OPINION OF MR ADVOCATE-GENERAL

DELIVERED ON 24 JUNE 1971 (*1)

Mr President,

Members of the Court,

The present case relates to the calculation of the allowance which Mr Müllers, an official of the Economic and Social Committee, claims to be entitled to for 1969 to reimburse the transport costs of his six year-old son who attends the European School in Brussels.

In my opinion the application seems plainly inadmissible.

In fact, the applicant set out his claims in an application for the grant of the education allowance dated 8 December 1969 and those claims were rejected by a decision of 15 December 1969.

On 19 February 1970, the applicant protested against this rejection in a letter, the nature of which I shall come back to presently.

In application of Article 91 (2) of the Staff Regulations, he should have deemed his protest rejected on the following 20 or 21 April and have appealed against that implied decision rejecting it not later than 21 or 22 June 1970.

But his application was only entered on the Court Register on 11 December 1970, that is almost six months after the end of the period for lodging an appeal to the Court calculated as I have just stated.

But it is true that the applicant puts forward arguments against the claim that his application is inadmissible on the ground that it was out of time, one of which at least is very important.

The applicant puts forward five arguments to defeat the plea of inadmissibility which might be raised against him.

First, he claims that the express decision rejecting his protest of 19 February 1970 was only made on 10 September 1970.

But it is well established case-law that an express decision which simply confirms an implied decision does not have the effect of starting the period for lodging an appeal to the Court against the express decision running afresh and in addition that an applicant has no interest in contesting the express decision which simply confirms the implied decision.

The applicant maintains that the document dated 15 December 1969 does not constitute a decision on his rights as to the amount of transport costs which he can claim for his child.

In my opinion, an examination of the documents in the file leads these arguments to be rejected.

In a schedule to the application for the education allowance laid down in the Staff Regulations, which he had submitted, the applicant had expressly requested that the ‘transport costs’ portion of that allowance be calculated according to certain special methods.

But in the decision of 15 December 1969 taken by the competent authority, that is the Authorizing Officer, these claims were rejected and the Authorizing Officer stated briefly but clearly that he calculates transport costs not upon the basis which the applicant wishes but upon a different basis.

The applicant maintains thirdly that his letter of 19 February 1970 did not constitute the appeal through official channels laid down in Article 91 (2) of the Staff Regulations.

Strangely, this argument in my opinion militates against the claim in support of which it is put forward. In fact, although the applicant's letter of 19 February 1970 does not have the characteristics of the appeal through official channels laid down by Article 91 (2) of the Staff Regulations, it could not have had the effect of preserving the time-limit for lodging an appeal to the Court against the decision of 15 December 1969 in the circumstances laid down by that provision.

It follows therefore that the belatedness of the application is still more evident, since the decision of 15 December 1969 became final at that time and no appeal could be made against it from 15 or 16 March 1970.

As a matter of fact, I am of the opinion that the applicant's letter of 19 February 1970 does indeed constitute the appeal through official channels laid down by Article 91 (2).

To deny that it has these characteristics, the applicant claims in fact that according to the wording of the address it was not addressed to the appointing authority but to the Head of Administration of his institution. But this is not the first time that this Court must recognize an attempt on the part of officials to derive an argument from the rather indifferent drafting of Article 91 (2) of the Staff Regulations in order to defeat the rules on the time-limit for lodging an appeal to the Court (see for example the judgment in the Kschwendt case of 17 March 1971).

This Court has always acknowledged that, when an official protests to the institution for which he works against a decision which affects his rights, this protest, which must be submitted to his immediate superior, constitutes, whatever the wording of the address, the only appeal through official channels which may preserve the time-limit for lodging an appeal to the Court, that is the appeal provided for in Article 91 (2) of the Staff Regulations.

The applicant maintains, and this is his most important argument, that he was misled by a letter from an authority working for his institution dated 31 March 1970, and he was notified in that letter that it was envisaged that these rules would be altered so as to be favourable to his argument and that letter finished with the following sentence: ‘I would therefore ask you to be so good as to wait a little longer for the final solution of this question. When the Heads of Administration have come to their decision you will be officially informed’.

it is certain that, as the applicant maintains, this letter was likely to mislead him as regards the beginning of the period for lodging an appeal.

