C-347/82
ECLI:EU:C:1984:147
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J U D G M E N T OF T H E C O U R T (SECOND CHAMBER) 5 APRIL 1984 1
José Alvarez ν European Parliament
(Official — Dismissal — Unfavourable probation report — Contestation)
Case 347/82
Officials — Recruitment — Probationary period — Dismissal — Discretion of the administration — Review by the Court — Limits (Staff Regulations, Art. 34)
As regards dismissal pursuant to Article and the Court's power of review extends 34 of the Staff Regulations the ap- only to manifest errors or the possibility pointing authority has a wide discretion of misuse of powers.
In Case 347/82
JOSÉ ALVAREZ, formerly a probationary official of the European Parliament, residing at Strassen, represented by Victor Biel, with an address for service in Luxembourg at the latter's Chambers, 18 A Rue des Glacis,
applicant, ν
EUROPEAN PARLIAMENT, represented by Manfred Peter, Head of the Legal and Administrative Questions Division, assisted by Alex Bonn, with an address for service in Luxembourg at the latter's Chambers, 22 Côte d'Eich,
defendant,
APPLICATION for the annulment of the second decision (dated 6 December 1982) to dismiss the applicant and for damages of at least BFR 500 000,
1 — Language of the Case: French.
JUDGMENT OF 5. 4. 1984 — CASE 347/82
T H E C O U R T (Second C h a m b e r )
composed of: K. Bahlmann, President of Chamber, P . Pescatore and O. Due, Judges,
Advocate G e n e r a l : P . V e r L o r e n van T h e m a a t Registrar: J. A. P o m p e , D e p u t y Registrar
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of without reason, that he had difficulties in the procedure and the conclusions, his relations with his colleagues and that submissions and arguments of the parties he had numerous disputes, sometimes may be summarized as follows : violent, with his superiors, towards whom he displayed a degree of duplicity.
After the Parliament administration had I — Facts and written p r o c e d u r e communicated the report to the applicant and taken note of his comments, it obtained supplementary information José Alvarez was a member of the from various officials. This resulted in auxiliary staff of the European Par- three memoranda being placed in the liament from 26 March 1979 to 30 applicant's file : September 1980 and was then appointed a probationary official of that institution with effect from 1 October 1980. When (a) a memorandum of 18 May 1981 his probationary period expired, Mr from Mr Mestat, Head of the Alvarez received an unfavourable report Conferences and Protocol Division; recommending that he be dismissed. (b) a memorandum of 20 May 1981 It may be seen from that report, which from Mr van Schelven; was drawn up on 30 March 1981, that the assessments of the applicant's work were generally negative. In particular, (c) a memorandum of 21 May 1981 the report notes that the applicant drawn up by Mr van den Berge, displayed a marked lack of interest in his Director of General Administration work, that on occasion he was absent at the Parliament.
ALVAREZ / PARLIAMENT
Those memoranda all noted that Mr He requested the applicant to submit any Alvarez's conduct disturbed the smooth comments within a period of 15 days. running of the department; that from Mr van den Berge concluded that the dismissal of the applicant was not only By letter of 20 October 1982, the thoroughly justified, but absolutely applicant's legal representative refused necessary. It is common ground that to accept the communication, and those memoranda were not com- demanded the immediate reinstatement municated to the applicant at the time. of the applicant in his former duties, in compliance with the judgment of 6 October 1982. On the basis of the probation report and the above-mentioned supplementary memoranda, the Secretary-General of In a letter of 17 November 1982, the the Parliament informed the applicant, Director of Personnel and Social Affairs by letter of 18 June 1981, of his decision at the Parliament challenged the con- to dismiss the applicant with effect from struction put by the applicant on the 15 July 1981. The applicant brought an judgment of 6 October 1982; he action against that decision and against contended that the judgment annulled his probation report. At the same time as the dismissal decision on the ground his main action, he lodged an application of a procedural defect only, namely to suspend the operation of the decision the failure to communicate the sup- to dismiss him. The latter application was plementary memoranda. In those circum- dismissed by order of 20 July 1981 of the stances, he stated, it was clear that President of the Third Chamber ([1981] the appointing authority had to decide ECR 2187). However, by judgment of the fate of the probationary official, 6 October 1982 ([1981] ECR 3369), the observing this time the procedural rules Third Chamber annulled the dismissal the infringement of which had resulted decision on the chief ground that "by in the above-mentioned judgment. failing to communicate to the applicant Accordingly, the Director of Personnel all the documents underlying its decision, and Social Affairs resubmitted the it [the appointing authority at the Par- probation report and the supplementary liament] failed to observe the adversary memoranda to the applicant for his procedure laid down in Article 34 (2) comments, pointing out that if no of the Staff Regulations", and that as comments were received, the Parliament a result "the applicant was precluded would be obliged to consider that the from giving his comments on all the whole report had met with the complaints made about him, which led to applicant's approval. the dismissal decision".
