61981J0206

OFFICIALS - RECRUITMENT - PROBATIONARY PERIOD - DISMISSAL - PROCEDURE - ADVERSARY NATURE - DECISION TO DISMISS - GROUNDS BASED UPON UNFAVOURABLE OBSERVATIONS NOT PREVIOUSLY COMMUNICATED TO THE OFFICIAL CONCERNED - ILLEGALITY

( STAFF REGULATIONS , ART . 34 ( 2 ))

A DECISION BY THE APPOINTING AUTHORITY TO DISMISS A PROBATIONARY OFFICIAL AT THE END OF THE PROBATIONARY PERIOD ON THE BASIS OF OBSERVATIONS SUPPLIED BY VARIOUS OFFICIALS FOR THE PURPOSE OF SUPPLEMENTING THE PROBATION REPORT , WHICH , ALTHOUGH REFLECTING UNFAVOURABLY ON THE OFFICIAL CONCERNED , WERE NOT PREVIOUSLY COMMUNICATED TO HIM , CONSTITUTES A FAILURE TO OBSERVE THE ADVERSARY PROCEDURE LAID DOWN IN ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS . SUCH A DECISION MUST BE ANNULLED BECAUSE THE GROUNDS UPON WHICH IT IS BASED WERE ESTABLISHED BY A PROCEDURE WHICH WAS NOT OF AN ADVERSARY NATURE , SINCE THE PROBATIONARY OFFICIAL WAS PRECLUDED FROM GIVING HIS COMMENTS ON ALL THE COMPLAINTS MADE AGAINST HIM WHICH LED TO THE DECISION TO DISMISS HIM .

IN CASE 206/81 R ,

JOSE ALVAREZ , A PROBATIONARY OFFICIAL OF THE EUROPEAN PARLIAMENT , OF 83 RUE DE LA SEMOIS , LUXEMBOURG , REPRESENTED BY VICTOR BIEL , 18A RUE DES GLACIS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY MARTIN SCHMIDT , DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS , ACTING AS AGENT ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF A PROBATION REPORT AND OF THE SUBSEQUENT DECISION TO DISMISS THE APPLICANT ,

1 ACCORDING TO ARTICLE 185 OF THE TREATY ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . HOWEVER , THE COURT MAY , IF IT THINKS THAT THE CIRCUMSTANCES SO REQUIRE , ORDER THE SUSPENSION OF THE OPERATION OF THE CONTESTED DECISION . IT MAY ALSO PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURE .

2 ARTICLE 91 ( 4 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES PROVIDES THAT AN OFFICIAL MAY , AFTER SUBMITTING A COMPLAINT TO THE APPOINTING AUTHORITY PURSUANT TO ARTICLE 90 ( 2 ), IMMEDIATELY FILE AN APPEAL WITH THE COURT OF JUSTICE , PROVIDED THAT SUCH APPEAL IS ACCOMPANIED BY AN APPLICATION EITHER FOR A STAY OF EXECUTION OF THE CONTESTED ACT OR FOR THE ADOPTION OF INTERIM MEASURES .

3 BY LETTER OF 19 JUNE 1981 THE SECRETARY GENERAL OF THE EUROPEAN PARLIAMENT INFORMED JOSE ALVAREZ , A PROBATIONARY OFFICIAL OF THE PARLIAMENT , THAT IN VIEW OF THE UNFAVOURABLE PROBATION REPORT MADE IN RESPECT OF HIM HE WOULD BE DISMISSED ON 15 JULY 1981 .

4 BY AN APPLICATION , REGISTERED ON 8 JULY 1981 , JOSE ALVAREZ BROUGHT AN ACTION UNDER ARTICLE 179 OF THE EEC TREATY SEEKING PRIMARILY THE ANNULMENT OF HIS PROBATION REPORT AND OF THE SUBSEQUENT DECISION TO DISMISS HIM . BY A SEPARATE DOCUMENT , REGISTERED ON THE SAME DAY , MR ALVAREZ MADE AN APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE SEEKING THE SUSPENSION OF THE OPERATION OF THE DECISION TO DISMISS HIM .

5 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT A SUSPENSION OF OPERATION AND A DECISION ORDERING INTERIM MEASURES ARE SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE GRANT OF SUCH MEASURES .

6 ACCORDING TO THE COURT ' S CONSISTENT CASE-LAW MEASURES OF THIS KIND MAY BE ADOPTED BY THE JUDGE HEARING THE APPLICATION FOR SUCH MEASURES IF IT IS ESTABLISHED THAT THEIR ADOPTION IS PRIMA FACIE JUSTIFIED IN FACT AND IN LAW , IF THEY ARE URGENT IN THE SENSE THAT IT IS NECESSARY , IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE , THAT THEY SHOULD BE LAID DOWN , AND SHOULD TAKE EFFECT , BEFORE THE DECISION OF THE COURT ON THE SUBSTANCE OF THE ACTION AND IF THEY ARE PROVISIONAL IN THE SENSE THAT THEY DO NOT PRE-JUDGE THE DECISION ON THE SUBSTANCE OF THE CASE , THAT IS TO SAY THAT THEY DO NOT AT THIS STAGE DECIDE DISPUTED POINTS OF LAW OR OF FACT OR NEUTRALIZE IN ADVANCE THE CONSEQUENCES OF THE DECISION TO BE GIVEN SUBSEQUENTLY ON THE SUBSTANCE OF THE ACTION .

7 THE DAMAGE WHICH MAY BE CAUSED TO THE APPLICANT DOES NOT SATISFY THE CONDITIONS SET OUT ABOVE . IN FACT , EVEN ON THE SUPPOSITION THAT HIS ACTION IS WELL FOUNDED THE DAMAGE WHICH WOULD ARISE FROM THE APPLICATION OF THE CONTESTED DECISION DURING THE TIME NECESSARY FOR THE COURT TO DELIVER JUDGMENT COULD BE MADE GOOD BY THE GRANT OF COMPENSATION , INCLUDING , IF APPROPRIATE , IN VIEW OF THE SERIOUS ALLEGATIONS MADE BY THE APPLICANT , THE GRANT OF COMPENSATION FOR NON-MATERIAL DAMAGE .

8 ON THE OTHER HAND , IF THE UNFAVOURABLE STATEMENTS MADE IN THE REPORT DRAWN UP AT THE EXPIRATION OF THE PROBATIONARY PERIOD ARE CORRECT , THE SUSPENSION OF OPERATION OF THE DECISION TO DISMISS THE APPLICANT WOULD REQUIRE THE DEFENDANT TO EMPLOY AND PAY , WITH NO OPPORTUNITY TO RECOUP THE SUMS THUS EXPENDED , AN EMPLOYEE WHOSE PRESENCE IN ITS ADMINISTRATION WOULD BE CONTRARY TO THE INTERESTS OF THE SERVICE .

9 FOR THE REASONS INDICATED ABOVE IT IS THEREFORE IMPOSSIBLE TO GRANT THE MEASURE APPLIED FOR .

10 IN THE CIRCUMSTANCES THE COSTS SHOULD BE RESERVED .

ON THOSE GROUNDS ,

THE PRESIDENT OF THE THIRD CHAMBER ,

BY WAY OF AN INTERLOCUTORY DECISION ,

HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE IS DISMISSED .

2 . COSTS ARE RESERVED .