In Case 10/55
MIRANDA MIROSSEVICH, represented by Professor Federico A. Perini-Bembo, of the Trieste Bar, Advocate of the Corte di Cassazione, and other superior courts, with an address for service in Luxembourg at 83, Rue de la Semois,
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, represented by its Legal Adviser, Professor Giulio Pasetti, acting as Agent, with an address for service in Luxembourg at its offices, 2 Place de Metz,
Application for the revocation and amendment of certain internal administrative measures of the High Authority relating to the applicant,
THE COURT
composed of: M. Pilotti, President, J. Rueff and O. Riese (Presidents of Chambers), P. J. S. Serrarens, L. Delvaux, Ch. L. Hammes and A. van Kleffens, Judges,
Advocate General: M. Lagrange
Registrar: A. Van Houtte
gives the following
On
Alternatively … a proper definition of her position giving her the grade which she claims (second category);
In any event: recognition of her entitlement to compensation reflecting the difference between the salary paid and that of staff of the second category;
An order that the defendant must pay the costs
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the defendant asks that the Court should:
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By order dated
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Recognize the application lodged on
and in the first place
Grant the substance, that is to say,
Declare that Miss Mirossevich was permanently and definitively engaged on
Declare Miss Mirossevich entitled to rein statement in her career bracket and back payment of salary ;
Alternatively:
Grant in part the substance of the claim, that is to say:
Declare that Miss Mirossevich was engaged on a trial basis on
Declare that the trial took place only partially between December 1952 and January 1953 and was completed favourably after subsequent linguistic services rendered by Miss Mirossevich on a number of separate occasions after
Recognize the right of Miss Mirossevich to reinstatement in her career bracket as from
In any event:
Declare that the pseudo-contract of
Recognize that the applicant is entitled to the back payment of the difference between what has been paid to her and the sum to which she was originally recognized as being entitled on the basis of the salary of 1952;
Grant Miss Mirossevich damages for non-material injury;
Recognize that the applicant is entitled to a definitive contract (according to the rules in force) as interpreter/translator or at least in accordance with her ability, with the category in which she was originally engaged and with her ability and capacity shown over three years and with the services she has rendered;
Order the High Authority to bear the costs of the present application a statement of which will be produced in due course
By order dated
This was lodged at the Registry on
In the rejoinder the defendant contended that the Court should:
Order the applicant to bear the costs
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On
By order dated
By order dated
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By order dated
The hearing of witnesses by the Chamber took place on
The Chamber fixed a time-limit expiring on
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On
The two above-mentioned orders were read in open court on
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By order dated
The observations of the High Authority were submitted on
By order dated
At the hearing in open court on
The decision of
The oral contract of
An allowance be granted to Miss Mirossevich as compensation for the damage suffered by her as a result of the delay by the High Authority in performing its obligations entered into with regard to her, the amount of which the Advocate General left to the discretion of the Court;
All other claims in the application be dismissed;
The costs be borne by the High Authority save those incurred by the application contesting the authenticity of documents, which should be borne by Miss Mirossevich.
Following an examination on
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In February 1953 a provisional contract was drawn up for the applicant as an
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In the defence the defendant states that the application is
The applicant counters that her constant protests rule out any acceptance on her part.
She was introduced to the language department of the High Authority by an official of the Italian Legation and was immediately engaged on a definitive basis.
The appointment of the applicant was not made only on an oral basis; it was confirmed by several documents such as the individual record sheet, the notification from the head of the department of
The short oral examination taken by the applicant at the Ministry for Foreign Affairs could not give her any right to be engaged by the Community and could not in any way bind the institutions of the Community.
Appointment to a post with a public authority can never be effected on an oral basis. Such appointment depends further on the discretionary assessment by the Administration of the results of the trial which the applicant undergoes.
During this short period no observation was made on the quality of the applicant's work. Further, assuming a probationary period, the applicant ought at least to have been heard before a final step was taken with regard to her. Her unsuitability ought to have been determined by due process.
Further, it is solely for the administration to assess ability.
With regard to the fact that only a little work was entrusted to the applicant, the defendant stresses that it was not necessary to have numerous and repeated tests.
With regard to the complaint that no observations were made to the applicant at the time with regard to the quality of her work, the defendant considers that there is here a confusion with the disciplinary procedure in the more general sense. This requires that the person concerned should be warned and given an opportunity to defend himself but prior notification is never required when it is a question of a judgment on the ability of staff.