By letter of 23 November 1982, the applicant's legal representative, after It may be seen from the file that, again accusing the Parliament of failing following the above-mentioned judg- to comply with the Court's judgment, ment, the Director of Personnel and demanded the reinstatement of Mr Social Affairs at the Parliament again Alvarez. Again he protested against what submitted to Mr Alvarez his probation he termed the Parliament's "new report, by letter of 14 October 1982, and ultimatum" for the submission of the appended to it the memoranda which applicant's comments on the memoranda had not been disclosed to him in the supplementing the probation report. He course of the first dismissal procedure. added: "On no account must you
JUDGMENT OF 5. 4. 1984 — CASE 347/82
assume that the whole report has been with the judgment of 6 October 1982, accepted by my client", and went on to and on 3 March 1983 he lodged an say that he "reserved the right to application for the interpretation of the formulate any further observations and judgment of 6 October 1982, which criticisms at the appropriate time and the Court dismissed by order of place". 29 September 1983.
After that letter, the Director of Per- The written procedure in this case sonnel and Social Affairs informed the followed the normal course, taking into applicant on 10 December 1982 that he account the fact that, by virtue of Article would be dismissed with effect from 15 91 (4) of the Staff Regulations, the December 1982. proceedings were suspended until the decision rejecting the applicant's com- On an unconfirmed date, the applicant plaint had been taken. lodged a complaint within the meaning of Article 90 (2) of the Staff Regulations. Upon hearing the report of the Judge- Rapporteur and the views of the On 29 December 1982, the applicant Advocate General, the Court (Second brought an action for the annulment of Chamber) decided to open the oral the second dismissal, which included a procedure without any preliminary claim for damages of "at least" BFR inquiry. 500 000 because of the "vexatious nature" of that dismissal. On the same date, by a separate document, pursuant II — C o n c l u s i o n s of t h e p a r t i e s to Article 83 of the Rules of Procedure, he submitted an application to suspend the operation of the decision that was The applicant claims that the Court the subject of the proceedings. should:
That application was rejected by order of Declare the application admissible; 17 January 1983 of the President of the Second Chamber, who, as far as the Declare that it is well founded; urgency was concerned, referred to the order given on 20 July 1981 and held, as Annul in consequence the second regards the factual and legal grounds dismissal, with . all the legal conse- establishing a prima facie case for the quences; grant of interim measures, that the Par- liament had complied with the judgment Declare that owing to its vexatious of 6 October 1982 by communicating to nature the second dismissal caused non- the applicant all the documents on which material damage to the applicant to the his dismissal had been based, since the amount of at least BFR 500 000; •Court had annulled the first dismissal on the basis of failure to observe the In any event order the Parliament to pay adversary nature of the procedure the costs of the proceedings, which the provided for under Article 34 (2) of the applicant was obliged to bring, even Staff Regulations. though vexatious.
Nevertheless, during that period, the The European Parliament claims that the applicant's representative continued to Court should : make representations to the Parliament administration concerning compliance Dismiss the action with costs.
