Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
OFFICIALS - ASSIGNMENT - INTEREST OF THE SERVICE - PRINCIPLE GOVERNING ADMINISTRATIVE ACTION - SCOPE
( STAFF REGULATIONS OF OFFICIALS , ART . 7 )
Summary
ARTICLE 7 OF THE STAFF REGULATIONS , 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 AGREEMENT OF OFFICIALS .
Parties
IN CASE 346/82
PIERRE FAVRE , A FORMER TEMPORARY EMPLOYEE OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 3 RUE MAURICE-BARRES , 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 MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,
Subject of the case
APPLICATION PRIMARILY FOR THE ANNULMENT OF THE APPLICANT ' S DISMISSAL OF 4 NOVEMBER 1982 ,
Grounds
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 ' ' .
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 OF 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 UNSATISFACTORY ' ' . 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 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 DG 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 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 AUTHORIZED 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 GMELIN , 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 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 UNSATISFACTORY 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 .
14 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 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 RELIES 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 FEBRUARY 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 UNDER A ' ' PURE ' ' , CONTRACT 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 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 CANDIDATES 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 INADEQUATE 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 TERMINATING 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 .
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 .
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 .
Decision on costs
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 .
Operative part
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
Full & Egal Universal Law Academy