The only reason that the applicant was dismissed is that the reviser in the Italian section wished to replace the applicant by this friend; it was this reviser who assessed the applicant's ability. After giving her no work at all he proposed that she should be transferred, asserting, without any proof in support, that the result of the purported trial period was negative and this without any proper check.
The applicant cites several witnesses in support of the facts which she alleges.
The defendant claims further to be in a position to prove by documents the applicant's patent unsuitability to do the work of translator. Finally it considers it not permissible to seek to prove a misuse of powers solely on the basis of statements of witnesses.
The Court has jurisdiction in the present case on the basis of Article 42 of the Treaty in conjunction with the second paragraph of Article 12 of the letter of appointment dated
The defendant contests the admissibility of the application because it is out of time and because the applicant has tacitly accepted the measures taken in respect of her.
The Court finds against the allegation that the application is out of time since no time-limit is specified in any provision applicable in this case either for a complaint through official channels or for an application to the Court. The Court rejects the defendant's argument that a time-limit similar to that in Article 33 of the Treaty and Article 39 of the Statute of the Court of Justice must be applied by way of analogy. Article 33 concerns only applications for annulment against decisions of the High Authority brought by Member States, the Council, undertakings and their associations. Article 39 of the Statute further declares the time-limit of one month in Article 33 of the Treaty applicable to actions relating to pecuniary sanctions taken against undertakings and actions in relation to fundamental and persistent disturbances affecting the States.
The Court further declares that the applicant's attitude following the decision of
Performance by the applicant of successive tasks required of her by the High Authority is no ground for deducing that she accepted the contested measure without reservation. Moreover the signing by the applicant on
The Court in consequence declares the present application admissible.
The Court rejects the applicant's argument, put forward for the first time in the reply, that she was definitively engaged by the High Authority when she entered into service on
The evidence adduced by the applicant in support of her claim is in no way conclusive. On the one hand the examination taken at the Ministry for Foreign Affairs in Rome and the telegram from the said Ministry inviting the applicant to go to Luxembourg for the purpose of her employment by the High Authority could not, without instructions to this effect, give rise to an obligation on the part of the latter towards the applicant. The applicant's signature to an undertaking to preserve official secrecy with regard to anything which might come to her knowledge during her employment and the note from the head of the translation department sent to the Administration to inform it of the applicant's entry into service do not constitute proof of a definitive appointment.
Further, both in the application made on
The Court also rejects the defendant's argument that the applicant was simply admitted for a trial period: this, as distinct from an appointment on probation, would give rise to no legal relationship between the person admitted and the administration since the trial period would not provide confirmation but simply be a substitute for any other means of recruitment such as an examination, a competition based on qualifications and so forth.
Entry into service under such conditions would appear at the very least to be exceptional and has not been provided for by any of the regulations in force until now in the Community. It moreover appears from the evidence of the secretary of the High Authority that instructions were given to exercise caution in engaging staff: the probationary period was meant as a safeguard. The fact that the probationary period was customary with the High Authority is confirmed by the statements of the director and an official in the administrative department of the High Authority uncontradicted by other witnesses.
The defendant has put forward no argument to substantiate its claim of admission for a trial period. It alleges that the absence of any document is confirmation of its statement. However, it appears from the documents in the file and from the inquiry that during the period when the High Authority was being set up the convening of those engaged to organize the work and their terms of reference were generally fixed orally. The fact that the applicant entered into service purely on the basis of an oral agreement therefore does not prove that she was accepted only on a trial basis.
Finally in the
The Court finds that it follows from the above-mentioned facts that on
The applicant bases her alternative claims on the irregularities which, she alleges, vitiate the statement of the reasons on which the decision of
The irregularities alleged are on the one hand irregularity in the conditions under which the probationary period took place and on the other hand the misuse of powers, the real reason for her dismissal being the reviser's desire to replace her by a friend.
The two claims must be considered separately.
The Court considers that it is for the competent administrative authority to evaluate in its discretion the capacity of the candidates to carry out given duties. However, it is for the Court where appropriate to review the ways and means which may have led to this evaluation.
In the present case the Court must consider whether the applicant has been given the opportunity to show her capacity during the probationary period.