ALVAREZ / PARLIAMENT
IIΙ — Submissions and argu (e) The second dismissal constitutes, in m e n t s of t h e p a r t i e s addition, a misuse, or at least an improper use, of powers, which, in the applicant's view, justifies his The applicant first sets out the facts of application for substantial damages. the case and contends that the Par liament was unwilling to comply with the judgment of 6 October 1982, as is shown The Parliament reviews the whole history by the fact that it resubmitted mem of the dispute and contends that the oranda to the applicant that the Court, various submissions in the action are in Case 206/81, had declared could not unfounded. be relied on. It was for that reason that the applicant's legal representative had returned the documents to the Par As regards the applicant's third sub liament without comment. mission, namely its alleged failure to comply with the judgment of 6 October The applicant makes the following 1982, the Parliament contends that it submissions in support of his application complied with the judgment without for the second dismissal decision to be delay. However, it questions whether the annulled: applicant is equally willing to comply with the judgment. It submits that Mr Alvarez seeks to construe the judgment (a) If the Court were to uphold the of 6 October 1982 as saying that, second dismissal it would necessarily following the annulment of the dismissal have to go back on its previous view decision, his status was no longer that and allow specific criticisms which of a probationary official but that of had been dismissed by the judgment an established official, whereas the of 6 October 1982 to be used again judgment merely annulled the dismissal for the same ends. decision for failure to observe the adversary nature of the administrative (b) The Rules of Procedure would be procedure. In the Parliament's view, infringed, in so far as by admitting in the effect of the judgment of 6 October new proceedings documents that 1982 was to put the parties back in it had been held in the first pro the position in which they were before ceedings could not be relied on the dismissal which was subsequently against the applicant, the Court annulled. Consequently, following the would have to act in breach of the judgment, the Parliament had to make principle of legal certainty. good the procedural defect underlying the Court's decision. (c) By refusing to assign a post to the applicant and by actually deciding to dismiss him a second time on The Parliament contends that Mr pretexts "contrary to all legal Alvarez's first two submissions are on principles", the Parliament was similar lines. In point of fact, the Court refusing to comply with a judgment did not find in its first judgment that the of the Court. three supplementary memoranda could not be relied on, precisely because the Court held that the dismissal should be (d) The second dismissal is illegal annulled on the ground of its non- inasmuch as it constitutes repudi adversary nature owing to the failure ation of the authority of the Court to communicate the memoranda to Mr of Justice. Alvarez in the proper manner. Ac-
JUDGMENT OF 5. 4. 1984 — CASE 347/82
cordingly, it is not the Parliament that mount to simply confirming an earlier has failed to comply with the Court's decision, which conflicts with the judgment by remitting all the documents judgment of 26 May 1971 (Joined Cases to the applicant, but the latter, in so far 45 and 49/70 Bode ν Commission [1971] as he has refused to submit comments on ECR 465). the memoranda. In the Parliament's view, that is evident from the interim order of 17 January 1983. In his view, the proper course of action for the Parliament was not to make good its failure to respect the adversary nature of the first procedure, but to comply In those circumstances, it is pointless to with the first judgment, since the Court discuss the submission concerning the had never ordered or even recommended alleged breach of law and the questions the Parliament to effect a second of a possible misuse or improper use of dismissal while paying closer attention to powers. the rights of the defence. Moreover, contrary to the Parliament's assertion, the non-adversary nature of the pro cedure was not the sole ground for the In his reply, the applicant points out first, annulment of the first dismissal, since in as regards the facts, that the documents paragraph 6 of the judgment of produced by the Parliament still do not 6 October 1982 the Court stated that: include the memoranda mentioned by "the probation report itself was in Mr Mestat, stating that Mr MacKeever complete as regards his qualifications drew up several memoranda concerning and the appraisal of his performance and very numerous incidents involving Mr moreover was unusually laconic". Alvarez and his superiors. H e claims once again that the Parliament failed to comply with the judgment of 6 October In addition, in the applicant's view, the 1982: the annulment of the dismissal memoranda are illegal and not even the entailed for the Parliament "obligations fact of their being communicated could other than that of reviving a procedure confer any status on them in law or which, in the view of the Court, cannot under the Staff Regulations. As a be relied on against us". H e protests consequence, the applicant reiterates his equally vigorously against the claim that arguments in full, in particular that of he might have accepted the sup the infringement of the procedural rules plementary memoranda by tacit acqui on the basis that, in his view, a pro escence, and refers in this connection to cedural defect may not be rectified and his reply lodged in Case 206/81 and, in any derogation from that principle particular, to paragraphs 7, 8, 9 and 12 constitutes a breach of legal principles. thereof.
