Avis juridique important

Judgment of the Court (Second Chamber) of 26 February 1981. - Alain de Briey v Commission of the European Communities. - Dismissal of temporary staff. - Case 25/80. European Court reports 1981 Page 00637

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

OFFICIALS - TEMPORARY STAFF - DISMISSAL FOR INCOMPETENCE - OBSERVANCE OF THE PERIOD OF NOTICE STIPULATED IN THE CONTRACT - DISCRETION OF THE ADMINISTRATION - JUDICIAL REVIEW - LIMITS

( CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , ART . 47 ( 2 ))

IT CLEARLY FOLLOWS FROM ARTICLE 47 ( 2 ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS THAT IT LIES WITHIN THE DISCRETION OF THE COMPETENT AUTHORITY TO TERMINATE A CONTRACT CONCLUDED FOR AN INDEFINITE PERIOD , PROVIDED THAT THE PERIOD OF NOTICE STIPULATED IN THE CONTRACT IS GIVEN AND THAT PERIOD IS IN ACCORDANCE WITH THE SAID PROVISION . IN THE CASE OF DISMISSAL FOR INCOMPETENCE THE COURT MAY NOT THEREFORE REVIEW THE BASIS ON WHICH THAT DISCRETION WAS EXERCISED , EXCEPT WHERE A PATENT ERROR OR A MISUSE OF POWER CAN BE PROVED .

IN CASE 25/80

ALAIN DE BRIEY , FORMERLY A TEMPORARY SERVANT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BERGEN ( NOORD-HOLLAND ), REPRESENTED BY E . LEBRUN OF THE BRUSSELS BAR , 68 RUE CAMILLE LEMONNIER , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF T . BIEVER OF THE LUXEMBOURG BAR , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY D . SORASIO , A MEMBER OF ITS LEGAL DEPARTMENT , ASSISTED BY D . JACOB OF THE BRUSSELS BAR , 93 RUE BRILLAT-SAVARIN , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , M . CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION PRIMARILY FOR THE ANNULMENT OF THE DECISION TO DISMISS THE APPLICANT AND OF THE EXPRESS AND IMPLIED DECISIONS REJECTING HIS COMPLAINT OF 27 APRIL 1979 AND , IN THE ALTERNATIVE , FOR THE CLAIMS SET OUT UNDER HEADING II BELOW ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 16 JANUARY 1980 ALAIN DE BRIEY , FORMERLY A TEMPORARY SERVANT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF 1 FEBRUARY 1979 WHEREBY THE COMMISSION DISMISSED THE APPLICANT FOR INCOMPETENCE , GIVING HIM THREE AND A HALF MONTHS ' NOTICE . IN THE ALTERNATIVE , HE CLAIMS THAT HIS DISMISSAL SHOULD BE PREVENTED FROM TAKING EFFECT UNTIL THE COUNCIL HAS TAKEN A DECISION ON A PROPOSAL BY THE COMMISSION FOR A REGULATION PROTECTING TEMPORARY STAFF AGAINST THE RISK OF UNEMPLOYMENT , SICKNESS AND INVALIDITY OR UNTIL COVER AGAINST THOSE RISKS HAS BEEN ARRANGED FOR THE APPLICANT , OR THAT THE COMMISSION SHOULD BE ORDERED TO ADOPT MEASURES WHICH WILL ALLOW HIM TO ENJOY SOCIAL PROTECTION IN ACCORDANCE WITH THAT PROPOSAL OR PROTECTION IN THE FORM TO BE ADOPTED BY THE COUNCIL AS A RESULT OF THAT PROPOSAL . IN THE FURTHER ALTERNATIVE , HE CLAIMS THAT THE PERIOD OF NOTICE SHOULD HAVE BEEN 10 MONTHS AND THAT THE COMMISSION SHOULD BE ORDERED TO PAY HIM COMPENSATION IN RESPECT THEREOF .

2 THE APPLICANT WAS ENGAGED IN 1975 AS A TEMPORARY SERVANT FOR A PERIOD OF TWO YEARS IN THE CAPACITY OF HEAD OF THE ADMINISTRATION AND PERSONNEL DIVISION OF THE JOINT RESEARCH CENTRE ( HEREINAFTER REFERRED TO AS ' ' THE CENTRE ' ' ) IN ISPRA . AS THE WORK PERFORMED BY THE APPLICANT IN HIS POST WAS CONSIDERED UNSATISFACTORY BY HIS SUPERIORS , A FACT WHICH WAS BROUGHT TO HIS ATTENTION , HE WAS TRANSFERRED IN MARCH 1977 TO THE CENTRE IN PETTEN AS HEAD OF THE ADMINISTRATION AND INFRASTRUCTURE DIVISION IN ORDER TO GIVE HIM A FURTHER CHANCE . AT THE SAME TIME HIS CONTRACT WAS RENEWED FOR AN INDEFINITE PERIOD PURSUANT TO ARTICLE 2 ( D ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , A PROVISION WHICH WAS INSERTED AT THAT TIME IN ORDER TO REPLACE THE TERMS OF EMPLOYMENT LAID DOWN BY THE STAFF REGULATIONS FOR STAFF PAID FROM THE RESEARCH AND INVESTMENT APPROPRIATIONS .

