Avis juridique important

Judgment of the Court (Second Chamber) of 15 May 1985. - Dimitrios Patrinos v Economic and Social Committee. - Staff Regulations of Officials - Failure to establish at end of probationary period. - Case 3/84. European Court reports 1985 Page 01421

Summary Parties Subject of the case Grounds Decision on costs Operative part

2 . OFFICIALS - RECRUITMENT - PROBATIONARY PERIOD - ASSESSMENT OF THE OUTCOME - APPRECIATION OF THE SUITABILITY OF A PROBATIONARY OFFICIAL - JUDICIAL REVIEW - LIMITS

1 . THE REQUIREMENTS TO BE MET IN REGARD TO STATING THE GROUNDS ON WHICH A DECISION REFUSING TO ESTABLISH A PROBATIONARY OFFICIAL AT THE EXPIRY OF HIS PROBATIONARY PERIOD IS BASED MUST BE ASSESSED IN THE LIGHT OF THE SPECIFIC NATURE OF SUCH A DECISION . WHILST IN THE CASE OF THE DISMISSAL OF AN ESTABLISHED OFFICIAL THE GROUNDS JUSTIFYING THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP MUST BE EXAMINED IN DETAIL , IN DECISIONS ON THE ESTABLISHMENT OF PROBATIONARY OFFICIALS , IT IS NECESSARY TO EXAMINE WHETHER OR NOT THERE ARE A NUMBER OF POSITIVE CONSIDERATIONS SHOWING THAT THE ESTAB- LISHMENT OF THE PROBATIONARY OFFICIAL IS IN THE INTEREST OF THE SERVICE .

2 . IT IS THE DUTY OF THE COURT TO VERIFY WHETHER A PROBATIONARY OFFICIAL WAS ALLOWED TO SERVE HIS PROBATIONARY PERIOD UNDER NORMAL CONDITIONS . HOWEVER , IT IS NOT FOR THE COURT TO INTERVENE IN THE ASSESSMENT MADE BY THE INSTITUTIONS OF THE OUTCOME OF A PROBATIONARY PERIOD AND IN THEIR APPRECIATION OF THE SUITABILITY OF A CANDIDATE FOR A PERMANENT APPOINTMENT IN THE COMMUNITY CIVIL SERVICE , EXCEPT WHERE THERE ARE MANIFEST ERRORS OF ASSESSMENT OR A MISUSE OF POWERS .

IN CASE 3/84

DIMITRIOS PATRINOS , A FORMER PROBATIONARY OFFICIAL OF THE ECONOMIC AND SOCIAL COMMITTEE , RESIDING AT ATHENS , REPRESENTED BY MARCEL SLUSNY OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V

ECONOMIC AND SOCIAL COMMITTEE , REPRESENTED BY MARIUS SIMOND , HEAD OF DIVISION AT THE DIRECTORATE FOR PERSONNEL , ACTING AS AGENT , ASSISTED BY YVETTE HAMILIUS OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 11 BOULEVARD ROYAL ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION DISMISSING THE APPLICANT AT THE END OF HIS PROBATIONARY PERIOD ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 4 JANUARY 1984 , DIMITRIOS PATRINOS , A FORMER PROBATIONARY OFFICIAL OF THE ECONOMIC AND SOCIAL COMMITTEE IN THE CAPACITY OF A PRINCIPAL ADMINISTRATOR IN GRADE A 5 , BROUGHT AN ACTION FOR THE ANNULMENT OF DECISION NO 146/83 A OF THE PRESIDENT OF THE ECONOMIC AND SOCIAL COMMITTEE , DATED 23 MARCH 1983 , DISMISSING THE APPLICANT AT THE END OF HIS PROBATIONARY PERIOD WITH EFFECT FROM 31 MARCH 1983 .