H e further maintains that no-one may be proceeded against twice on the basis of As regards the submission that the Par the same facts when a decision against liament failed to comply with the which no appeal may be filed has been judgment of 6 October 1982, the ap taken by a court having jurisdiction. plicant reiterates that the Parliament should have assigned him a post in his service and in his career bracket, and The second dismissal is also unlawful, in was certainly not entitled to decide to so far as it is absurd to claim that the dismiss him again, since that is tanta Court's judgment of 6 October 1982
ALVAREZ / PARLIAMENT
entailed any right whatsoever to dismiss In its rejoinder, the Parliament first the applicant for a second time. rejects the applicant's request that the memoranda from Mr MacKeever be produced. It states that it has nothing Mr Alvarez claims that the Parliament more to add as far as the applicant's misused its powers by misusing proce- submissions are concerned, and repeats dures, in so far as the appointing authority applied Article 34 of the Staff emphatically that it has complied with Regulations instead of the disciplinary and will continue to comply with the procedure under Article 51. Court's judgment as far as is necessary and without any reservation.
In the alternative, if, as the applicant considers to be unlikely, the sup- IV — Oral procedure plementary memoranda may be relied on against him, he contests those memoranda, claiming principally that his The parties presented oral argument at dismissal was due not to his behaviour the sitting on 26 January 1984. but rather to the situation within the The Advocate General delivered his messengers’ department. opinion at the sitting on 1 March 1984.
Decision
1 By application lodged at the Court Registry on 29 December 1982, Mr Alvarez, a former probationary official of the European Parliament, brought an action for annulment of the decision to dismiss him taken by the Director of Personnel and Social Affairs of the European Parliament on 6 December 1982 and also for compensation for the non-material damage suffered by him as a result of that decision.
2 By judgment of 5 October 1982 (Case 206/81 [1982] ECR 3369), the Court (Third Chamber) annulled the first decision to dismiss the applicant, which had been taken on 19 June 1981, on the ground that, by failing to communicate to the applicant all the documents underlying its decision, and, in particular three memoranda supplementary to the probation report, the Parliament had failed to respect the adversary procedure provided for under Article 34 (2) of the Staff Regulations.
JUDGMENT OF 5. 4. 1984 — CASE 347/82
3 Following that judgment, the Parliament recommenced the dismissal procedure by communicating to the applicant the probation report together, this time, with the three supplementary memoranda. After giving the applicant the opportunity to submit comments, the Parliament took a new decision dismissing him, thereby rejecting his repeated requests to the effect that the Parliament was obliged to reinstate him in compliance with the judgment of 6 October 1982.
4 At the same time as he brought this action, the applicant submitted an interim application to suspend the contested decision. That application was dismissed by order of 17 January 1983 of the President of the Second Chamber ([1983] ECR 65).
5 After bringing his action against the new dismissal decision, the applicant nevertheless continued to make representations to the Parliament administration concerning its compliance with the judgment of 6 October 1982, and on 3 March 1983 he lodged an application for the interpretation of that judgment, which the Court (Second Chamber) dismissed by order of 29 September 1983.
6 In his application, Mr Alvarez contends essentially that by proceeding in the manner described above the Parliament has refused to comply with the first judgment of the Court; that, therefore, the second dismissal constituted a repudiation of the authority of the Court of Justice, and, moreover, a misuse, or at least an improper use, of powers; that if the Court upheld the second dismissal it would have to go back on its earlier decision and allow certain criticisms which had been dismissed by the judgment of 6 October 1982 to be used again for the same ends, which would also be an infringement of procedural rules and a breach of the principle of legal certainty. However, at the sitting the applicant withdrew the line of argument based on misuse of powers.
