Avis juridique important

61973J0015

European Court reports 1974 Page 00177 Greek special edition Page 00107 Portuguese special edition Page 00111

Summary

3 . A PROVISION ORIGINATING WITH THE COMPETENT AUTHORITY AND TAKEN WITH DUE REGARD TO THE PROCEDURAL AND FORMAL CONDITIONS LAID DOWN BY THE TREATIES CANNOT BE TERMED 'NON-EXISTENT', EVEN IF FOUND BY THE COURT TO HAVE BEEN ILLEGAL .

Parties

IN JOINED CASES 15/73 ROSWITHA KORTNER 16/73 MICHELLE MOREAU 17/73 MARIE-JOSEPHE BESSE 18/73 ELISE CAMILLE BENSADOUN 19/73 GISELE PION 20/73 MARLENE MEYER 21/73 ANITA DAERDEN 22/73 MARIE-THERESE DE CUYPER 23/73 GISELLA MILANESI-DE MOOR 23/73 EVELYNE MULLER 24/73 MONIKA BURKSCHAT 25/73 MARIE-FRANCE SZRIFTGISER 27/73 LIANE SILBERSCHLAG, ALL OFFICIALS OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MAITRE MARCEL GREGOIRE, ADVOCATE AT THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE T . BIEVER, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE, APPLICANTS, V COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER GONZAGUE LESORT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF P . LAMOUREUX, 4 BOULEVARD ROYAL, DEFENDANT, 28/73 INGEVELDE DEBATTICE 29/73 YVETTE HOUYET-LE CREFF 30/73 HERTA-MARIE DEBOIS 31/73 GODELIEVE VAN NUFFEL 32/73 MARIE-ELISABETH LEONARD 52/73 MARIA GOBIN-HUNZE 53/73 ANNA-MARIE RAINALDI-BEHR 57/73 MICHELINE SCHEFFLER-PILLONS 58/73 GISELA FRAN OIS-GERSTER 59/73 NICOLE DECOSTER-BERTHELIN 60/73 ANTOINETTA THIELEMANS-PAUSCIN 61/73 GIUDITTA VERSCHUEREN-DELLE CHIAIE 62/73 HILTRUD GOLDSZTAJN-WAGNER 63/73 HELGA WEBER-KUEHNLE 64/73 SIGRID MAES-DUMPELMANN 65/73 ANDREE-MARIE GUIOT-TINGAUD 66/73 CHRISTEL FLEURY-CALLAM 67/73 INGRID LALOUX-HERRMANN 68/73 ANNE ZALINSKY-POTEMKINE 69/73 URSULA FRANCQ-KNUEVER 70/73 MARIE-ELISABETH LEONARD 71/73 LILIA DURDUREZ-CADRINGHER 72/73 CLAIRE DECOCK-FISCHER 73/73 RENEE STERN-SCHMITT 74/73 ARLETTE HERDE-JAEGER 75/73 YVETTE MOES-BOUCHAUD 76/73 MIREILLE THILGES-PORTE 77/73 ELIANE HAGEN-VAN LIEFFERINGE 78/73 CHRISTL SWARTENBROECKX-WEBER 79/73 GISELA VANDEN AVONT-ZIEPRIES 80/73 BRIGITTE DESPIC-TOUROLLE 81/73 EVA WAUTREQUIN-TRAFOJER 82/73 YVETTE DELACROIX-GLANIA 83/73 GISELA NAUWELAERTS-SCHEDLITZ 84/73 MARIE-THERESE SCHOENTGEN 116/73 ANNE-MARIE FREYMANN-FASSBENDER 117/73 MARIE-CECILE HISSNAUER-NEY 132/73 ROSA MARINO 135/73 BRIGITTE DEMARET-MAKOWSKI 136/73 URSULA DE SMET-ZANKE, ALL OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MAITRE MARCEL GREGOIRE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE T . BIEVER, AND 137/73 CHARLOTTE RENIERS-SCHILLER, OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MAITRE THIERRY CHOME, ADVOCATE AT THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE T . BIEVER, APPLICANTS, V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER PIERRE LAMOUREUX AND, SUBSEQUENT TO 20 SEPTEMBER 1973, BY ITS LEGAL ADVISER JOSEPH GRIESMAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF P . LAMOUREUX, DEFENDANT, 105/73 MAGDA EWEN-BUONCORE 106/73 STEFANIE DEL BON-WEBER 107/73 HELENE-M . MOULIN 108/73 INGRID TERRENS-FELLINGER 109/73 ARGIA BIDOLI-SCARSINI 123/73 MARIA-LUISA HETTINGER-AVANCINI, ALL OFFICIALS OF THE EUROPEAN PARLIAMENT, REPRESENTED BY MAITRE MARCEL GREGOIRE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE T . BIEVER, APPLICANTS, V EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL HANS ROBERT NORD, ASSISTED BY MAITRE ALEX BONN, ADVOCATE AT THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF MAITRE BONN, 22 COTE D'EICH, DEFENDANT, 33/73 MARIA-ELENA STEFANUTTI, OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MAITRE MARCEL GREGOIRE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE T . BIEVER, APPLICANT, V EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL HANS ROBERT NORD, ASSISTED BY MAITRE ALEX BONN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE BONN, AND COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER GONZAGUE LESORT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF P . LAMOUREUX, DEFENDANTS,

