work was not of the interpretation of his contract is un standard which might be expected of founded, if for no other reason than that an employee in Grade A 6, with res it contradicts the clear words of Article ponsibilities in the field of nuclear 47 (2) of the Conditions of Employment inspection. Thus, after careful reflection of Other Servants referred to in the and after taking note of the observations contract, which lays down in precise submitted on several occasions by Mr terms the method whereby notice is to be Favre, his superiors reached the con calculated. Moreover, even though the clusion that it was not in the interest of Safeguards, Nuclear Inspection Pro the service that he should continue to be gramme constitutes one of" the per employed by the Commission. Moreover, manent tasks of the Commission, the the Commission contends that, according considerable growth of work in this area to the judgment in the De Briey case, in has compelled the defendant to increase the case of dismissal for incompetence the number of nuclear inspectors, the Court may not review the basis on without however having available a which that decision was arrived at,

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except where a patent error or a misuse since Article 47 (2) of the Conditions of of power may be proved. In this case, the Employment of Other Servants expressly applicant has neither proved nor even provides for the possibility of terminating alleged that the contested decision is the contract of a temporary employee, vitiated by either a patent error or a concluded for an indefinite period, by misuse of power. means of notice.

As regards the third submission, the 3. In his reply, the applicant expresses defendant regrets that the applicant saw his surprise at learning from the defence fit to implicate two officials, even though that his contract was for a period of it is sufficiently clear from the documents three years only, since in all good faith produced that the disputed decision, he had relied upon the actual terms of which, moreover, was not taken by the the contract which expressly stated that said officials, was adopted after an it was valid as long as the Nuclear objective consideration of all the Inspection Programme remained in elements of the case and after consul being, and this was linked to the tation with the applicant's immediate continuance in force of the Treaty itself. superiors. Furthermore, contrary to what Moreover, it would be surprising if it the applicant states, misuse of power were true that a contract which could be cannot be presumed: it is for the terminated by notice did not have to applicant to prove it. The fact that the state the grounds on which it was based. applicant was not dismissed at the end of However, in the applicant's view, it is his probationary period is certainly not not disputed that the decision to dismiss proof of such a misuse. On the contrary, him was definitive in Mr Gmelin's mind, that fact proves that the superior officers even before the applicant's defence had wished for time to consider the case been considered. As proof of this, he before proposing that the appointing refers to the director's memorandum of 7 authority should take a decision which May 1982, according to which "the basis would have such serious consequences of the report will not be modified". The for the employee concerned. Furth applicant also contends that it is not ermore, it is true that Mr Favre's contested that the procedure in question theoretical knowledge has not been was changed and the file was incomplete called in question. That fact, far from because it contained documents which, constituting evidence of any kind of contrary to Article 26 of the Staff Regu misuse of power, proves rather that the lations, were not communicated to him. applicant's superiors behaved in a clearly The relevant Member of the Commission objective manner since the initiative, took his decision without even taking sense of responsibility, quantity and note of the documents which were quality of the applicant's work were missing from the file or which had not considered unsatisfactory in relation to been communicated to the applicant. The the post which he held. applicant's immediate superiors were opposed to his dismissal, which they neither proposed nor suggested, and, moreover, they were not kept informed of developments in the proceedings. The documents cited by the Commission Finally, the defendant does not see against the applicant arc unilateral, and how the dismissal could constitute "an do not take account of the views of both economically and socially irregular act", sides. That is the case, for example, with