The Court finds that during the month spent by the applicant in the translation department she was entrusted with only three translations, the first two of which contained only two pages each and the third of which, of seven pages, was done in collaboration with the Italian reviser. Further the documents to be translated in the opinion of both parties presented no serious difficulty.
The defendant justifies the small number of tasks required of the applicant during her probationary period either by the lack of work in the department or the obvious incapacity of the applicant for her duties, which the defendant seeks to prove by producing one of the three translations made by the applicant during her probationary period. The imperfection of these three translations is alleged to have convinced the defendant that there was no need to subject the applicant to any other tests.
As for the first argument it appears from the documents in the file that during the period
As to the translation of
The Court must rule on the authenticity of the said document.
The documents produced by the defendant show that the document in question is in fact the translation made into Italian by the applicant from a French original. The evidence of witnesses given at the inquiry conducted by the Second Chamber corroborates the findings resulting from the documents produced.
The expert's opinion ordered by the Second Chamber with regard to this document has not confirmed the defendant's allegation that this translation constituted by its inferior quality patent evidence of the applicant's inability.
Having regard to the opinion of the expert and taking account of the fact that the time-limit given for the translation was very short, the Court considers that an unfavourable evaluation could not reasonably have been made as a result of this single test which has been produced in view of the fact that the quality of the translation is not such as to reveal by itself marked inability on the part of the applicant for the work of translator with the High Authority.
The two other translations made by the applicant have not been produced so that it has not been shown that they reveal inability on the part of the applicant. Further the applicant, having entered a department which was strange to her and which required a certain assimilation to adapt herself to it, could legitimately expect a greater amount of work which would have allowed her to show her capacity.
For all these reasons the Court considers that the exceptionally limited number of translations required of the applicant during her probationary period constitutes a serious presumption in support of the claim that the probationary period of the applicant was not regularly conducted. In the circumstances it was for the defendant to rebut this presumption. Sufficient evidence is the form of translations made under appropriate conditions by the applicant showing her patent incapacity to do her work with the High Authority has not been adduced and in consequence the probationary period must be regarded as not having been properly conducted.
The applicant has alleged that the decision of
Without dwelling on the fact that there is a connexion between the departure of the applicant and the arrival in the translation department of the reviser's friend, that the latter did replace the applicant and that the decisions to dismiss and appoint were proposed by the same person, the Court finds that misuse of powers has not been sufficiently proved. This claim can therefore not be upheld. ,
The Court concludes that the applicant's probationary period was not conducted under proper conditions and that the decision of the Personnel Department of
In consequence, since the oral contract concluded between the applicant and the High Authority on
The duration of this probationary period was according to both parties a month in accordance with the rule usually applied by the High Authority at that time. It appears from the statement of the secretary of the High Authority that that period was considered too short and that as a result applicants were required to serve a probationary period of three months as from the beginning of 1953. The provisional Staff Regulations of
The applicant claims compensation equal to the difference between the salary actually received by her and that of staff in the second category.
The Court finds that in view of the uncertainty regarding the result which the first probationary period would have led to had it been duly conducted and in consequence regarding the applicant's possible appointment in the second category, there can be no question in the present case of any clear damages suffered by her.
Further the applicant has claimed for the first time in her reply non-material damage by reason of the improper nature of the decision of
It follows that the applicant is not entitled to damages.
Since the defendant has failed on several issues it must, in accordance with Article 60 of the Rules of Procedure of the Court, be ordered to pay the applicant four-fifths of her costs. Further, the defendant must pay to the Court four-fifths of the costs incurred by the Court in the form of legal aid granted to the applicant for part of the trial by order of the First Chamber of
The defendant must bear its own costs.
THE COURT
hereby:
Declares the present application admissible;
Annuls the decision of the High Authority of
Orders that the applicant shall complete a probationary period of six months as a translator in the language department of the High Authority;
Orders the High Authority to bear four-fifths of the applicant's costs and all its own costs.
Orders the High Authority to reimburse to the Court four-fifths of the costs incurred by it as legal aid.
Pilotti
Rueff
Riese
Serrarens
Delvaux
Hammes
van Kleffens
Delivered in open court in Luxembourg on
M. Pilotti
President
P. J. S. Serrarens
Judge-Rapporteur
A. Van Houtte
Registrar