Avis juridique important

61976J0005

European Court reports 1976 Page 01027 Greek special edition Page 00381 Portuguese special edition Page 00415

Summary

1 . OFFICIALS - REQUEST THROUGH OFFICIAL CHANNELS - IMPLIED REJECTION - EXPRESS REJECTION WITHIN THE PERIOD FOR COMMENCING PROCEEDINGS - DATE - FRESH PERIOD - NOTIFICATION OF REJECTION - DELAY NOT TO BE TAKEN INTO ACCOUNT ( STAFF REGULATIONS OF OFFICIALS , ARTICLE 91 ( 3 ), SECOND INDENT )

2 . OFFICIALS - APPLICATION TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - BELATED NOTIFICATION - PERIOD FOR COMMENCING PROCEEDINGS - CALCULATION ( STAFF REGULATIONS OF OFFICIALS , ARTICLES 90 AND 91 )

Parties

IN CASE 5/76 HEINZ GUNTHER JANSCH , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 23 RUE DES CIGALES , LUXEMBOURG , REPRESENTED BY MARCEL SLUSNY , ADVOCATE AT THE COUR D ' APPEL , BRUSSELS , 272 AVENUE BRUGMANN , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE AT THE HOME OF MR JANSCH , APPLICANT , V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER , MARIO CERVINO BATIMENT CFL , PLACE DE LA GARE , DEFENDANT ,

Subject of the case

APPLICATION , AT THE PRESENT STAGE OF THE PROCEEDINGS , REGARDING THE ADMISSIBILITY OF THE APPLICATION LODGED BY THE APPLICANT FOR THE ANNULMENT OF THE ' PROCEDURES TO BE IMPLEMENTED PRIOR TO DECISIONS ON THE TRANSFER FROM CATEGORY B TO CATEGORY A OF OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES ' , OF THE DECISIONS TAKEN IN IMPLEMENTATION OF THESE PROCEDURES , AND , SO FAR AS NECESSARY , OF ARTICLE 92 OF THE STAFF REGULATIONS OF OFFICIALS ,

Grounds

1 THE APPLICATION LODGED AT THE COURT REGISTRY ON 16 JANUARY 1976 SEEKS IN PARTICULAR THE ANNULMENT OF A DECISION OF THE COMMISSION OF 2 OCTOBER 1975 REJECTING A COMPLAINT BROUGHT BY THE APPLICANT ON 3 MARCH 1975 AND DIRECTED AGAINST THE ' PROCEDURES TO BE IMPLEMENTED PRIOR TO DECISIONS ON THE TRANSFER FROM CATEGORY B TO CATEGORY A OF OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES ' PUBLISHED IN THE STAFF COURIER ON 16 DECEMBER 1974 .

2 BY AN APPLICATION ON A PROCEDURAL ISSUE LODGED ON 20 FEBRUARY 1976 THE DEFENDANT RAISED UNDER ARTICLE 91 OF THE RULES OF PROCEDURE A PRELIMINARY OBJECTION OF INADMISSIBILITY ON THE GROUNDS OF THE ALLEGED LATENESS OF THE APPLICATION .

3 IN SUPPORT OF THIS PRELIMINARY OBJECTION THE DEFENDANT STATES IN THE FIRST PLACE THAT THE APPLICANT ' S COMPLAINT REGISTERED ON 6 MARCH 1975 WAS REJECTED BY THE REFUSAL IMPLIED BY THE ABSENCE OF A REPLY WITHIN THE FOUR MONTHS PRESCRIBED IN THE LAST SUBPARAGRAPH OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , THAT IS IN THE PRESENT CASE BEFORE 7 JULY 1975 , AND THIS IMPLIED DECISION OF REFUSAL SHOULD THEREFORE HAVE BEEN CONTESTED BY AN APPLICATION TO THE COURT BEFORE 7 OCTOBER 1975 UND THE SECOND INDENT OF ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS .

4 IT STATES THAT SINCE THE EXPRESS DECISION OF THE COMMISSION WAS NOT NOTIFIED TO THE APPLICANT UNTIL 16 OCTOBER 1975 , THAT IS AFTER THE EXPIRATION OF THE PERIOD FOR BRINGING AN APPEAL , IT WAS IMPOSSIBLE FOR IT TO HAVE ACTIVATED THE LAST SENTENCE OF THAT PROVISION , WHICH PROVIDES THAT ' WHERE A COMPLAINT IS REJECTED BY EXPRESS DECISION AFTER BEING REJECTED BY IMPLIED DECISION BUT BEFORE THE PERIOD FOR LODGING AN APPEAL HAS EXPIRED , THE PERIOD FOR LODGING THE APPEAL SHALL START TO RUN AFRESH ' .

5 HOWEVER A DECISION MUST BE REGARDED AS ARISING WITHIN THE MEANING OF THIS PROVISION AT THE DATE ON WHICH IT IS ADOPTED BY THE COMPETENT AUTHORITY .

6 THE LATTER , HAVING ADOPTED AN EXPRESS DECISION WITHIN THE PERIOD FOR BRINGING AN APPEAL , MUST EXCEPT A NEW PERIOD TO BEGIN TO RUN IN FAVOUR OF THE PERSON CONCERNED WITHOUT ANY DELAY IN NOTIFICATION BEING TAKEN INTO ACCOUNT .

7 IT IS PROPER THEREFORE TO CONCLUDE THAT IN THE PRESENT CASE THE EXPRESS DECISION OF THE COMMISSION OF 2 OCTOBER 1975 CAUSED A NEW PERIOD FOR BRINGING AN APPEAL TO BEGIN TO RUN .

8 THE PROBLEM THEN ARISES AS TO THE DATE FROM WHICH THIS PERIOD MUST BE CALCULATED .

9 IN THIS RESPECT THE DATE OF NOTIFICATION IS THE CRITERION IN ALL CASES WHERE AS IN THE PRESENT CASE THE DELAY IN NOTIFICATION IS NOT ATTRIBUTABLE TO THE PERSON CONCERNED .

10 ONLY THE NOTIFICATION ENABLES HIM TO HAVE EFFECTIVE KNOWLEDGE OF THE EXISTENCE OF THE DECISION AND THE GROUNDS BY WHICH THE ADMINISTRATION JUSTIFIES IT .

11 SINCE NOTIFICATION TOOK EFFECT IN THE PRESENT CASE ON 16 OCTOBER 1975 THE APPLICATION LODGED ON 16 JANUARY 1976 WAS BROUGHT WITHIN THE THREE MONTHS LAID DOWN IN ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS .

12 ACCORDINGLY THE PRELIMINARY OBJECTION OF INADMISSIBILITY MUST BE REJECTED .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DECLARES THE APPLICATION TO BE ADMISSIBLE ;

2 . ORDERS THE PROCEDURE TO CONTINUE WITH REGARD TO THE SUBSTANCE ;

3 . RESERVES THE COSTS .