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the memoranda of the interviews 4. In its rejoinder, the Commission between the various persons concerned, contends that, as regards the first dictated by the director, Mr Gmelin, and submission, if the applicant considered not properly circulated. that the procedure followed was ir regular, or that the rights of the defence had been disregarded, it was for him to make an express submission on that point, which he has refrained from doing. As regards the interest of the service, Mr Favre contends that he remained in office for months after the end of his probationary period, that he continued to study the Windscale programme and that his work is very largely wasted because he cannot continue it. However, The defendant points out that, contrary he is probably the only one capable of to what was erroneously indicated in the doing it, since the inspectors recruited by defence, the temporary posts provided means of the competition in which he for a number of the successful candidates was successful have very little knowledge recruited through the competition in of nuclear matters. The applicant con which the applicant was successful were tends in that connection that, despite in fact granted by the budgetary auth the Commission's statements, the said orities not for a period of three years but competition was not organized for the for an indefinite period. They were none purpose of recruiting nuclear inspectors, the less temporary posts, as the applicant because it was no more than an open could not be unaware because his competition on the basis of both contract expressly referred to Article 2 qualifications and tests for the purpose (a) of the Conditions of Employment of of constituting a reserve list of ad Other Servants, which deals with "staff ministrators belonging to the scientific engaged to fill a post which is included staff. in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary".

As regards the misuse of powers, the applicant contends that a director who presents minutes of meetings which distort the opinions expressed by the superior officers of the person concerned The statement in Mr Favre's contract is not acting legally, but is usurping that: "This contract is concluded for an powers granted him by the Staff Regu indefinite period linked to the duration lations. The proof that the dismissal was of the Nuclear Inspection Programme" already certain in Mr Gmelin's mind is means therefore that the period of that, from April 1982, he did not take validity of the contract is limited to the the necessary steps to ensure that the period for which the temporary post is applicant underwent the medical exam granted by the budgetary authorities. ination required by the regulations, the Obviously that limit in no way restricts applicant not having undergone any sort the possibility of making use of Article of medical examination other than upon 47 (2) of the Conditions of Employment his engagement on 9 February 1981. of Other Servants.

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The applicant is confusing the statement which their users have declared that they of the grounds on which a decision is are intended. They are also responsible based (which is not required in this case) for leading a team of Grade B inspectors and the reasons for which that decision and for cooperating both with the was taken. Consideration of the reasons operators of nuclear installations within for which the decision was taken goes to the Community and with the Inter the substance of the case and need not national Atomic Energy Agency. The therefore be examined in the context importance of those tasks permits the of this submission. In any event, the Commission to require that its nuclear obligation to state the grounds on which inspectors have a very high degree of the decision was based has been initiative and responsibility and that they respected in this case. It is obvious that show themselves to be highly motivated transmission of the report at the end of in their work. In the present case, the the probationary period, the various appointing authority concluded that the interviews which the applicant had with applicant had not shown that he his superiors, the various written and possessed the required qualities. The oral comments which they made with interest of the service therefore required, regard to his work and an examination particularly in an area as important as of the file constituted during the that of nuclear energy, that the ap proceedings enabled the applicant to plicant's contract be terminated. acquaint himself with the reasons underlying his dismissal.

As regards the third submission, the As regards the second submission, the Commission contends that there is no Commission contends that the applicant justification for the applicant's belief was given another chance in the sense that he is entitled to claim that the that he was allowed to continue to cany evaluations of him supplied by his out his duties for seven months after the superiors were distorted by Mr Gmelin. end of his probationary period instead of Similarly, the fact that the applicant did being dismissed when that period came not have to undergo the special medical to an end. At the end of that further examination required for workers likely period, the administration was unfortu to be exposed to ionizing radiation was nately obliged to take the view that the due to the fact that, with the exception assessments set out in the report at the of a three-day stay at Ispra, the applicant end of the probationary period remained has never been exposed to such valid. radiation.

The Commission draws attention to the The application to call witnesses should fact that nuclear inspectors are res be dismissed. The documents produced ponsible, in particular, for carrying out prove beyond a shadow of a doubt that inspections at the various installations the applicant's superiors, whose evidence where production, separation and use of the applicant wished to have placed raw materials or special fissionable before the Court, considered that he did materials, as well as the processing of not have the necessary knowledge and irradiated fuels, takes place. The in experience to carry out the duties spectors are, in particular, supposed to entrusted to him. Similarly, to examine ensure that the aforementioned materials them in order to establish whether they are not put to a use other than that for had asked that Mr Favre be dismissed,