7 The Parliament contests all those submissions, contending essentially that, since the effect of the judgment of 6 October 1982 was to put the parties back in the same position as they were in before the dismissal that was sub- sequently annulled, the Parliament had to make good the procedural defect criticized in the Court's decision. Consequently, the first judgment had not found that the supplementary memoranda could not be relied on, and it was
ALVAREZ / PARLIAMENT
not the Parliament that had failed to comply with the judgment but the applicant, by failing to submit his comments. Under those circumstances there had been no repudiation of the authority of the Court of Justice and likewise no misuse or improper use of powers.
8 It should be examined first whether the Parliament complied correctly with the judgment of 6 October 1982.
9 As has already been observed in the order of 17 January 1983, the Court by its judgment of 6 October 1982, annulled the first dismissal on the basis of the failure to respect the adversary procedure provided for under Article 34 (2) of the Staff Regulations. The applicant himself acknowledged at the sitting that the effect of the annulment of the first dismissal was to restore the status quo ante. Accordingly, by remitting to the applicant all the papers on which his dismissal is based, including all the documents not previously communicated to him, the Parliament complied in that regard with the judgment of 6 October 1982.
10 Consequently that argument must be dismissed.
1 1 Secondly, it should be examined whether, by using again the same documents on which the first dismissal had been based, the Parliament repudiated the authority of the Court's first decision and infringed the pro- cedural rules.
12 In the judgment of 6 October 1982, the Court emphasized the importance of communicating the memoranda supplementary to the probation report- nevertheless it did not annul the probation report as the applicant had requested at the time.
13 In those circumstances, the Parliament cannot be said to have disregarded the authority of the first judgment when it recommenced the dismissal procedure and asked the applicant to submit his comments on the sup- plementary memoranda in question.
JUDGMENT OF 5. 4. 1984 — CASE 347/82
14 It should be borne in mind as regards the alleged infringement of the rules governing the procedure and breach of the principle of legal certainty that, in its judgment of 6 October 1982, the Court did not rule on the substance of the criticisms set out in the supplementary memoranda; consequently, it cannot be said that the Parliament was at fault on the ground that, by communicating the memoranda to the applicant, it revived criticisms that had previously been dismissed by the Court.
15 Consequently, the whole of that line of argument must also be dismissed.
16 Lastly, the applicant's argument contesting the three supplementary memoranda must also be dismissed. The whole of the applicant's argument in this respect is restricted to allegations that were already made in the first case and to contesting the memoranda and assessments of the applicant's immediate superior, to which two of the three supplementary memoranda refer. Furthermore, the appointing authority has a wide discretion as regards dismissal pursuant to Article 34 and the Court's power of review extends only to manifest errors or the possibility of misuse of powers. In this case, however, the applicant himself does not claim that there was. manifest error. This being so, it must be held that the applicant has been unable to rebut the allegation that the standard of ability shown by him was not sufficient to justify his establishment.
17 For the above reasons, the application must be dismissed, including the application for compensation for non-material damage.
Costs
18 Under Article 69 (2) of the Rules of Procedure, the unsuccesful party is to be ordered to pay the costs. However, under Article 70 of those Rules, costs incurred by the institutions in proceedings by servants of the Communities are to be borne by the institutions themselves.
ALVAREZ / PARLIAMENT
On those grounds,
T H E C O U R T (Second Chamber)
hereby:
1. Dismisses the application;
2. Orders the parties to bear their own costs including those of the interim application.
Bahlmann Pescatore Due
Delivered in open court in Luxembourg on 5 April 1984.
J. A. Pompe K. Bahlmann Deputy Registrar President of the Second Chamber
O P I N I O N OF MR ADVOCATE GENERAL VERLOREN VAN THEMAAT DELIVERED O N 1 MARCH 1984 1
Mr President, annulment of the European Parliament's Members of the Court, second decision, dated 6 December 1982, to dismiss him under Article 34 (2) 1. Introduction of the Staff Regulations and for damages of at least BFR 500 000. The action that I have to consider today is the application by Mr Alvarez for the 1 — Translated from the Dutch.