Subject of the case

IN THE MATTER - AT THE PRESENT STAGE OF THE PROCEEDINGS - OF THE ADMISSIBILITY OF APPLICATIONS FOR PAYMENT TO THE APPLICANTS OF ARREARS OF EXPATRIATION ALLOWANCE AND, TO THE EXTENT NECESSARY, THE ANNULMENT OF THE DECISIONS ON THE PART OF THE DEFENDANTS WITHDRAWING OR REFUSING THEM THE BENEFIT OF THIS ALLOWANCE .

Grounds

1 THE ACTIONS, FILED AT THE COURT BETWEEN 27 FEBRUARY AND 23 MAY 1973, ARE FOR PAYMENT TO THE APPLICANTS OF ARREARS OF EXPATRIATION ALLOWANCE CALCULATED FROM THE DAY WHEN THIS WAS WITHDRAWN OR REFUSED, IN APPLICATION OF ARTICLE 4 ( B ) OF ANNEX VII TO THE STAFF REGULATIONS, UP TO THE DATE WHEN IT WAS RESTORED TO THEM .

2 THEY ARE FURTHER FOR ANNULMENT - TO THE EXTENT NECESSARY - OF THE DEFENDANTS' DECISIONS WITHDRAWING OR REFUSING THE APPLICANTS THE BENEFIT OF THE EXPATRIATION ALLOWANCE, AND OF THE DECISIONS REJECTING THEIR COMPLAINTS WITH A VIEW TO OBTAINING THE GRANT OF THE ALLOWANCE FOR THE PERIOD PRIOR TO 1 JULY 1972 .

3 BY PRELIMINARY DOCUMENTS, ON THE BASIS OF ARTICLE 91 OF THE RULES OF PROCEDURE THE DEFENDANTS RAISED ARGUMENTS OF INADMISSIBILITY BY REASON OF THE LATENESS OF THE APPEALS, ARGUING THAT THESE HAD NOT BEEN LODGED IN COMPLIANCE WITH THE RULES LAID DOWN BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

4 UNDER ARTICLE 91, AN APPEAL TO THE COURT OF JUSTICE SHALL LIE ONLY IF THE APPOINTING AUTHORITY HAS PREVIOUSLY HAD A COMPLAINT SUBMITTED TO IT PURSUANT TO ARTICLE 90 ( 2 ) WITHIN THE PERIOD PRESCRIBED THEREIN .