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whether they considered that that the file which were either missing or measure was or was not justified, disputed. Those facts, even if they were whether they took part in the dismissal proved, could have no influence procedure or were kept informed of whatsoever on the proceedings because developments therein would be irrelevant the applicant does not make clear to because those questions are for the which missing or disputed documents he authority empowered to dismiss tem is referring and, what is more, he does porary employees. not explain how the said documents (or their absence) could have any influence The application to hear the staff rep on the contested decision. resentatives is no more justified than the preceding one because it seeks to establish, on the one hand, that at the IV — Oral procedure time at which he inspected his personal file, Mr Favre made certain oral obser The parties presented oral argument at vations about its content and, on the the sitting on 26 January 1984. other hand, that, at the conciliation meeting with Mr Burke held to discuss The Advocate General delivered his the case, a staff representative offered to opinion at the sitting on 23 February send Mr Burke certain documents from 1984.

Decision

1 By application lodged at the Court Registry on 29 December 1982, Pierre Favre , a former temporary employee of the Commission of the European Communities , brought proceedings for the annulment of the decision taken by the Commission on 4 November 1982 on the basis of Article 47 (2) (a) of the Conditions of Employment of Other Servants (hereinafter referred to as " the conditions "), to terminate his contract of employment as a temporary employee .

The background to the decision

2 The applicant, a successful candidate in Competition No COM / A / 322 held for the purpose of constituting a reserve list for the recruitment of administrators with scientific training and having experience in the nuclear field, was engaged on 16 September 1981 as a temporary employee for, according to the terms of his contract , " an indefinite period (Article 2 (a) of the Conditions of Employment of Other Servants) linked to the duration of the Nuclear Inspection Programme ".

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3 He was assigned to the Directorate General for Energy, Euratom Safeguards Directorate, and, by a memorandum sent to him on 27 October 1981, his superiors, Mr Bommelle, head of division, and Mr Van der Stijl, head of sector, directed him to study certain problems of security relating to the nuclear plant at Windscale in England, and also to prepare a report containing his conclusions and proposals on those questions by December 1981.

4 That report was not submitted within the required period and Mr Bommelle sent him a reminder on 27 January 1982, as written confirmation of an interview which took place on 19 January, calling on him to submit the results or his work without delay.

5 On 29 January, the applicant sent to Mr Van der Stijl a memorandum of a little more than one page entitled "Basis for a reply to BNFL / DOE " representing the results of his work on the study which he had been given, as well as a one-page summary of an annex to a letter of 20 February 1981 sent to the Directorate General for Energy by the United Kingdom Department of Energy. On 10 March, he forwarded to his superiors a memorandum describing a training course in which he had taken part on the use of an instrument for measuring enrichment in U-235.

6 At the end of his probationary period, a draft report, drawn up on 5 April was sent to him on 23 April 1982 for observations. That report, drawn up by Mr Gmelin, Director of the Euratom Safeguards Directorate, and Mr Bommelle, indicated, as work carried out during the probationary period attendance at "training courses and schemes" and an "analysis of the file and proposals for action regarding the Windscale reprocessing plant". His initiative and sense of responsibilities were considered "unsatisfactory" The speed with which he carried out his work was described as "very unsatis factory". It was pointed out that because of his "minimal output", the quality of his work could not be judged. The general observations drew attention to the fact that the applicant, who had been directed to carry out the study referred to above, had only produced "a two-page synthesis of the file , work which must be regarded as "totally unsatisfactory", that he had been called upon orally on several occasions and twice in writing to finish his

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work and, finally, that the official responsible for training had drawn the attention of Mr Favre's superiors to "his manifest lack of interest in the courses". The report concluded that the applicant did not have the necessary qualifications to carry out the duties entrusted to him.

