JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

9 April 2003 (1)

(Temporary staff - Dismissal for unsatisfactory performance of duties - Action for annulment and for compensation for dismissal)

In Case T-155/01,

Robert Walton, a former member of the temporary staff of the Commission of the European Communities, residing in Oxford (United Kingdom), represented by P. Harris, Barrister,

applicant,

v

Commission of the European Communities, represented by J. Currall, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION principally for annulment of the letter of 3 October 2000, whereby the Commission terminated the applicant's employment as a member of the temporary staff, and for compensation for breach of his contract of employment,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of: N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 11 December 2002,

gives the following

Judgment

Facts

1.

    After being a member of the staff of the Joint European Torus (JET) Project in the United Kingdom, the applicant, a British national, was recruited by the Commission as a member of the temporary staff in October 1999, pursuant to Article 2(d) of the Conditions of Employment of Other Servants ('the Conditions of Employment'). Under his contract of employment he was assigned to the Research Directorate-General XII, SME and Innovation Unit, where he was responsible for setting up a help desk for small- and medium-sized enterprises involved with innovation and research. He therefore took up residence in Brussels, while his wife and three young children remained in the United Kingdom.

2.

    His contract of employment took effect from 1 November 1999 and was for a period of five years. Article 5(a) of that contract provided that the applicant was required to serve a probationary period of six months, pursuant to Article 14 of the Conditions of Employment, and could be dismissed during or at the end of the probationary period if his work did not prove adequate. Article 5(b) of the contract provided that the Commission or the applicant could terminate the contract for any of the reasons specified in Articles 47 to 50 of the Conditions of Employment, subject to the conditions laid down in those articles. For the purposes of Article47(1)(b) of the Conditions of Employment, the period of notice was to be three months.

3.

    During the probationary period which the applicant was required to complete between 1 November 1999 and 30 April 2000, Mr Smits, the Head of the Unit to which the applicant was assigned, repeatedly invited the applicant to look for another post and, according to the applicant, proposed that his probationary period be extended for that purpose. The applicant acknowledges that he sought without success to obtain a different post with the Commission but states that he expressly objected to any extension of his probationary period. The Commission contends, however, that the applicant himself asked for his probationary period to be extended.

4.

    On 14 April 2000, Mr Smits drew up a probationary report, in which he concluded, after describing a number of aspects of the applicant's performance as 'unsatisfactory', that the applicant did not have the qualifications required for the performance of his duties; he recommended that the applicant's probationary period be extended. On the same day, 14 April, the applicant noted on the probationary report that he disagreed with some of the assessor's comments, without making any explicit statement on a possible extension of his probationary period. The probationary report was not contested through an administrative complaint or legal proceedings.

5.

    The applicant continued to work in Mr Smits' Unit after 30 April 2000.

6.

    On 20 June 2000, a meeting took place between Mr Liger, who was responsible for personnel matters in DG XII, Mr Fry, another senior official in that Directorate-General, and the applicant. The applicant states that he pointed out on that occasion that the probationary period had long since expired and that, accordingly, he had entered the period of his five-year contract following the probationary period. According to the applicant, Mr Liger announced that a decision had been taken to terminate the contract of employment, on the ground that the applicant had failed his probationary period, and that he would receive a letter from the Commission to that effect, although it might be some weeks before he received the letter. The applicant states that he replied that, if his employment was terminated, he would be entitled to compensation pursuant to Article 47 of the Conditions of Employment.

7.

    In that context, the applicant first claimed in his application lodged with the Court that Mr Liger had informed him orally on 20 June 2000 that his contract was terminated. In reply to the Commission's contention that Mr Liger was not the person authorised to terminate the contract and had not in fact terminated it, the applicant then concurred in his reply with the Commission's position.

8.

    At the end of June 2000, the applicant left his post with the Commission and returned to the United Kingdom. On 4 July 2000, the applicant wrote to Mr Liger from his home in Oxford, England (with a copy to Mr Smits), in the following terms: 'Further to our conversation last week, I await the official notification of the termination of my employment contract. ... I returned to England without delay on hearing your decision. Please understand that I have been separated from my young family since November because of the continuous uncertainty regarding my contract, and as you are aware my position in the SME unit has been made untenable in any case.' This letter was received by the Commission before 10 July 2001.

9.

    As the applicant stated in Annex 1 to his reply, he had, in the meantime, found new employment in the United Kingdom. It is thus common ground that the applicant has been working since the end of July 2000 for the United Kingdom Atomic Energy Authority (UKAEA) in the United Kingdom, pursuant to a contract concluded with the company Filetravel (1200) Limited, through Fircroft, a personnel recruitment agency.

10.