2 IN HIS APPLICATION , THE APPLICANT ALSO CLAIMS PAYMENT OF HIS SALARY AND ALL BENEFITS PROVIDED FOR IN THE STAFF REGULATIONS AS FROM 31 MARCH 1983 UNTIL THE DATE ON WHICH HE RESUMES WORK , TOGETHER WITH DAMAGES FOR THE PURPOSE OF COMPENSATING HIM FOR THE LOSS SUFFERED OWING TO HIS DISMISSAL . IT SHOULD BE NOTED THAT DURING THE PROCEEDINGS , THE APPLICANT STATED THAT HE WAS NOT PRESSING THOSE CLAIMS FOR THE TIME BEING .

THE BACKGROUND TO THE DISPUTE

5 HOWEVER , DIFFICULTIES QUICKLY AROSE BETWEEN THE DIRECTOR AND THE APPLICANT , THE FIRST CONFLICT BEING OVER AN APPLICATION FOR LEAVE SUBMITTED BY MR PATRINOS IMMEDIATELY AFTER TAKING UP HIS DUTIES FOR THE PURPOSE OF RETURNING TO ATHENS TO SETTLE HIS PERSONAL AFFAIRS . THE MEMORANDA IN THE FILE SHOW THAT THE DIRECTOR SUBSEQUENTLY CRITICIZED THE PROBATIONARY OFFICIAL ' S WORK ON SEVERAL OCCASIONS , COMPLAINING OF HIS BEHAVIOUR AT WORK AND OF THE SLOWNESS WITH WHICH HE CARRIED OUT THE TASKS ASSIGNED TO HIM . FOR HIS PART , MR PATRINOS ADDRESSED A WHOLE SERIES OF MEMORANDA TO HIS SUPERIOR IN WHICH HE DEFENDS HIMSELF AND COMPLAINS OF A LACK OF CLEAR INSTRUCTIONS , OF CONSTANT INTERFERENCE BY THE DIRECTOR IN THE CARRYING OUT OF THE TASKS WHICH HAD BEEN ASSIGNED TO HIM , OF FAILURE TO TAKE ACCOUNT OF HIS LANGUAGE PROBLEMS AND OF THE DIFFICULTY OF WORKING IN A CLIMATE OF ADMINISTRATIVE DISORDER . BECAUSE OF THE PROBLEMS ENCOUNTERED , THE DIRECTOR AT ONE POINT ASKED THE HEAD OF DIVISION TO DEVOTE PARTICULAR ATTENTION TO THE APPLICANT .

6 MR PATRINOS ' S PROBATIONARY PERIOD BEGAN ON 1 JULY 1982 AND TERMINATED NINE MONTHS LATER ON 31 MARCH 1983 . ON 25 JANUARY 1983 , THE DIRECTOR DRAFTED THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD AND FORWARDED IT TO THE SECRETARY GENERAL ON 28 FEBRUARY 1983 ALONG WITH A MEMORANDUM SUPPLEMENTING THE JUDGMENTS MADE IN THE REPORT . IN GENERAL , THE ASSESSMENTS MADE ARE NEGATIVE . THE ENTRIES IN THE BOXES DESIGNED TO SHOW THE ASSESSMENT MADE OF THE OFFICIAL ' S ABILITIES , EFFICIENCY AND CONDUCT IN THE SERVICE VARY BETWEEN ' INSUFFICIENT ' AND ' SATISFACTORY ' , WITH ' GOOD ' BEEN GIVEN ONLY FOR HUMAN RELATIONS . UNDER THE HEADING ' GENERAL ASSESSMENT ' , THE DIRECTOR MAKES THE FOLLOWING CRITICISMS : INABILITY OF THE PROBATIONARY OFFICIAL TO UNDERSTAND THE FUNCTIONING OF THE COMMUNITY INSTITUTIONS ; FAULTY DRAFTING OF MINUTES , REPORTS AND OTHER DOCUMENTS WHICH HE WAS RESPONSIBLE FOR PREPARING ; LACK OF SYSTEM AND OF ORGANIZING ABILITY ; PASSIVITY AND LACK OF INITIATIVE ; INABILITY TO REACT QUICKLY AND LACK OF CRITICAL FACULTIES ; AND INITIAL DIFFICULTIES IN RELATIONS WITH HIS COLLEAGUES . ON THE LATTER POINT , THE DIRECTOR ADMITS HOWEVER THAT WITH THE PASSAGE OF TIME , RELATIONS BETWEEN THE APPLICANT AND HIS COLLEAGUES IMPROVED . IN CONCLUSION , THE DIRECTOR PROPOSES THAT THE SECRETARY GENERAL SHOULD NOT ESTABLISH MR PATRINOS .