3 FOLLOWING CONVERSATIONS WITH THE APPLICANT , THE DIRECTOR OF THE CENTRE IN PETTEN CRITICIZED HIM IN A MEMORANDUM OF 31 JANUARY 1978 FOR THE MANNER IN WHICH HE HAD PERFORMED HIS DUTIES AND REQUESTED HIM TO ' ' TAKE THE DIVISION IN HAND ' ' . FOLLOWING A WRITTEN DENIAL OF THOSE ASSERTIONS , THE APPLICANT LEFT TOWARDS THE MIDDLE OF FEBRUARY FOR THE UNITED STATES WHERE HE REMAINED ON MISSION UNTIL THE BEGINNING OF SEPTEMBER . DURING THAT STAY THE APPLICANT WAS THE VICTIM OF AN ARMED ASSAULT AND SUFFERED A PARTIAL PERMANENT INVALIDITY OF 27% FOR WHICH HE WAS COMPENSATED PURSUANT TO ARTICLE 73 OF THE STAFF REGULATIONS WHICH APPLIES TO OFFICIALS AND OTHER SERVANTS .

4 ON HIS RETURN THE APPLICANT HAD A FURTHER PERSONAL CONVERSATION , ON THIS OCCASION WITH THE DIRECTOR-GENERAL OF THE CENTRE , WHICH WAS FOLLOWED BY AN EXCHANGE OF MEMORANDA FROM WHICH IT IS CLEAR THAT HIS WORK WAS STILL CONSIDERED UNSATISFACTORY . FINALLY , BY A LETTER DATED 1 FEBRUARY 1979 HIS CONTRACT OF EMPLOYMENT WAS TERMINATED WITH THREE AND A HALF MONTHS ' NOTICE , BUT THIS WAS POSTPONED UNTIL 15 AUGUST 1979 ON ACCOUNT OF ILLNESS .

THE PRINCIPAL CLAIM

5 IN SUPPORT OF HIS CLAIM FOR THE ANNULMENT OF THE DECISION THE APPLICANT SUBMITS FIRST THAT THE DECISION TO DISMISS HIM IS VITIATED BOTH BY AN ERROR OF LAW AND BY AN ERROR OF FACT INASMUCH AS IT IS NOT SUPPORTED BY A STATEMENT OF REASONS AND IS BASED ON AN ASSESSMENT OF THE APPLICANT ' S WORK WHICH HE CHALLENGES AND IN RESPECT OF WHICH THE BURDEN OF PROOF LIES ON THE COMMISSION . IN THIS REGARD HE STRESSES IN PARTICULAR THAT HE WAS NOT GIVEN THE NECESSARY TIME AFTER HIS RETURN FROM THE UNITED STATES TO DEMONSTRATE AN IMPROVEMENT IN HIS WORK AND THEREBY COMPLY WITH THE REQUEST TO TAKE THE DIVISION IN HAND , A REQUEST WHICH WAS CONTAINED IN THE MEMORANDUM OF 21 JANUARY 1978 AND WHICH , IN THE APPLICANT ' S VIEW MEANT THAT THE DISMISSAL MIGHT NOT BE BASED ON HIS PREVIOUS WORK . FURTHERMORE , THE COMMISSION CANNOT RELY ON INCOMPETENCE AS A MANAGER ON THE PART OF THE APPLICANT , BECAUSE THE DIRECTOR OF THE CENTRE IN PETTEN ' ' SHORT-CIRCUITED ' ' HIM BY DEALING DIRECTLY WITH THE APPLICANT ' S SUBORDINATES AND BECAUSE THE COMMISSION FAILED TO FULFIL ITS OBLIGATION TO ASSIST HIM BY NOT ENROLLING HIM ON THE MANAGEMENT TRAINING COURSE WHICH IT ORGANIZED .

