Avis juridique important

61965J0012

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Summary

1 . OFFICIALS - APPEALS - EXPIRY OF TIME-LIMIT - REQUEST OR COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS - DISTINCTION BETWEEN A REQUEST AND A COMPLAINT FOR THE PURPOSES OF ADMISSIBILITY

2 . OFFICIALS - APPEALS - EXPIRY OF TIME-LIMIT - REQUEST OR COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS - BAR TO RIGHT OF ACTION

3 . OFFICIALS - APPEALS - FAILURE TO ACT ON THE PART OF THE ADMINISTRATION - CONCEPT ( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 91 )

Summary

1 . WHATEVER DIFFERENCE THERE MAY BE BETWEEN A REQUEST AND A COMPLAINT NEITHER CAN MAKE AVAILABLE TO THEIR AUTHOR A FRESH PERIOD OF TIME FOR FILING APPEALS SINCE THEY RELATE TO THE LEGALITY OF A MEASURE WHICH HE HAD REFRAINED FROM CONTESTING WITHIN THE PRESCRIBED PERIOD .

2 . CF . PARAGRAPH 1, SUMMARY IN CASE 52/64, ( 1965 ) ECR 981 .

A REQUEST OR COMPLAINT THROUGH OFFICIAL CHANNELS WHICH IS NOT MADE WITHIN THE PERIOD ALLOWED FOR FILING APPEALS TO THE COURT CANNOT, UPON THE EXPIRY OF THIS PERIOD, ESCAPE BEING TIME-BARRED .

3 . CF . PARAGRAPH 2, SUMMARY IN CASE 52/64 ( 1965 ) ECR 981 .

A REPLY GIVEN BY THE ADMINISTRATION INFORMING THE OFFICIAL CONCERNED THAT HIS REQUEST OR COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS IS UNDER CONSIDERATION AMOUNTS TO A FAILURE TO GIVE A DECISION .

APART FROM THE ACTUAL PARTIES IN PROCEEDINGS BEFORE THE COURT, THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE ARE, THE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED . SUCH A JUDGMENT CAN ONLY CONSTITUTE A NEW FACTOR AS REGARDS THOSE PERSONS .

APPLICATION FOR THE CLASSIFICATION OF THE APPLICANT IN GRADE L/A 4, STEP 8,

IN CASE 12/65

FRED BAUER, AN OFFICIAL OF THE EUROPEAN ECONOMIC COMMUNITY, ASSISTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, LECTURER AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCAT-AVOUE, 6 RUE WILLY-GOERGEN,

APPLICANT,

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION FOR THE CLASSIFICATION OF THE APPLICANT IN GRADE L/A 4, STEP 8,

ADMISSIBILITY

THE APPLICANT HAS REFERRED TO THE COURT THE COMMISSION'S FAILURE TO TAKE A DECISION WITH REGARD TO HIS REQUEST OR COMPLAINT OF 30 OCTOBER 1964, RELATING TO THE CLASSIFICATION ACCORDED HIM BY THE DECISION OF 23 SEPTEMBER 1963 .

ACCORDING TO THE DEFENDANT, THE APPLICATION IS REALLY DIRECTED AGAINST THE DECISION OF 23 SEPTEMBER 1963 AND IS CONSEQUENTLY INADMISSIBLE BECAUSE IT IS OUT OF TIME . UNDER ARTICLE 91(2 ) OF THE STAFF REGULATIONS OF OFFICIALS APPEALS TO THE COURT SHALL BE FILED WITHIN THREE MONTHS FROM THE DATE OF NOTIFICATION OF THE DISPUTED DECISION TO THE PERSON CONCERNED . A REQUEST OR COMPLAINT THROUGH OFFICIAL CHANNELS WHICH HAS NOT BEEN SUBMITTED WITHIN THE SAID PERIOD CANNOT THEREFORE AVOID THE TIME-BAR RESULTING FROM THE EXPIRY OF THIS PERIOD . IN THE PRESENT CASE THE DECISION AS TO CLASSIFICATION OF 23 SEPTEMBER 1963 WAS NOTIFIED TO THE APPLICANT ON 30 SEPTEMBER 1963 AT THE LATEST . HIS REQUEST OR COMPLAINT OF 30 OCTOBER 1964 WAS THUS SUBMITTED AFTER THE EXPIRY OF THE PERIOD OF THREE MONTHS PRESCRIBED BY ARTICLE 91(2 ) OF THE STAFF REGULATIONS .

THE APPLICANT MAINTAINS THAT HE SUBMITTED TO THE COMMISSION NOT A COMPLAINT, BUT A REQUEST ' THE PURPOSE OF WHICH WAS THE RECOGNITION OF A RIGHT '. HE EMPHASIZES THAT IT IS NOT NECESSARY FOR SUCH A REQUEST TO BE SUBMITTED WITHIN A PRESCRIBED PERIOD .

IT IS NOT NECESSARY TO GO INTO THE DISTINCTION WHICH THE APPLICANT MAKES BETWEEN THE TWO TERMS EMPLOYED BY ARTICLE 90 OF THE STAFF REGULATIONS . IN FACT NEITHER A COMPLAINT NOR A REQUEST ON BEHALF OF THE PERSON SUBMITTING IT IS CAPABLE OF CAUSING THE PERIOD FOR LODGING AN APPEAL TO START TO RUN AFRESH, WHEN SUCH A COMPLAINT OR REQUEST RELATES TO THE LEGALITY OF A MEASURE WHICH HE HAS REFRAINED FROM CONTESTING WITHIN THE PRESCRIBED PERIOD .

THE NOTIFICATION TO THE APPLICANT THAT HIS REQUEST OR COMPLAINT WAS UNDER CONSIDERATION IS NOT OF SUCH A NATURE AS TO CAUSE THE PERIOD TO START TO RUN AFRESH UNDER ARTICLE 91 . IN FACT SUCH AN INTERIM REPLY AMOUNTS TO A FAILURE TO GIVE A DECISION, WITHIN THE MEANING OF ARTICLE 91 .

IT THEREFORE DOES NOT CAUSE THE TIME FOR BRINGING AN APPEAL TO THE COURT TO START TO RUN AFRESH .

THE APPLICANT RELIES ON THE NEW FACTOR CONSTITUTED, ACCORDING TO HIM, BY THE JUDGMENT OF 7 JULY 1964 IN CASE 70/63 IN A DISPUTE BETWEEN THE COURT AND ONE OF ITS SERVANTS .

THIS JUDGMENT ANNULLED AN INDIVIDUAL DECISION CONCERNING THE CLASSIFICATION OF THE SAID SERVANT .

THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE TAKEN BY AN INSTITUTION ARE THE PARTIES TO THE ACTION AND THOSE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED . SUCH A JUDGMENT CAN ONLY CONSTITUTE A NEW FACTOR AND CAUSE THE PERIODS FOR BRINGING APPEALS TO RUN AFRESH AS REGARDS THESE PARTIES AND PERSONS .

AS THIS IS NOT THE CASE IN THIS INSTANCE, THE APPLICATION IS THEREFORE INADMISSIBLE .

Decision on costs

THE APPLICANT HAS FAILED IN HIS APPLICATION .

UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS;

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . RULES THAT APPLICATION 12/65 IS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE ACTION, WITH THE EXCEPTION OF THOSE INCURRED BY THE DEFENDANT .