5 UNDER ARTICLE 90, ANY COMPLAINT AGAINST AN ACT ADVERSELY AFFECTING AN OFFICIAL MUST BE SUBMITTED TO THE APPOINTING AUTHORITY WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF NOTIFICATION OF THE DECISION TO THE PERSON CONCERNED BUT IN NO CASE LATER THAN THE DATE ON WHICH THE LATTER BECAME AWARE OF IT .

6 A SIMPLE EXAMINATION OF THE DATES OF WITHDRAWAL OR REFUSAL OF THE EXPATRIATION ALLOWANCE ON THE ONE HAND AND THE DATES OF THE APPEALS ON THE OTHER, SHOWS THAT THE LATTER ARE INADMISSIBLE SINCE THEY WERE LODGED AFTER THE EXPIRATION OF THE TIME LIMITS LAID DOWN BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

7 THE APPLICANTS RETORT THAT THE APPEALS ARE IN THE FIRST PLACE ACTIONS FOR PAYMENT OF ARREARS AND THAT SUCH ACTIONS CONSTITUTE AN AUTONOMOUS FORM OF ACTION WHICH IS NOT SUBJECT TO THE TIME LIMITS OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

8 THE ACTIONS DESCRIBED IN THIS WAY IN FACT SEEK TO OBTAIN THE ANNULMENT OF DECISIONS TAKEN BY THE DEFENDANT INSTITUTIONS AND ARE BASED ON THE ALLEGED ILLEGALITY OF THOSE DECISIONS .

9 IN NONE OF THE APPLICATIONS IS THE PAYMENT CLAIMED PRESENTED AS A CLAIM FOR COMPENSATION FOR DAMAGE CAUSED BY THE INSTITUTIONS .

10 EVEN IF THE APPLICANTS INTENDED TO CLAIM COMPENSATION FOR DAMAGE CAUSED BY THE INSTITUTIONS IN THE EXERCISE OF THEIR FUNCTIONS, SUCH AN ACTION IN THE PRESENT CASE HAS ITS ORIGIN IN THE ALLEGED ILLEGALITY OF THE INSTITUTIONS' DECISIONS AND CANNOT THEREFORE BE DISTINGUISHED FROM AN ACTION FOR ANNULMENT .

11THE BASIS FOR THE APPEALS THUS LIES EXCLUSIVELY IN ARTICLE 179 OF THE EEC TREATY, WHICH PROVIDES THAT THE COURT SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS .

12THE APPEALS ARE THEREFORE SUBJECT TO THE TIME LIMITS OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

13THIS ARGUMENT MUST THEREFORE BE REJECTED .

14SOME OF THE APPLICANTS MAINTAIN THAT TIME HAS NOT STARTED RUNNING AGAINST THEM, SINCE THE ORIGINAL DECISIONS WITHDRAWING OR REFUSING THE EXPATRIATION ALLOWANCE WERE NOT PROPERLY COMMUNICATED TO THEM IN ACCORDANCE WITH ARTICLE 25 OF THE STAFF REGULATIONS .

15THE APPLICANTS COULD HAVE REALIZED THAT THEIR ALLOWANCE HAD BEEN WITHDRAWN OR REFUSED ONLY BY READING THEIR SALARY STATEMENTS, WITHOUT THERE HAVING IN THIS RESPECT BEEN ANY EXPRESS AND REASONED WRITTEN COMMUNICATION .

16A SALARY STATEMENT DOES NOT CONSTITUTE A DECISION WITHIN THE MEANING OF ARTICLE 25 OF THE STAFF REGULATIONS .

17IT IS NOT DENIED THAT THE APPLICANTS HAD KNOWLEDGE OF THE DECISIONS RESULTING IN THE WITHDRAWAL OR REFUSAL TO THEM OF THE EXPATRIATION ALLOWANCE MORE THAN THREE MONTHS BEFORE THE MAKING OF THE ADMINISTRATIVE COMPLAINT .

18THE SENDING OF THE MONTHLY SALARY STATEMENT HAS THE EFFECT OF STARTING THE TIME FOR APPEAL RUNNING, WHERE IT CLEARLY SHOWS THE DECISION TAKEN .

19IN THE PRESENT CASE THIS CONDITION IS FULFILLED .

20THIS GROUND OF APPEAL MUST ACCORDINGLY BE REJECTED .

21FINALLY, THE APPLICANTS RAISE VARIOUS ARGUMENTS WITH A VIEW TO SHOWING THAT TIME HAD IN ANY EVENT STARTED TO RUN AFRESH IN THEIR CASE .

22ONE OF THE APPLICANTS IN THIS RESPECT MAINTAINS THAT THE PROVISIONS OF ARTICLE 4 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS AMOUNT TO ILLEGALITY OF SO STRIKING A KIND THAT THEY MUST BE CONSIDERED AS 'NON-EXISTENT '.

23THE FINDING OF NON-EXISTENCE OF A RULE IS SAID TO RELIEVE THE APPLICANT FROM BEING TIME-BARRED BY REASON OF THE EXPIRY OF THE TIME-LIMITS FOR APPEAL .

24ALL THE APPLICANTS REFER FOR THE SAME PURPOSE TO THE OCCURRENCE OF CERTAIN 'NEW FACTS '.

25THE COURT'S JUDGMENTS OF 7 JUNE 1972 IN CASE 20/71, SABBATINI V EUROPEAN PARLIAMENT AND CASE 32/71, BAUDUIN V COMMISSION ARE SAID TO AMOUNT TO A NEW FACT .

26THE GROUND OF ANNULMENT OF THE INDIVIDUAL DECISIONS PRONOUNCED BY THESE JUDGMENTS WAS THE ILLEGALITY FOUND TO EXIST IN ARTICLE 4 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS;

27IT IS PRECISELY BY APPLICATION OF THIS PROVISION, FOUND TO HAVE BEEN ILLEGAL, THAT THE BENEFIT OF THE EXPATRIATION ALLOWANCE WAS WITHDRAWN OR REFUSED TO THE APPLICANTS .

28THE DECISIONS TAKEN BY THE DEFENDANT INSTITUTIONS CONSEQUENT UPON THE COURT'S JUDGMENT, WITH A VIEW TO GRANTING HENCEFORTH - OR RESTORING - THE ALLOWANCE TO THE APPLICANTS AS FROM 1 JULY 1972, IS SAID TO CONSTITUTE A SECOND NEW FACT .

29THESE DECISIONS MIGHT BE TERMED A GENERAL CHANGE OF DIRECTION IN ADMINISTRATIVE PRACTICE, AND ARE SAID THUS TO CONSTITUTE A NEW FACT .

30FOLLOWING UPON THE COURT'S JUDGMENTS OF 7 JUNE 1972 AND THE STEPS TAKEN BY THE INSTITUTIONS, FIRST IN FAVOUR OF THE APPLICANTS INDIVIDUALLY AND SUBSEQUENTLY IN FAVOUR OF ALL THE OFFICIALS, BY THE MODIFICATIONS MADE IN THE STAFF REGULATIONS, THE PRINCIPLE OF EQUAL TREATMENT OF OFFICIALS IN ITS APPLICATION TO THE PROBLEM OF THE EXPATRIATION ALLOWANCE TO BE GRANTED TO FEMALE OFFICIALS, IS NO LONGER IN ISSUE .

31THE APPEALS ARE SOLELY FOR PAYMENT TO THE APPLICANTS OF ARREARS OF EXPATRIATION ALLOWANCE FOR THE PERIOD PRIOR TO THE DECISIONS MENTIONED .

32IT THEREFORE APPEARS THAT THE ADMISSIBILITY OF THE APPEALS MUST BE JUDGED WITH DUE REGARD TO THE NEED FOR LEGAL CERTAINTY, INDISPENSABLE TO THE PROPER FUNCTIONING OF THE COMMUNITY INSTITUTIONS, REFLECTED IN THE FIXING OF TIME LIMITS BY ARTICLE 91 OF THE STAFF REGULATIONS .