6 IN ADDITION , THE APPLICANT SUBMITS THAT THE DECISION IS VITIATED BY A PROCEDURAL FLAW INASMUCH AS HE DID NOT HAVE THE OPPORTUNITY TO DEFEND HIMSELF ON THE CONDITIONS ENJOYED BY OFFICIALS UNDER ARTICLE 51 OF THE STAFF REGULATIONS AND ANNEX IX THERETO , WHICH , IN VIEW OF THE FACT THAT HE HELD A POST WHICH IN OTHER SPHERES OF COMMUNITY WORK WOULD BE HELD BY AN OFFICIAL , APPLY BY ANALOGY OR BY VIRTUE OF THE PRINCIPLE OF RESPECT FOR THE RIGHTS OF THE DEFENCE AND THE PRINCIPLE OF EQUALITY .

8 THE FACTS AND ARGUMENTS PUT FORWARD BY THE APPLICANT MAKE NO SUGGESTION THAT SUCH WAS THE CASE . NOTWITHSTANDING THE REQUEST TO TAKE THE DIVISION IN HAND SENT TO THE APPLICANT BY HIS IMMEDIATE SUPERIOR ON A CERTAIN DATE , THE COMPETENT AUTHORITY , IN ORDER TO COME TO A DECISION ON HIS DISMISSAL , WAS ABLE AND OBLIGED TO TAKE INTO CONSIDERATION THE ENTIRE CAREER OF THE PERSON CONCERNED , INCLUDING THE PERIOD PRIOR TO THAT WARNING . WITH REGARD TO THE SO-CALLED ' ' SHORT-CIRCUITING ' ' , IT HAS NOT BEEN ESTABLISHED THAT IN HIS DIRECT DEALING WITH THE APPLICANT ' S SUBORDINATES THE DIRECTOR EXCEEDED WHAT HE MIGHT REASONABLY CONSIDER NECESSARY IN ORDER TO REMEDY A SITUATION CAUSED BY THE APPLICANT ' S OWN INCOMPETENCE . MOREOVER , THE COMPETENT AUTHORITY WAS AWARE OF THE APPLICANT ' S ARGUMENT ON THAT POINT WHEN IT TOOK THE DECISION TO DISMISS HIM . FINALLY , THE ADMINISTRATION CANNOT BE CRITICIZED FOR FAILING TO ENROL THE APPLICANT ON A COURSE WHEN HE DID NOT ASK TO BE ENROLLED AND WHEN THE COURSE WAS ON A SUBJECT WITH WHICH HE SHOULD HAVE BEEN FAMILIAR .

9 AS REGARDS THE APPLICANT ' S ARGUMENTS REGARDING PROCEDURE BASED ON THE STAFF REGULATIONS OF OFFICIALS , IT MUST BE REMEMBERED THAT THE PROVISIONS OF THE STAFF REGULATIONS WHICH APPLY BY ANALOGY TO OTHER SERVANTS ARE EXPRESSLY LISTED IN THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS . ARTICLE 51 OF THE STAFF REGULATIONS AND ANNEX IX THERETO ARE NOT INCLUDED IN THAT LIST . MOREOVER , IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT THE APPLICANT HAD EVERY OPPORTUNITY DURING THE PERSONAL CONVERSATIONS AND NUMEROUS EXCHANGES OF MEMORANDA TO PUT FORWARD ARGUMENTS IN HIS DEFENCE . FOR THE SAME REASON THE APPLICANT CANNOT COMPLAIN THAT THE DECISION ITSELF FAILED TO SET OUT THE REASONS ON WHICH IT WAS BASED ; SUCH A FAILURE WAS IN ANY CASE JUSTIFIED BY VIRTUE OF THE DISCRETION WHICH ARTICLE 47 ( 2 ) CONFERS ON THE COMPETENT AUTHORITY .

10 IT FOLLOWS THAT THE PRINCIPAL CLAIM MUST BE DISMISSED .

THE ALTERNATIVE CLAIM

11 IN SUPPORT TO THIS CLAIM THE APPLICANT POINTS OUT THAT HE DOES NOT ENJOY ADEQUATE COVER AGAINST THE RISKS OF SICKNESS , INVALIDITY AND UNEMPLOYMENT , EVEN THOUGH THE COMMISSION HAS MADE A PROPOSAL TO THE COUNCIL FOR THE AMENDMENT OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS IN THAT RESPECT . IN THE ABSENCE OF WRITTEN PROVISIONS TO THAT EFFECT IT IS ARGUED THAT THE ADMINISTRATION SHOULD TAKE APPROPRIATE STEPS IN ORDER TO INSURE THE APPLICANT AGAINST SUCH RISKS IN PURSUANCE OF THE GENERAL PRINCIPLE OF EQUITY AND SOCIAL SECURITY AND BY VIRTUE OF ITS DUTY TO ASSIST OFFICIALS UNDER ARTICLE 24 OF THE STAFF REGULATIONS , A DUTY WHICH IS STATED TO APPLY BY ANALOGY TO OTHER SERVANTS . EVEN IF SUCH A DUTY DOES NOT EXIST , THE DEFENDANT IS ALLEGED TO BE RESPONSIBLE FOR THAT DEFICIENCY IN THE LAW .