But the question is whether that fact enables the Court to remove the bar to the applicant's lodging an appeal. I do not think so.

I was surprised to near Mr Müllers' representative claim that French caselaw enables the Court to remove the bar to the applicant's lodging an appeal in such a case. In fact all French caselaw goes against this.

The French Conseil d'État in particular considers that since time-limits for lodging appeals are a matter of public policy it does not have the right to lift the bar on the applicant's lodging an appeal and that administrative courts on the contrary must even raise objections to this bar of their own motion.

The judgment quoted the other day in the oral procedure—French Conseil d'État 7 May 1954, Société Chocolaterie Fine du Rhone, Recueil du Conseil d'État français, page 260 — is one of many judgments which apply this caselaw.

As for the passage from the treatise of Messrs Aubry and Drago, to which reference has been made, this militates against the applicant's argument. These authors show in fact how the French Conseil d'État has upheld its case-law, even in cases where it was subject to the keenest criticism from the point of view of fairness and how this situation has led the legislature to intervene in certain very special cases.

Among these special cases there is one recent case which is particularly significant. The decisions of the Minister of Ex-Servicemen on pension rights of Frenchmen who were deported to Germany during the war involved a printed notice giving those concerned incorrect information as to the period within which they could lodge an appeal to contest decisions which fixed their rights before administrative courts.

In spite of the enormity of the mistake made by the Administration and in spite of the very serious consequences that it could have had for thousands of war victims, the French Conseil d'État, giving a ruling in proceedings brought before them, raised the objection of the bar which followed from the law to the applications of those concerned.

However, they were, like everyone else, aware of the injustice of this solution and acting as an Administrative Assembly it suggested to the Government that they ask Parliament to pass a special law enabling courts in this particular case to lift the bar on the applicants making an appeal which they had unwittingly fallen foul of and this was done.

The question is whether solutions of the same type should be applied to proceedings brought by the European Administration.

I would perhaps have hesitated to suggest it to the Court, but the Court has already decided this in its judgment of 14 December 1965 in the Pfloeschner case, [1965] ECR 981, in accordance with the opinion of Mr Advocate-General Gand.

For several reasons I am of the opinion that you should uphold this case-law.

(a) The time-limits for lodging appeals are a matter of public policy, as you have already held on other occasions.

(b) In contrast to certain national rights, there is no regulation which provides for the general power of the Court of Justice to lift a bar on the applicants making an appeal which relates to time-limits for lodging an appeal.

This power is only given to the Court by Article 42 of the Staff Regulations in two very specific and very clearly defined situations: unforeseeable circumstances or a case of force majeure.

In my opinion it is impossible to give these general or legal concepts a wide interpretation for their application to procedural matters which is incompatible with their field of application in other spheres.

Therefore I do not think that the letter of 31 March 1970, however unfortunate, can have the effect of authorizing you to lift the bar on the applicant's making an appeal.

The last argument which the applicant puts forward as regards the problem of admissibility will not delay me long.

in tact Mr Müllers claims that if he had lodged his application in the form of a request for compensation equal to the additional allowance to which he considers himself entitled, his application would be admissible. But this is incorrect, for the Court has already held that an official could not contest the legality of a decision relating to his rights to salary or an allowance by way of an application of a monetary nature when he had not lodged within the prescribed period an application for the annulment of the decision fixing his entitlement to that salary or allowance. (Judgment of 15 December 1966 in Schreckenberg v Commission, [1966] ECR 543).

Since submissions have been made on the substance of the case, tradition requires that I deliver an opinion on the substance of the case as a secondary point.

With the Court's permission I shall not observe that tradition today for the following reason:

The Court was told the other day in the oral procedure that if Mr Müllers's present application relating to his rights to allowances for 1969 was held to be inadmissible he would lodge appeals against the decisions of the same nature fixing his rights for 1970, and 1971, this time I hope, within the prescribed period.

In these circumstances, I do not want to take the risk of taking grist to the mill of one or other of the parties in a future action by delivering an opinion on the substance of the case.

Having made these points I conclude that:

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(*1) Translated from the French.