7 THE APPLICANT THEN ASKED THAT HIS CASE BE REFERRED TO THE REPORTS COMMITTEE , A JOINT BODY PROVIDED FOR IN THE RULES OF PROCEDURE OF THE ECONOMIC AND SOCIAL COMMITTEE . AFTER HEARING MR PATRINOS , THE DIRECTOR AND A NUMBER OF OTHER OFFICIALS , THE REPORTS COMMITTEE DELIVERED ITS OPINION ON 22 MARCH 1983 . THAT OPINION CONTAINS SEVERE CRITICISMS OF THE DIRECTOR ' S MANAGEMENT . THE COMMITTEE UNANIMOUSLY CONSIDERED THAT HAVING REGARD TO THE DIRECTOR ' S METHODS , IT WAS NOT POSSIBLE TO UNDERGO A NORMAL PROBATIONARY PERIOD IN HIS DEPARTMENT . SIMILARLY , THE COMMITTEE FOUND , BY FIVE VOTES WITH ONE ABSTENTION , THAT ' IT HAS NOT BEEN ESTABLISHED THAT THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD IS WELL FOUNDED ' . ON THE OTHER HAND , ON THE QUESTION OF DISMISSING THE APPLICANT , OPINION WAS DIVIDED : THREE MEMBERS WERE IN FAVOUR OF DISMISSING MR PATRINOS WHO , IN THEIR VIEW , HAD NOT DEMONSTRATED HIS ABILITY TO MANAGE THE SECRETARIAT OF A SECTION ; THREE OTHER MEMBERS WERE OPPOSED TO THE DISMISSAL WHILST RECOGNIZING CERTAIN WEAKNESSES ON THE PART OF THE APPLICANT WITH REGARD TO ' JUDGMENT ' , ' UNDERSTANDING ' AND ' INITIATIVE ' . THEY CONSIDERED THAT MR PATRINOS MIGHT HAVE BEEN ESTABLISHED , THOUGH ' IN ANOTHER ADMINISTRATIVE UNIT ' .

8 FOLLOWING THAT OPINION , MR PATRINOS WAS DISMISSED BY A DECISION OF THE PRESIDENT OF THE ECONOMIC AND SOCIAL COMMITTEE OF 23 MARCH 1983 . THE PREAMBLE TO THAT DECISION INDICATES THAT ' IT APPEARS FROM THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD AND FROM THE OPINION OF THE REPORTS COMMITTEE THAT MR PATRINOS HAS NOT SHOWN THAT HE POSSESSES THE QUALITIES NECESSARY IN ORDER TO BE ESTABLISHED ' .

9 ON 17 JUNE 1983 , MR PATRINOS SUBMITTED A COMPLAINT THROUGH OFFICIAL CHANNELS UNDER ARTICLE 90 OF THE STAFF REGULATIONS . ON 29 JUNE 1983 , HE ASKED TO BE ALLOWED TO UNDERGO A NEW PROBATIONARY PERIOD SINCE IT HAD BEEN IMPOSSIBLE FOR THE FIRST ONE TO TAKE PLACE ' UNDER NORMAL CONDITIONS ' . THE COMPLAINT THROUGH OFFICIAL CHANNELS WAS REJECTED BY THE PRESIDENT OF THE ECONOMIC AND SOCIAL COMMITTEE ON 28 SEPTEMBER 1983 . THE REQUEST SUBMITTED ON 29 JUNE 1983 WAS NOT ACTED UPON .