    The applicant sent an e-mail to Mr Liger on 9 August 2000, in which he stated: 'Further to our meeting ... and my letter of 4 July, I have still not received the written notification of the termination of my contract that you promised. ... prior to the official written notification, could you please urgently send me some sort of written confirmation that my contract is to end following my unfavourable End of Stage Report(s). I am now employed on the JET project ... I think that it is important that I can demonstrate ... that I am not working here for the Commission. ... Also, I have decided not to invoice the UKAEA for my services until I have something in writing.'

11.

    A second probationary report, covering May and June 2000, confirmed the unfavourable assessments in the first report and concluded that the applicant did not have the qualifications required for the performance of his duties and, accordingly, should not be offered a position with the Commission. The applicant received this report (at the end of July or the beginning of August 2000) and returned a copy to Mr Smits with his signature and comments. That probationary report was not contested by the applicant either through an administrative complaint or legal proceedings.

12.

    On 14 October 2000, the applicant received at his address in the United Kingdom a letter dated 3 October 2000 from the Director General of DG XII, informing him that his employment was terminated with effect from 16 October 2000. That letter was based on the two abovementioned unfavourable probationary reports.

13.

    By letter dated 22 November 2000, the Commission informed the applicant that it proposed to recover certain payments unduly received by him in the light of his absence from his place of employment since 30 June 2000.

14.

    On 13 December 2000, the applicant lodged, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Communities ('the Staff Regulations'), applicable by virtue of Article 46 of the Conditions of Employment, a complaint against the decision of 3 October 2000.

15.

    By decision of 6 July 2001, that complaint was expressly rejected.

Procedure and forms of order sought

16.

    It was against that background that, by application lodged at the Registry of the Court of First Instance on 10 July 2001, the applicant brought the present action.

17.

    By a separate document dated 26 November 2001, the applicant submitted a proposal for certain measures of organisation of procedure and/or measures of inquiry concerning the alleged extension of his contract of employment. To that end, he proposed that a number of officials of the Commission be called as witnesses and stated that he was able to produce inter alia witness statements from his former and current employer, the UKAEA. He also requested that the Commission be ordered to provide him with a list of all the documents material to the issues raised in the present case. In a document dated 29 January 2002, the Commission submitted its comments on those proposals and requests.

18.

    By a document dated 17 April 2002, the applicant lodged a number of written witness statements and made a suggestion concerning the documents to be produced by the Commission.

19.

    On 25 April 2002, the Court of First Instance (Second Chamber) decided to ask the parties to produce certain documents and to attend an informal meeting. The documents were produced within the period specified by the Court. The informal meeting took place on 25 June 2002.

20.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Second Chamber) decided to open the oral procedure, to concentrate therein on the issues of admissibility raised by the action and to adjudicate on the request for certain measures of organisation of procedure and measures of inquiry in the light of the decision taken on the issues of admissibility.

21.

    At the hearing on 11 December 2002, the parties presented oral argument and replied to questions from the Court. At the hearing the applicant withdrew his claim for a declaration that the letter of 3 October 2000 was unlawful and/or in breach of the notice of termination provisions in Article 5 of the contract and/or Article 47 of the Conditions of Employment. The Court formally noted the withdrawal in the minutes of the hearing.

22.

    The applicant claims that the Court should:

-    annul the Commission's decision of 3 October 2000;

-    order the Commission to pay the applicant compensation for breach of contract and/or for breach of Article 47 of the Conditions of Employment;

-    order the Commission to pay the costs;

-    take such further measures and grant such further relief, under the Statute of the Court of Justice and/or the Rules of Procedure of the Court of First Instance, as may be necessary, just or equitable.

23.

    The Commission contends that the Court should:

-    dismiss the application;

-    make an appropriate order for costs.

Law

Arguments of the applicant

24.

    In support of the forms of order sought in his application for annulment and compensation, the applicant essentially submits one plea in law, alleging that his dismissal constituted an abuse. He maintains that his dismissal could not be lawfully based on his unfavourable probationary reports, since those reports were drawn up after the expiry of the period referred to in the first paragraph of Article 14 of the Conditions of Employment. The applicant states that the probationary period of a member of the temporary staff cannot be extended, even if the person concerned should agree to such an extension. In any event, the applicant never agreed to an extension of his probationary period beyond 30 April 2000. It is against that background that the applicant proposes to show, by the oral evidence of the witnesses referred to above and following production of all the relevant documents in the Commission's possession, that he never requested, suggested or agreed to such an extension.

25.

    The applicant concludes from the foregoing that, since he was not dismissed during his probationary period, his dismissal must be regarded as a termination of his contract within the meaning of the last subparagraph of Article 47(1) of the Conditions of Employment, which entitles him to compensation for termination of his contract of employment and to compensation equal to one third of his basic salary up to the date when his contract of employment expired, namely 31 October 2004.