7 Since he had not submitted any written observations during the 15 days following the transmission of the report, the applicant was asked by Mr Gmelin to attend a meeting on 7 May at which Mr Bommelle, Mr Van der Stijl and Mr Korzilius were also present. When asked to give his opinion on the contents of the probation report, the applicant gave Mr Gmelin his observations, which he set out in writing on 6 May. It was decided to continue the interview on 17 May, after the applicant's observations had been read. At the end of that second meeting, at which the same persons were present, Mr Gmelin told the applicant that, as regards the substance of the problem, after having heard him several times and having studied his written observations, he could do nothing other than indicate to his superior, Mr Audland, Director General of D G XVII, that, in his opinion, the applicant did not have the necessary qualifications to carry out the duties entrusted to him but he would none the less propose to Mr Audland that if it was decided to dismiss the applicant, the period of notice of approximately three weeks provided for in the Conditions should be extended to four months.

8 In reply to the probation report, which was transmitted to him signed by Mr Audland, and upon which the applicant had indicated his disagreement in a signed statement, Mr Favre added to the said report a memorandum dated 9 June in which he repeated most of the arguments that he had advanced both in his written observations of 7 May and during the meetings of 7 and 17 May 1982. In his view, it was incorrect to say that he had been given several oral reminders and two written reminders. The one and only oral reminder, before 23 April, had been given on 19 January and likewise the one and only written reminder had been sent in the memorandum of 27 January. As regards the complaints made about the quality and the speed of his work, his initiative and his sense of responsibilities, he pointed out that during his probationary period, half of his time had been spent at training or language courses, or on leave. Furthermore, he did not have an office in the directorate until the end of March 1982. and had had to work essentially alone without the help of his superiors. The Windscale file which he had been given was a sensitive file on which little progress had been made since 1973 and in view of the fact that he was cleared to see classified material only on 15 March 1982, to have followed to the letter the work plan given him on 27 October 1981 would have involved infringing the rules regarding

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the protection of classified material. He pointed out that after the first comments had been made to him on 23 April 1982, he had drafted, during the week of 26 to 30 April, a longer report on security control at Windscale, so as to prove that he had correctly carried out the work given to him during his probationary period. Mr Van der Stijl had considered that the report "could be used as a starting document". Finally, as regards his initiative and his sense of responsibility, he does not understand how such complaints could be made about an officer on probation who had not yet been trained, who had not yet been cleared to see classified material, who was not auth orized to carry out inspections and who had no staff.

9 On 2 July, Mr Bommelle gave the applicant a new work programme consisting of (1) the drafting, by 15 July at the latest, of a "letter to BNFL on the subject of Design Information" (2), the drawing up, by the end of July, of a new version of the report on security control at Windscale which he had drafted in April, taking account of Mr Van Der Stijl's comments, (3) the drawing up, by the end of August and the end of September respectively, of "FA" and " PSP ", projects, and finally (4) the drafting of a letter to the International Atomic Energy Agency, as soon as a reply had been received from BNFL to the letter referred to in Point (1) above.

10 In his monthly report, drawn up on 24 August 1982 and sent to Mr Gmclin, of Mr Favre's work performed during the month of July Mr Bommelle pointed out that, in spite of his insistence and of the applicant's promises, the latter had not performed, by the required date, the first task which had been given to him in the work programme of 2 July. As regards the second task, the applicant has drafted two memoranda. The first, whilst containing some good features, none the less tailed off into "unreal comparisons with the situation in France". The report also pointed out that the applicant had been present from 1 to 12 July and absent from 14 July to 15 August because of illness, which was supported by a medical certificate.

11 By a letter of 30 July 1982, the Director General of Personnel informed the applicant that, in the light of the evaluations made by his superiors of the

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quality of his work since his appointment, he had asked the relevant Member of the Commission to terminate his contract from 2 November on the basis of Article 47 (2) (a) of the Conditions. That letter was sent to him so as to make it easier for him to find a fresh post.