12 IN THIS CONNEXION IT MUST BE REMEMBERED THAT COUNCIL REGULATION ( ECSC , EEC , EURATOM ) NO 2615/76 OF 21 OCTOBER 1976 AMENDING REGULATION ( EEC , EURATOM , ECSC ) NO 259/68 AS REGARDS THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL 1976 , L 299 , P . 1 ) MADE IT POSSIBLE IN THE FIELDS OF RESEARCH AND INVESTMENT TO EMPLOY TEMPORARY SERVANTS FOR AN INDEFINITE PERIOD AND TO REQUIRE THEM TO PERFORM DUTIES WHICH IN OTHER FIELDS OF COMMUNITY WORK ARE CARRIED OUT BY OFFICIALS . THAT REGULATION , WHICH , ACCORDING TO THE THIRD RECITAL IN THE PREAMBLE , IS NOT UNDER ANY CIRCUMSTANCES TO CONSTITUTE A PRECEDENT WITH REGARD TO EMPLOYMENT IN THE EUROPEAN PUBLIC SERVICE , HAS MADE FLEXIBLE ADMINISTRATION POSSIBLE IN THOSE FIELDS , WHICH MAY BE READILY ADAPTED TO THE VARIED NEEDS OF THE SERVICE AND THE AVAILABLE FINANCIAL RESOURCES . HOWEVER , ALTHOUGH THESE TEMPORARY SERVANTS PERFORM THE SAME DUTIES AS THOSE OTHERWISE ENTRUSTED TO OFFICIALS , THEY DO NOT ENJOY THE SAME SECURITY OF EMPLOYMENT .

13 IN THAT RESPECT IT CERTAINLY SEEMS REGRETTABLE THAT THE COMMUNITY AUTHORITIES HAVE NOT YET SUCCEEDED IN ESTABLISHING IN FAVOUR OF SUCH STAFF A SOCIAL SECURITY SCHEME WHICH INCLUDES INSURANCE AGAINST THE RISK OF UNEMPLOYMENT . NEVERTHELESS , THE EXISTENCE OF SUCH A DEFICIENCY CONSTITUTES A REASON NEITHER TO POSTPONE THE APPLICANT ' S DISMISSAL NOR TO SET UP IN HIS FAVOUR AN AD HOC SCHEME MODELLED ON A PROPOSAL FOR A REGULATION UPON WHICH THE COUNCIL HAS NOT YET ACTED . SINCE THE APPLICANT WAS AWARE , OR OUGHT TO HAVE BEEN AWARE , OF THE ABSENCE OF SUCH INSURANCE WHEN HE WAS ENGAGED AS A TEMPORARY SERVANT , SUCH A DEFICIENCY CANNOT PROVIDE THE BASIS OF A CLAIM FOR COMPENSATION EITHER .

14 THE ALTERNATIVE CLAIM MUST THEREFORE BE REJECTED .

THE CLAIM MADE IN THE FURTHER ALTERNATIVE

15 BY THIS CLAIM THE APPLICANT SUBMITS THAT , IN VIEW OF THE FACT THAT THE TERMINATION OF A CONTRACT CONCLUDED FOR AN INDEFINITE PERIOD IS AN EXCEPTIONAL OCCURRENCE , THE PERIOD OF NOTICE SHOULD HAVE BEEN THE MAXIMUM , THAT IS TO SAY 10 MONTHS .

16 WITH REGARD TO NOTICE , ARTICLE 47 ( 2 ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS REFERS TO THE TERMS OF THE INDIVIDUAL CONTRACT , WHILST LAYING DOWN MINIMUM LIMITS AND PROVIDING FOR THE SUSPENSION OF THE PERIOD OF NOTICE FOR A MAXIMUM OF THREE MONTHS IN THE EVENT OF SICK LEAVE , A PROVISION WHICH WAS APPLIED IN THE APPLICANT ' S CASE .

17 IN THE APPLICANT ' S CONTRACT THE PERIOD OF NOTICE WAS STIPULATED IN ACCORDANCE WITH THE MINIMUM REQUIREMENTS LAID DOWN BY ARTICLE 47 AND THE NOTICE GIVEN TO THE APPLICANT CORRESPONDED TO THE TERMS OF THE CONTRACT . THUS THE COMPETENT AUTHORITY CANNOT BE CRITICIZED FOR HAVING COMPLIED WITH THOSE PROVISIONS .

18 FOR ALL THESE REASONS THE APPLICATION MUST BE DISMISSED IN ITS ENTIRETY .

19 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

20 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

21 HOWEVER , ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT IN STAFF CASES THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .