OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 21 OCTOBER 1965 (*1)

Mr President

Members of the Court,

Just as in Case 20/65, the applicant in the case upon which I am about to deliver my opinion is an official of the Court. He performs the duties of a Principal Assistant (Grade Bl in the Staff Regulations of officials) in the Internal Services Department of the Administration of the Court.

After the entry into force of the new Staff Regulations of officials and the adoption of the definitions of posts by the Court, a decision of the appointing authority taken on 14 March 1963 classified the applicant in Grade Bl, Step 1 of the salary-scale, taking his duties into account. He was notified of this decision at the time but he did not contest it. Only after delivery of the judgment in Case 70/63, convinced that the latter had fixed new principles of interpretation for analogous cases, did he address a letter on 29 September 1964 to the President of the Court asking for his grading to be revised. The President replied to this request by a letter of 8 October 1964 which stated that the decision of 1963 giving the applicant a grading was of a definitive nature. It could only be called in question for compelling reasons. Such reasons were not to foe found in the judgment in Case 70/63 which dealt exclusively with the position of another official.

It is against this decision that the applicant brought his appeal on 5 December 1964. In his conclusions he claims that the Court should:

—annul the decision of the President of 8 October 1964;

—declare the grading given to him on 14 March 1963 to be illegal;

—declare that he must be classified in Grade Bl, Step 2, as from 1 January 1962 with eighteen months’ seniority, and order the Court to pay the appropriate arrears of salary.

The administration of the Court of Justice opposes these claims by arguing in the first place that the application is inadmissible. Secondarily it requests the Court to dismiss the appeal as unfounded.

At the close of the written procedure the applicant lodged an application on a procedural issue based on Article 91 of the Rules of Procedure. In it he says that before considering the substance of the case it would be useful to clarify two preliminary questions. These are: first, what are the time-limits for making an appeal through official channels under Article 90 of the Staff Regulations of officials; secondly, what effects can a judgment have as regards persons who were not parties to the case, and in particular when must a judgment be considered as a new fact on which an application may be based quite apart from rights of action existing earlier.

As a result of this request the Court decided to hear the parties on the question of admissibility alone during the oral proceedings of 6 October 1965. Therefore the examination which I am about to undertake will also be confined to this aspect of the appeal.

Legal discussion

In its written observations on the application on a procedural issue, made by the applicant the defendant has argued in the first place that it was not possible to entertain it.

In fact this point of view does not seem to be completely without foundation. The applicant submitted to the Court two legal questions one of which seeks to know whether it is possible to consider the judgment in Case 70/63 as a new fact for him, while the other appears on the face of it to be aimed at obtaining an abstract reply, as it were a kind of legal advice. Furthermore he has failed to draft specific conclusions in his application. Thus it seems that the conditions of Article 91 of the Rules of Procedure are not fulfilled either as to substance or as to form.

However I have decided not to advise you expressly to dismiss the application on a procedural issue as inadmissible. This is because in my opinion it is sufficiently clear that in submitting it the applicant was trying to obtain in advance a solution to certain essential problems of admissibility which have arisen in his case. Indeed this is also the meaning which the Court has given to the applicant's pleading, which is why it requested the parties to limit their observations during the oral proceedings of 6 October to the admissibility of the appeal. Furthermore under our Rules of Procedure (Article 92), if necessary the Court may consider such a matter of its own motion, so that whatever deficiencies there may be in the application on a procedural issue, this need not in any event prevent the Court from deciding as a preliminary issue whether the appeal is admissible.

In the applicant's view the examination of the question of the admissibility of the appeal to the Court depends mainly on the question whether a time-limit exists for submitting an appeal through official channels under Article 90 of the Staff Regulations of officials, and if it does, what the relevant period is However as regards this it seems to me that in view of the latest case-law of the Court even the applicant's case no longer presents any problems.

By looking simply at the decision of 14 March 1963, which settled the applicant's grading, we observe that he should have brought an application for the annulment of this decision within three months, or (within the same period) he should have submitted an appeal through official channels under Article 90 which, depending upon the outcome of the administrative procedure, would have been determined in annulment proceedings or in proceedings for failure to act. As regards this I refer to the judgment in Case 30/64, Fonzi v Euratom Commission. This contains observations on this subject which are perfectly clear. Since the applicant did not follow either of these two courses in 1963, in principle he cannot recontest the administrative decision taken at the time unless he proves the existence of a decisive fact relating to his legal position.

Let us now suppose, as regards the question of limitation periods, that the judgment in Case 70/63 does constitute a new fact for the applicant. In such a case there could be no doubt that he had to submit within three months from the day when he learned of the new fact an administrative complaint requiring the administration to draw the necessary consequences from the new fact. What actually happened did indeed comply with this as the dates prove (7 July 1964 for the delivery of the judgment and 29 September 1964 for the letter of the applicant to the President of the Court. Thus from the point of view of the time-limits in Article 90 of the Staff Regulations of officials, there are no special problems to solve in the present case.

In reality the solution to the case depends exclusively on the question whether it is really possible to consider the judgment in Case 70/63 as a new fact allowing the applicant to call in question the decision of 1963 concerning his grading. For it is certain that the letter of the President of 8 October 1964 does not constitute a decision in its own right on the applicant's situation, which could have opened a new limitation period. On the contrary this letter expressly states that having regard to the definitive nature of the decision of 14 March 1963 the President of the Court is not in a position to examine its terms afresh.

In my opinion, after judgments delivered this summer by the Court its case-law is so exhaustive as to the circumstances in which one of its judgments can constitute a new fact that not even those of the present case which are peculiar to it can give rise to new considerations.

The Court has very clearly and repeatedly stated that a judgment delivered on the application of one official deals with the situation of that applicant alone and does not have effects extending beyond the relationship between the parties themselves. A judgment cannot be considered as a new fact as regards officials who were not parties to the case and who wish to bring an application unless the measure which the judgment annuls is of direct concern to the applicant.

This is why the Court did not accept the proposition that the judgment in Case 70/63 constitutes a new fact as regards certain applications brought by officials of the Councils of Ministers, and this is perfectly understandable because none of the parties was involved in the dispute solved by the judgment in question. But furthermore the Court has also refused to agree that one of its judgments was in the nature of a new fact as regards a later case in which the defendant was the same as in the first case (Case 46/64, Schoffer v Commission of the EEC). Thus it is impossible to take a different view when the defendant is the administration of the Court and when a judgment delivered in a previous case brought against the Court is relied on as the new fact.

This means that there is just one way of understanding the criteria for the existence of a ‘new fact’ evolved by the Court of Justice in its decisions in several cases brought by officials. It is that there is only a new fact if a previous judgment is relied on by a person who was a party to the previous case (this is what happened in the SNUPAT case) or alternatively by a person who is directly concerned by the annulment of a measure in the judgment. Neither the one nor the other of these possibilities applies to the applicant in the present case. In particular it should be emphasized that while the annulment of the decision giving a grading to the applicant in Case 70/63 was of direct concern to the administration of the Court in its capacity as appointing authority, that annulment is not of direct concern to the applicant in the present case, because there is no direct legal relationship between him and the applicant in Case 70/63.

One might be tempted to find this case-law unduly strict, because when a number of similar cases have been settled by the administration, this law obviously makes it more difficult to submit in the first instance just one test case to the Court by common accord amongst all the interested parties, and to settle the other cases in the light of the result of the proceedings before the Court. But at all events it does have the advantage of creating situations which are clear upon the expiry of certain limitation periods. This amounts to saying that it promotes legal certainty, which is particularly necessary to the administration in order to carry out its functions.

3. Summary

In conclusion, therefore, I am of the opinion that: since the applicant only submitted his administrative complaint to the President of the Court after the expiry of the limitation period of three months (running from the time when the decision of 14 March 1963 was notified to him), and since the judgment in Case 70/63 does not constitute a new fact for him which would allow him to call in question the previous and definitive decision, the present appeal must be dismissed as inadmissible. The question of costs should be settled in accordance with Article 70 of the Rules of Procedure.

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(*1) Translated from the German.