12 In a memorandum of 19 August 1982 to Mr Burke, the Member of the Commission responsible for personnel matters, the Director General of Personnel, referring to the report made on the applicant at the end of his probationary period and to an interview between the Head of the Staff Regulations Division and Mr Audland on 28 July 1982 during which the latter had confirmed that after 10 months' service, the quality of the applicant's work still left much to be desired and had proposed his dismissal, requested that Mr Favre's contract be terminated with effect from 2 November 1982 in pursuance of Article 47 (2) (a) of the Conditions.

13 The Luxembourg section of the Staff Committee of the Commission, to which the applicant had referred his case, approached Mr Burke on 17 September 1982 and asked that the applicant be given a second chance. At the end of that interview, Mr Burke indicated that he did not share the opinion of the members of the Committee that the legal position was unsat isfactory but that in the light of all the factors put forward by the staff representatives, he would none the less take time to consider the position and would make his decision known later. Following upon that conciliation meeting, a transfer of the applicant was considered but proved to be impossible.

1 4 On 4 November, on a proposal of the Director General of Personnel dated 29 October, Mr Burke decided to terminate the applicant's contract in pursuance of Article 47 (2) of the Conditions by notice of dismissal beginning on 10 November and ending on 31 December 1982.

15 The applicant was informed by a letter from the Director General of Personnel dated 4 November 1982 that the competent authority had decided to terminate his contract in pursuance of Article 47 (2) (a) of the Conditions

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by notice of dismissal to commence on 10 November and end on 31 December 1982. A complaint against that decision was registered on 26 November 1982 and rejected by a letter from Mr Burke on 3 February 1983.

16 In support of his application for the annulment of the decision, the applicant rehes on three submissions alleging the absence or insufficient nature of the statement of the reasons on which it was based, the infringement of Article 7 of the Staff Regulations and the misuse or abuse of powers.

First submission

17 Essentially, the applicant complains in his first submission that the Commission, on the one hand, did not indicate in the notice of dismissal sent to him on 4 November 1982 by the Director General of Personnel the grounds for his dismissal and, on the other hand, took that decision on the basis of insufficient or non-existent grounds.

The failure to state grounds

18 Whilst accepting that according to the Court's case-law and in particular the judgment of 26 Februaiy 1981 (Case 25/80 De Briey [1981] ECR 637), the grounds for the termination, in pursuance of Article 47 (2) (a) of the Conditions, of the contract of a temporary employee appointed for an indefinite period need not necessarily be stated, regard being had to the discretion which that provision confers on the competent authority, the applicant contends that his position, as determined by the very words of Article 4 of his contract of employment according to which that contract was concluded for "an indefinite period (Article 2 (a) of the Conditions of Employment of Other Servants) linked to the duration of the Nuclear Inspection Programme", is not comparable to that of an employee engaged n pur cont u der a " e ", ract for an indefinite period and must be assimilated, for the duration of the programme, to that of an official within the meaning of the Staff Regulations. The aforementioned case-law is not therefore applicable to him.

19 That argument cannot be upheld. The fact that the Commission expressly stated in Article 4 of the contract that it was being concluded for an indefinite period (Article 2 (a) of the Conditions) linked to the duration of the Nuclear Inspection Programme cannot change the temporary nature of

JUDGMENT OF 30. 5. 1984 — CASE 346/82

his appointment. As the Commission stated during the oral procedure, the sentence in question simply means that the applicant's post was a temporary one because the budgetary authorities had so decided. At the time of his appointment, the Euratom Safeguards Directorate had eight temporary posts available and it was proposed to engage, for three of those posts, three can didates who had been successful in the competition, among them was the applicant.

20 Under those conditions, the clause in the contract according to which its indefinite duration is "linked to the duration of the Nuclear Inspection Programme" must be interpreted as meaning that it serves, on the one hand, as a justification for his being appointed as a temporary employee and, on the other hand, as an indication to the employee concerned of the final date at which his contract would expire.