33IN ANY EVENT THE PROVISIONS OF ARTICLE 4 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS CANNOT BE TERMED 'NON-EXISTENT', ORIGINATING AS IT DOES WITH THE COMPETENT AUTHORITY AND TAKEN WITH DUE REGARD TO THE PROCEDURAL AND FORMAL CONDITIONS LAID DOWN BY THE TREATIES .

34IN THE FIRST PLACE THE PARTIES TREAT AS 'NEW FACTS' THE CIRCUMSTANCE THAT FOLLOWING UPON THE JUDGMENTS OF 7 JUNE 1972, THE PROVISION IN ARTICLE 4 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS APPEARS TO HAVE BEEN DEFECTIVE, AND ACCORDINGLY INVALID AS FROM THE COMING INTO FORCE OF THE STAFF REGULATIONS .

35SECONDLY, THEY TAKE THIS VIEW OF THE DECISIONS, CONSEQUENT UPON THE SAME JUDGMENTS OF THE COURT, TAKEN IN RESPECT OF THEM BY THE DEFENDANT INSTITUTIONS, BEARING IN MIND THAT THE EFFECT OF THESE DECISIONS WAS THE RECOGNITION WITH RETROSPECTIVE EFFECT OF THE NONVALIDITY OF THE PROVISION IN THE STAFF REGULATIONS MENTIONED .

36THE JUDGMENTS OF 7 JUNE 1972 HAVE THE AUTHORITY OF RES JUDICATA ONLY IN RELATION TO THE PARTIES INVOLVED AT THAT TIME .

37IT IS RIGHT TO POINT OUT MOREOVER THAT THEY COULD NOT HAVE PRONOUNCED THE ANNULMENT OF THE REGULATORY PROVISION INVOLVED, WITHIN THE MEANING OF ARTICLE 174, FIRST PARAGRAPH, BUT THAT THEY SIMPLY PLACED ON RECORD THE INAPPLICABILITY OF THIS PROVISION AND CONSEQUENT UPON THIS PRONOUNCED THE ANNULMENT OF THE INDIVIDUAL DECISIONS TAKEN ON THAT BASIS .

38IN THESE CIRCUMSTANCES, THE JUDGMENTS CANNOT BE RELIED UPON BY PARTIES WHO AT THE APPROPRIATE TIME OMITTED TO MAKE USE OF THE POSSIBILITIES OF APPEAL OFFERED TO THEM BY THE STAFF REGULATIONS AND BY THE TREATY .

39THE GENERAL CHANGE IN DIRECTION OF ADMINISTRATIVE PRACTICE FOLLOWING UPON THESE JUDGMENTS MUST IN THE PRESENT CIRCUMSTANCES BE CONSIDERED AS THE ANTICIPATED APPLICATION OF A FORMAL AMENDMENT IN THE STAFF REGULATIONS BUT MUST NOT BE UNDERSTOOD AS PERMITTING THE RETROSPECTIVE RE-OPENING OF A SITUATION RESULTING FROM DECISIONS TAKEN IN RELATION TO THE APPLICANTS, WHICH AT THE EXPIRY OF THE TIME LIMITS FOR APPEALS HAD BECOME FINAL .

40THESE PLEAS MUST THEREFORE BE REJECTED .

41IT FOLLOWS FROM THE FOREGOING TAKEN TOGETHER THAT THE APPEALS WERE PRESENTED OUT OF TIME AND THAT FOR THAT REASON THEY MUST BE DECLARED INADMISSIBLE .

Decision on costs

42THE APPLICANTS HAVE FAILED IN THEIR ACTIONS .

43UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

44HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES, THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY EMPLOYEES OF THE COMMUNITY ARE TO BE BORNE BY SUCH INSTITUTIONS .

Operative part

THE COURT ( SECOND CHAMBER ) HEREBY :