10 IN SUPPORT OF HIS APPLICATION , THE APPLICANT PRESENTS TWO SERIES OF SUBMISSIONS ALLEGING , ON THE ONE HAND , FAILURE TO COMPLY WITH ARTICLE 25 OF THE STAFF REGULATIONS INASMUCH AS THE DECISION TO DISMISS HIM DID NOT CONTAIN A SUFFICIENT STATEMENT OF THE REASONS ON WHICH IT WAS BASED AND , ON THE OTHER HAND , FAILURE TO OBSERVE ARTICLE 34 OF THE STAFF REGULATIONS INASMUCH AS IT WAS IMPOSSIBLE FOR THE APPLICANT , FOR VARIOUS REASONS , TO COMPLETE HIS PROBATIONARY PERIOD UNDER NORMAL CONDITIONS .

THE SUBMISSION ALLEGING LACK OF A SUFFICIENT STATEMENT OF REASONS FOR THE DECISION REFUSING ESTABLISHMENT

11 THE APPLICANT COMPLAINS THAT THE DECISION OF 23 MARCH 1983 WAS OF A PURELY FORMAL NATURE INASMUCH AS IT DID NOT INDICATE PRECISELY THE PARTICULAR REASONS FOR WHICH IT WAS NECESSARY TO TERMINATE HIS PROBATIONARY PERIOD AND DISMISS HIM . HE CONSIDERS THAT THE PRESIDENT OF THE ECONOMIC AND SOCIAL COMMITTEE SHOULD HAVE REFUTED IN DETAIL THE OBSERVATIONS WHICH HE HAD MADE ON THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD AND SHOULD HAVE SHOWN SOME REACTION TO THE OPINIONS EXPRESSED BY THE REPORTS COMMITTEE . THE SUMMARY NATURE OF THE DECISION , WHICH LIMITS ITSELF TO REFERRING TO THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD AND TO THE OPINION OF THE REPORTS COMMITTEE DID NOT PERMIT THE APPLICANT TO PREPARE HIS COMPLAINT AND HIS ACTION . THE COMPLAINT RECEIVED NO MORE THAN A PURELY FORMAL REPLY IN THE LETTER OF 28 SEPTEMBER 1983 . FOR ALL THOSE REASONS , THE DECISION REFUSING TO ESTABLISH THE APPLICANT DOES NOT MEET THE REQUIREMENT LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS , ACCORDING TO WHICH : ' ANY DECISION ADVERSELY AFFECTING AN OFFICIAL SHALL STATE THE GROUNDS ON WHICH IT IS BASED ' .

14 THAT BEING THE NATURE OF THE CONTESTED MEASURE , THE DECISION OF 23 MARCH 1983 , BY REFERRING BOTH TO THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD AND THE OPINION OF THE REPORTS COMMITTEE , CONTAINS AN ABUNDANT STATEMENT OF THE GROUNDS ON WHICH IT IS BASED , PERMITTING THE APPLICANT TO UNDERSTAND PERFECTLY THE REASONS FOR WHICH THE ECONOMIC AND SOCIAL COMMITTEE REFUSED TO ESTABLISH HIM . REGARD BEING HAD TO THE WIDE DISCRETION WHICH THE APPOINTING AUTHORITY HAS IN SUCH A CASE , THE LATTER WAS UNDER NO OBLIGATION TO JUSTIFY ITSELF TO THE APPLICANT SINCE THE PURPOSE OF THE DECISION WAS NOT TO DEPRIVE THE APPLICANT OF EMPLOYMENT BUT TO DECIDE WHETHER HE HAD DEMONSTRATED THE CAPACITIES NECESSARY FOR THE POST HE WISHED TO OBTAIN . THE LONG ALTERCATIONS BETWEEN THE ADMINISTRATIVE AUTHORITIES AND THE APPLICANT , WHICH MAY BE CLEARLY SEEN FROM THE FILE , SHOW THAT HE WAS PERFECTLY WELL AWARE OF THE OBJECTIONS RAISED TO HIS ESTABLISHMENT AND THEREFORE WAS IN A POSITION FULLY TO DEFEND HIS INTERESTS .