21 It follows therefore that the first part of this submission cannot be upheld.

Absence or inadequacy of grounds

22 The applicant contends that the decision to dismiss him was based on inad equate grounds, which is tantamount to being based on no grounds at all. In his view, the statements made in the probation report cannot be cited against him. Moreover, the Windscale file entrusted to him did not allow him, because of its political and secret character, to submit specific results and cannot therefore support the contention repeated in the letter of 30 July 1982 from the Director General of Personnel to the effect that the quality of the applicant's work was unsatisfactory from the time at which he took up his duties.

23 That argument cannot be upheld either. In the first place, it should be emphasized that Article 47 (2) (a) of the Conditions, referred to in Article 5 of the applicant's contract, expressly provides for the possibility of termi nating the contract of a temporary employee, concluded for an indefinite period, by means of a given period of notice, and nothing in this case has made it possible to establish that when it adopted the contested decision the competent authority exceeded the limits of its discretion in this matter.

FAVRE / COMMISSION

24 The allegation that the political and secret nature of the file entrusted to the applicant prevented him from submitting specific results, capable of allowing the quality of his work to be objectively evaluated , is contradicted by the existence of the report submitted by the applicant on 28 April, that is, four- months late, which , according to Mr Van der Stijl's memorandum of 2 July 1982, " could have served as a basis for further studies, had it been published in due time ".

25 It appears from the documents before the Court , and in particular from the letters and memoranda from the Director General of Personnel dated 30 July , 19 August and 29 October 1982, that the Commission believed that it had good reason for its decision to dismiss the applicant, particularly because of the inadequacy of his output . The applicant has not proved the existence of errors of fact or of evaluation such as to show that the Commission has exceeded the limits of its discretion in this regard .

26 Under those conditions, it cannot be concluded, on the basis of the documents before the Court, that the evaluation of the quality of the applicant's work is vitiated by a patent error such as to justify the annulment of the decision to dismiss him taken pursuant to Article 47 (2) (a) of the Conditions.

27 Consequently, the second part of this submission must also be rejected.

Second submission

28 In the applicant's view, his dismissal is illegal because it is not in the "interest of the service", within the meaning of Article 7 of the Staff Regulations, which is the corner-stone of those regulations and which, though it is not mentioned in Article 11 of the Conditions, also applies by analogy to the dismissal of temporary employees. The recruitment of nuclear scientists would become impossible, he claims, if such highly specialized persons were offered no security of employment.

JUDGMENT OF 30. 5. 1984 — CASE 346/82

29 Whilst it is undeniable that Article 7, according to which the competent authority must, as regards assignment by appointment or transfer, be guided solely by the interest of the service, expresses a principle which constitutes one of the guiding rules of administrative action whose application cannot be limited solely to the assignment of officials, and whilst it is also undeniable that it is in the interest of the institutions to recruit or appoint persons of the highest ability and efficiency, the dismissal of an employee whose work does not correspond, in the view of the competent authority, to what might reasonably be expected of him, cannot be criticized by reference to that rule.

30 This submission must therefore be rejected.

Third submission

31 The applicant contends that his dismissal constitutes a misuse if not an abuse of power. His dismissal was not, he claims, in the interest of the service but. rather to allow certain of his superiors to rid themselves of him.

32 It should be noted in this connection that no evidence has been produced in support of that allegation. This submission must therefore be rejected.

33 Since the applicant has failed in his submissions, the application must be dismissed

Costs

34 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs.

35 However, Article 70 of the said Rules of Procedure provides that in staff cases the institutions of the Communities are to bear their own costs.

FAVRE / COMMISSION

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Koopmans O'Keeffe Bosco

Delivered in open court in Luxembourg on 30 May 1984.

J. A. Pompe T. Koopmans Deputy Registrar President of the First Chamber

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN DELIVERED ON 23 FEBRUARY 1984

My Lords, He came out high in the competition. On 25 September 1981 he entered into The applicant in these proceedings took a contract of employment with the part in Competition COM/A/322 which Commission as a temporary employee, as was arranged for the purpose of creating an administrator in the Directorate a reserve list of administrative officers in General of Energy Security Control of grades A 7/6 who would be concerned Euratom. His contract was said to be with nuclear installations and materials. for an indefinite period linked to