Findings of the Court

26.

    Under Article 113 of its Rules of Procedure, the Court of First Instance, in the circumstances set out in Article 114(3) and (4), may, of its own motion, consider whether there exists any absolute bar to proceeding with a case, such as, according to settled case-law, any bar in connection with the conditions governing the admissibility of an action (order in Case T-181/97 Meyer and Others v Court of Justice [1998] ECR-SC II-481, paragraph 10, and the case-law cited therein).

27.

    It is settled case-law that an administrative complaint and the ensuing court proceedings must be directed against an act adversely affecting the applicant within the meaning of Articles 90(2) and 91(1) of the Staff Regulations and Article 46 of the Conditions of Employment, that is, an act emanating from the competent authority and producing binding legal consequences likely directly and immediately to affect the applicant's interests by significantly changing his legal situation (see, for example, Case 204/85 Stroghili v Court of Auditors [1987] ECR 389, paragraph 6; and Case T-184/94 O'Casey v Commission [1998] ECR-SC II-565, paragraph 63, and the case-law cited therein).

28.

    In the present case, the letter of 3 October 2000 was not likely to have an adverse effect on the applicant by terminating his contract of employment, if that contract had already been terminated by a previous act of the applicant himself.

29.

    On this point, it should be noted that Article 47(1) of the Conditions of Employment, like Article 5(b) of the contract of employment in question, provides that a member of the temporary staff may terminate a contract for a fixed period earlier, without any specific requirement as to form. The validity of such an act of termination supposes that the objective content of the act is such that the addressee, as a prudent and informed party to the contract, finding himself in the context at the time, should have been able to deduce that it constituted a clear and unconditional termination of the contract (see Case T-558/93 Düchs v Commission [1994] ECR-SC II-837, paragraph 40, regarding termination by the institution).

30.

    The factual context prior to 3 October 2000 consists first, of the probationary report of 14 April 2000 informing the applicant that he did not have the qualifications required for the performance of his duties. Second, on 20 June 2000, Mr Liger - who was not authorised to conclude or terminate the contract pursuant to Article 6(1) of the Conditions of Employment - announced to the applicant, as he states in his application (paragraph 30), that he should expect to receive, some weeks later, a letter of termination based on the fact that his performance during his probationary period had been found unsatisfactory. Moreover, as evidenced by a number of e-mails from the applicant (attached to the defence), he had attempted, even before the first probationary report had been drawn up, to find employment outside the Commission because he was not happy in his post. Thatfactual context therefore indicates that both the Commission and the applicant were tending towards termination of the employment relationship.

31.

    It was in those circumstances that the applicant, unwilling to wait the period of 'some weeks' the Commission might take to provide him with a termination letter, left his post with the Commission at the end of June 2000 and returned to the United Kingdom; by letter of 4 July 2000, he informed the Commission that the continuous uncertainty regarding his contract, the long separation from his young family and his position which had become untenable in the SME unit had caused him to return to the United Kingdom. In addition, by e-mail of 9 August 2000, he informed the Commission that he had found other employment and that he needed to be able to show that he no longer worked for the Commission, for which he required written confirmation from the Commission to that effect.

32.

    This conduct of the applicant between the end of June and 9 August 2000 must be regarded as a series of acts objectively amounting to termination by the applicant of his contract of employment. The fact that the applicant informed the Commission that he had unilaterally left his post and returned to the United Kingdom to work under another contract of employment for another employer, which made it absolutely impossible for him to comply with the contract which he had concluded with the Commission, is of sufficient importance to be accorded the same weight as an explicit letter giving notice.

33.

    That finding is not affected by the fact that the applicant did not comply with the period of notice provided for in the second subparagraph of Article 5(b) of the contract of employment and Article 47(1)(b) of the Conditions of Employment. Since the purpose of that period of notice was to protect the applicant's interests, by his abrupt and definitive conduct terminating the contract, he forfeited the protection which he could have enjoyed under those provisions. The Commission, for its part, never asked the applicant to resume his functions and thus refrained from insisting that the period of notice be complied with in the interests of the service. The termination by the applicant therefore took effect, in any event, prior to October 2000.

34.

    Contrary to the applicant's argument, the validity of that termination was not subject to express acceptance by the Commission. There is no mention of such a condition of validity anywhere in the applicable provisions of the Conditions of Employment or the contract of employment at issue.

35.

    In addition, although the first paragraph of Article 16 of the Conditions of Employment and the first paragraph of Article 60 of the Staff Regulations contain express provisions concerning unauthorised staff absences (deduction from annual leave, forfeiture of remuneration), it must be emphasised that the present case did not involve a mere unauthorised absence on the part of the applicant which would as such have left intact the validity of the contract of employment. As found above,his absence was accompanied by clear statements by which the applicant informed the Commission that he no longer would or could perform his side of the contract.