15 THAT SUBMISSION MUST THEREFORE BE REJECTED .

SUBMISSIONS ALLEGING THAT IT WAS IMPOSSIBLE FOR THE APPLICANT TO SERVE HIS PROBATIONARY PERIOD UNDER NORMAL CONDITIONS

16 THE APPLICANT CLAIMS THAT HE WAS NOT ABLE TO SERVE THE PROBATIONARY PERIOD REQUIRED BY ARTICLE 34 OF THE STAFF REGULATIONS UNDER NORMAL CONDITIONS . HE EXPLAINS FIRST THAT IN FACT , HIS PROBATIONARY PERIOD DID NOT LAST FOR THE NINE MONTHS REQUIRED BY THE STAFF REGULATIONS . IF HIS LEAVE , THE HOLIDAY PERIODS WHEN WORK WAS SLACK AND THE PERIOD BETWEEN THE DRAFTING OF THE REPORT AND THE END OF THE PROBATIONARY PERIOD ARE ADDED TOGETHER , MR PATRINOS CONSIDERS THAT HIS EFFECTIVE PROBATIONARY PERIOD LASTED IN REALITY ONLY A LITTLE MORE THAN HALF THE TIME REQUIRED BY THE STAFF REGULATIONS . SECONDLY , THE APPLICANT CONSIDERS THAT THE ADMINISTRATION SHOULD HAVE WARNED HIM TOWARDS THE MIDDLE OF HIS PROBATIONARY PERIOD IN ACCORDANCE WITH ESTABLISHED PRACTICE IF IT CONSIDERED HIS SERVICES UNSATISFACTORY . FINALLY , HE CONTESTS THE SUBSTANCE OF THE ASSESSMENTS MADE OF HIM BY THE AUTHOR OF THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD . THOSE ASSESSMENTS ARE BASED ON THE EXCESSIVE DEMANDS MADE BY THE DIRECTOR AND IGNORE THE DIFFICULTIES OF ADAPTATION FACED BY A CANDIDATE WHO HAD BEEN ASSIGNED IMPORTANT TASKS EVEN THOUGH HE HAD NO PRIOR EXPERIENCE OF COMMUNITY AFFAIRS . THE ASSESSMENTS IN QUESTION ALSO TAKE NO ACCOUNT OF THE REFUSAL TO PROVIDE HIM WITH THE NECESSARY MEANS TO DO HIS WORK . THE APPLICANT POINTS OUT IN PARTICULAR THAT HE DID NOT HAVE A SUITABLE OFFICE AND THAT HE WAS REFUSED STAFF CORRESPONDING TO HIS POSITION AS HEAD OF THE SECRETARIAT AND AS PROVIDED FOR IN THE DETAILED LIST OF POSTS OF THE ECONOMIC AND SOCIAL COMMITTEE . FURTHERMORE , THE APPLICANT COMPLAINS THAT HIS FATE ULTIMATELY DEPENDED ON ASSESSMENTS MADE BY A SINGLE REPORTING OFFICER , NAMELY HIS DIRECTOR . HE ASKS WHY THE HEAD OF DIVISION , IN WHOSE CARE HE HAD BEEN PLACED DURING THE PROBATIONARY PERIOD , WAS NOT ASKED TO PRESENT HIS ASSESSMENT IN THE REPORT AT THE EXPIRY OF THE PROBATIONARY PERIOD WHICH IS THE CAUSE OF HIS DISMISSAL .

