Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The applicant in the action with which the Court is today concerned was a successful candidate in Open Competition No CES/A/25/80 held by the Economic and Social Committee, defendant in the present proceedings, for the purpose of constituting a reserve list for the recruitment of Greeklanguage Principal Administrators. With effect from 1 July 1982, he was appointed as a probationary official, on the basis of Notice of Competition No 8/82, to Grade A 5, Step 3, and assigned to Directorate A of the Economic and Social Committee (which deals with the Committee's advisory work). He was placed in charge of the secretariat of the section for economic and financial questions. In that capacity, he was apparently under the direct authority of the head of Directorate A. However, at the beginning of September 1982, the latter directed the head of division immediately subordinate to him to guide Mr Patrinos and his colleague through the preparation of section and study-group meetings, and that took place upon the return of the applicant from three weeks' leave on 22 September 1982.

On 22 February 1983, the head of Directorate A, who none the less remained the applicant's immediate superior, prepared the report on the applicant's performance during his probationary period provided for in Article 34 of the Staff Regulations. That report was largely negative. It answered in the negative the question of whether the applicant had demonstrated the necessary qualities for appointment as an official. Moreover, the reporting officer expressly stated in a covering note of 28 February 1983 to the General Secretary of the Economic and Social Committee that he could not recommend the applicant for establishment.

The applicant took note of the report on 7 March 1983 and since he did not agree with its conclusions, asked that the matter be submitted to the Reports Committee established to deal with such cases.

That committee, composed of seven officials (of whom three apparently belonged to Directorate A), examined documents submitted by the applicant and by the reporting officer, interviewed them along with a number of other persons and gave its decision on 22 March 1983. One member apparently did not take part in the deliberation. I will return later to that opinion.

The President of the Economic and Social Committee then decided in a decision of 23 March 1983 referring to the fact that it was clear from the report at the expiry of the probationary period and the opinion of the Reports Committee that the applicant's work has not proved adequate for establishment in his post, that the applicant was to be dismissed at the end of his probationary period (31 March 1983).

The applicant submitted a formal complaint against that decision on 17 June 1983. One of the requests made therein, namely that he be allowed to serve a further probationary period because his initial probationary period had not been served under normal conditions, was repeated in a letter to the President of the Economic and Social Committee dated 29 July 1983. That request was however unsuccessful. In a decision of

28 September 1983, the President of the Economic and Social Committee stated that the probationary period had been served under the conditions laid down in the Staff Regulations and that the plaintiff's complaint must therefore be rejected.

Mr Patrinos then applied to the Court of Justice on 4 January 1984, claiming that the Court should:

Matters did not rest there however since the applicant's legal representative explained at the oral procedure that the latter two claims were being dropped. They could only be considered after the expiry of a new probationary period and if appropriate the plaintiff's retroactive appointment.

We have thus only to decide on the question of whether the sole remaining claim, that is to say, the claim for annulment, is well founded or if, as the defendant contends, it must be dismissed.

The applicant advanced four grounds in support of his claim:

1. With regard to his first complaint, the applicant explained in detail that the decision dismissing him stated no specific reason justifying such a step. The reference to the report at the expiry of the probationary period and the opinion of the Reports Committee meet only in the formal sense the requirement to state the reasons on which the decision was based and that cannot be sufficient for the purposes of Article 25 of the Staff Regulations. What was in fact required was for the appointing authority to reject the applicant's comments on the report prepared at the expiry of his probationary period and deal in detail with the opinion of the Reports Committee, which the applicant contends was favourable to him.

2. As the Court will recall, the applicant also claims in connection with his second complaint that the probationary period did not take place under normal conditions. He claims, inter alia, that the tasks assigned to him at the beginning of the probationary period were not precisely defined; the director under whose authority he worked did not give him any clear instructions later but rather gave him partly contradictory ones; the applicant's own subordinate, an official in Grade A 7, was unable to help him because the applicant's superior gave him instructions direct; the applicant's sectretary was only partly at his own disposal and he did not have an office of his own but had to share an office with his colleague, which considerably disturbed his work. If that is correct, then the way in which the probationary period was organized cannot in fact be regarded as unexceptionable. Nor can it be excluded that the applicant's performance was considerably affected as a result and that if the probationary period had been served under different conditions, in particular if he had received more guidance and if more patience had been showed towards him, his work would have been such that his performance as a whole could have been regarded as positive.

3. Without going into any of the plaintiff's other claims (and it is doubtful whether they are well founded inasmuch as they claim that the probationary period was for various reasons too short, or inasmuch as the view is expressed that the applicant should have been given a clear indication half way through his probationary period that the report on him was likely to be negative), it must therefore be found that the decision to dismiss the applicant cannot be valid because the competent Reports Committee did not accept that the report at the expiry of the probationary period on which the decision is based was well founded and also because it must be concluded that the probationary period did not take place under proper conditions. The only further conclusion that may be drawn from that is that the applicant must be given a further opportunity to demonstrate his capabilities during a properly-organized probationary period (something which, because the post in question has not been definitively filled, is not ruled out by any organizational difficulties).

I therefore propose that the Court grant the sole remaining claim for the annulment of the decision of 23 February 1983. That result would mean that the applicant has essentially been successful in his application. The defendant should therefore be ordered to pay the costs.

1 Translated from the German.

2 Judgment of 28 September 1983 in Case 131/82 Enrico Angelini v Commission [1983] ECR 2801.

3 Judgment of 14 July 1983 in Case 176/82 Théo Nebe v Commission [1983] ECR 2475.

4 Judgment of 21 June 1984 in Case 69/83 Charles Lux v Court of Auditors of the European Communities [1984] ECR 2447.

5 Judgment of 12 January 1984 in Case 266/82 Mariette Turner, née Krecké v Commission [1984] ECR 1.