36.

    Lastly, the clear and unconditional nature of the termination of the contract of employment is not contradicted by the statements accompanying the termination, by which the applicant asked the Commission for 'written notification of the termination of [his] contract' (letter of 4 July 2000 and e-mail of 9 August 2000) and stated that he had 'decided not to invoice the UKAEA for [his] services until [he had] something in writing' (e-mail of 9 August 2000), believing generally that he was entitled to compensation as provided for in Article 47(1) of the Conditions of Employment. Unlike purely oral or written notice, the conduct of the applicant, particularly his return to the United Kingdom and conclusion of a new contract with another employer, had an immediate and definitive terminating effect which was not subject to any conditions.

37.

    Turning more specifically to the fact that the applicant had decided not to invoice the UKAEA for his services 'until I have something in writing', that does not in any way imply that the new contract concluded by the applicant - with Filetravel (1200) Limited, however, rather than directly with the UKAEA - had not taken effect. It amounts to mere deferral on the part of the applicant of payment owed to him by his new employer.

38.

    Consequently, the statements accompanying the termination of the contract of employment can be viewed only as a protestatio facto contraria (words contradicted by acts) which, in so far as they are inconsistent with the objective import of the applicant's conduct, must be held to be of no effect.

39.

    It follows that, since the applicant himself terminated his contract with immediate effect before the letter of 3 October 2000 was written, it cannot be held to be an act adversely affecting him. Consequently, the claim for annulment of that letter must be dismissed as inadmissible.

40.

    As regards the heads of claim of a financial character, this Court notes that, in accordance with Article 19 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, all applications must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. That summary must be sufficiently clear and precise to enable the Court to exercise its power of judicial review, without other supporting documents, if necessary. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (Case T-85/92 De Hoe v Commission [1993] ECR-SC II-523, paragraph 20; and Case T-128/96 Lebedef v Commission [1996] ECR-SC II-1679, paragraph 24).

41.

    In the present case, the applicant claims that the Court should order the Commission to pay the applicant compensation for breach of contract and/or for breach of Article 47 of the Conditions of Employment (paragraph 88(a) and (c) of the application). The application specifies as follows:

-    that the Commission should be ordered to pay full compensation (paragraph 6(c)),

-    that the letter of termination of 3 October 2000 did not provide for the requisite three months' notice and was thus in breach of Article 5(b) of the contract and Article 47 of the Conditions of Employment, and that no, or no full, compensation has been paid to the applicant, in further breach of Article 47 (paragraph 76);

-    that the applicant has not been compensated either for the Commission's failure to provide the three months' notice to which he was entitled, or in the amount referred to in Article 47 (paragraph 84);

-    that the applicant is entitled to compensation corresponding to three months' full salary and benefits for the period 15 October 2000 to 14 January 2001 (the period referred to in Article 5 of the contract of employment and Article 47 of the Conditions of Employment), plus one third of his basic salary for the period from 16 October 2000 to 31 October 2004 or from 15 January 2001 to 31 October 2004 (paragraphs 81 and 85).

42.

    A reading of the passages referred to above shows that the only claim which meets the requirements of clarity and precision referred to in paragraph 40 above is the one relating to payment of the amounts to which the applicant claims to be entitled for the three-month notice period and following termination of his contract of employment by the Commission had that termination been effected in accordance with Article 5 of the contract of employment and Article 47(1) of the Conditions of Employment. Any additional claim seeking 'full compensation' for other damage allegedly caused by the 'Commission's failure' lacks the necessary clarity and must be declared inadmissible.

43.

    It follows that the only claim of a financial character which is admissible is the one for payment of the amounts referred to in Article 5(b) of the contract of employment and Article 47(1)(b) and last subparagraph of the Conditions of Employment.

44.

    Having regard to the findings of fact above to the effect that the applicant himself terminated his contract without notice, the conditions governing the application of the provisions relied on are clearly not met in the present case. The claims of a financial character must therefore be dismissed, pursuant to Article 111 of the Rules of Procedure, as manifestly lacking any foundation in law.

45.

    It follows from all the foregoing that the application must be dismissed in its entirety, without its being necessary to rule on the applicant's requests for measures of inquiry and organisation of procedure.

Costs

46.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. However, under Article 88 of those same Rules of Procedure, in proceedings between the Communities and their servants, the institutions are to bear their own costs. Since the applicant has been unsuccessful, the parties shall bear their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber),

hereby orders:

1.    The application is dismissed.

2.    The parties shall bear their own costs.

ForwoodPirrung Meij

Delivered in open court in Luxembourg on 9 April 2003.

H. Jung

N.J. Forwood

Registrar

President

1: Language of the case: English.