17 THE ECONOMIC AND SOCIAL COMMITTEE DEFENDS ITSELF AGAINST THOSE COMPLAINTS BY CONTENDING THAT THE LENGTH OF THE PROBATIONARY PERIOD MET THE REQUIREMENTS OF THE STAFF REGULATIONS AND THAT IT WAS FOR THE APPLICANT TO TAKE ADVANTAGE OF IT TO MAKE HIMSELF FAMILIAR WITH THE WORK . WITH REGARD TO THE WARNING WHICH , IT IS CLAIMED , SHOULD HAVE BEEN ADDRESSED TO THE APPLICANT TOWARDS THE MIDDLE OF HIS PROBATIONARY PERIOD , THE ECONOMIC AND SOCIAL COMMITTEE DENIES THAT THERE IS ANY CUSTOM OF THAT SORT . IT DRAWS ATTENTION TO THE FACT THAT ALL THROUGH THE PROBATIONARY PERIOD , THE DIRECTOR CONTINUALLY DREW THE APPLICANT ' S ATTENTION TO HIS SHORTCOMINGS , AS IS SHOWN BY THE MANY MEMORANDA IN WHICH MR PATRINOS JUSTIFIES HIS BEHAVIOUR .

18 WITH REGARD TO THE SUBSTANCE OF THE ASSESSMENTS MADE OF MR PATRINOS ' S QUALIFICATIONS , THE ECONOMIC AND SOCIAL COMMITTEE EMPHASIZES THAT IT IS FREE TO ASSESS AS IT SEES FIT THE CAPACITIES OF THE OFFICIALS WHOM IT PROPOSES TO RECRUIT . IT POINTS OUT THAT THE MEMBERS OF THE REPORTS COMMITTEE , IN SPITE OF THEIR CRITICISMS OF THE DIRECTOR ' S METHODS AND IN SPITE OF THE FACT THAT THEY WERE DIVIDED WHEN IT CAME TO A VOTE , NONE THE LESS AGREED IN EXPRESSING DOUBTS AS TO MR PATRINOS ' S QUALIFICATIONS HAVING REGARD TO THE REQUIREMENTS OF THE POST WHICH HE SOUGHT . THE ECONOMIC AND SOCIAL COMMITTEE POINTS OUT THAT THREE MEMBERS OF THE REPORTS COMMITTEE APPROVED THE APPLICANT ' S DISMISSAL WHILST THREE OTHERS RECOGNIZED THAT HE HAD NOT DEMONSTRATED THAT HE HAD THE NECESSARY CAPACITIES FOR THE POST TO WHICH HE HAD BEEN ASSIGNED , NAMELY THAT OF HEAD OF THE SECRETARIAT OF THE ECONOMIC AND FINANCIAL QUESTIONS SECTION , AND , FOR THAT REASON , THEY RECOMMENDED THAT HE BE ASSIGNED TO ANOTHER DEPARTMENT .

26 IT IS FOR THE ECONOMIC AND SOCIAL COMMITTEE , IN ACCORDANCE WITH ARTICLE 176 OF THE EEC TREATY , TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THIS JUDGMENT BY ALLOWING THE APPLICANT THE OPPORTUNITY TO SERVE A SECOND PROBATIONARY PERIOD , AFTER WHICH A FRESH ASSESSMENT OF HIS QUALIFICATIONS MUST BE MADE .

COSTS

27 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . THE ECONOMIC AND SOCIAL COMMITTEE IS ACCORDINGLY ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) ANNULS DECISION NO 146/83 A OF THE PRESIDENT OF THE ECONOMIC AND SOCIAL COMMITTEE DISMISSING THE APPLICANT AT THE END OF HIS PROBATIONARY PERIOD ;

( 2)ORDERS THE ECONOMIC AND SOCIAL COMMITTEE TO PAY THE COSTS .