Avis juridique important

61964J0052

European Court reports French edition Page 01211 Dutch edition Page 01264 German edition Page 01290 Italian edition Page 01174 English special edition Page 00981 Danish special edition Page 00149 Greek special edition Page 00217 Portuguese special edition Page 00265

Summary

1 . 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 .

2 . 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 .

3 . 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 .

Parties

IN CASE 52/64

FRED PFLOESCHNER, HEAD OF INTERPRETATION SECTION AT THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED AND ASSISTED BY FERNAND PROBST, ADVOCATE AT THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 26 AVENUE DE LA LIBERTE,

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 OFFICE 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/A4, STEP 5;

Grounds

ADMISSIBILITY

THE APPLICANT HAS REFERRED TO THE COURT THE FAILURE OF THE COMMISSION TO TAKE A DECISION ON HIS LETTERS OF 24 JULY AND 30 SEPTEMBER 1964 CONCERNING THE CLASSIFICATION AWARDED HIM BY DECISION OF 23 SEPTEMBER 1963 . THE DEFENDANT MAINTAINS THAT HIS APPLICATION WAS IN FACT AGAINST THE DECISION OF 23 SEPTEMBER 1963 AND THAT IT WAS THEREFORE INADMISSIBLE FOR BEING OUT OF TIME .

UNDER ARTICLE 91(2 ) OF THE STAFF REGULATIONS OF OFFICIALS APPEALS MUST BE FILED WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF NOTIFICATION TO THE PERSON CONCERNED OF THE DECISION IN DISPUTE .

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

IN THIS INSTANCE THE DECISION OF 23 SEPTEMBER 1963 CLASSIFYING THE APPLICANT WAS NOTIFIED TO HIM BY 31 OCTOBER 1963 AT THE LATEST . HIS REQUEST OR COMPLAINT OF 24 JULY 1964 WAS THUS MADE AFTER THE EXPIRY OF THE PERIOD OF THREE MONTHS LAID DOWN IN ARTICLE 91(2 ) OF THE STAFF REGULATIONS .

THE FACT THAT THE APPLICANT WAS INFORMED THAT HIS REQUEST OR COMPLAINT WAS UNDER CONSIDERATION CANNOT CAUSE THIS PERIOD TO START TO RUN AFRESH . IN FACT, SUCH A TEMPORIZING REPLY AMOUNTS TO A FAILURE TO GIVE A DECISION WITHIN THE MEANING OF ARTICLE 91 . IT COULD NOT, THEREFORE, RE-OPEN THE PERIOD FOR BRINGING AN APPEAL TO THE COURT .

THE APPLICANT RELIES ON THE NEW FACTOR WHICH, HE MAINTAINS, IS CONSTITUTED BY THE JUDGMENT IN CASE 70/63 DELIVERED ON 7 JULY 1964 IN AN ACTION BETWEEN THE COURT AND ONE OF ITS SERVANTS . THE JUDGMENT ANNULLED AN INDIVIDUAL DECISION REGARDING THE CLASSIFICATION OF THAT SERVANT .

THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE TAKEN BY AN INSTITUTION ARE 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 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 BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( SECOND CHAMBER ) HEREBY :

1 . DISMISSES APPLICATION NO 52/64 AS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE ACTION, APART FROM THOSE INCURRED BY THE DEFENDANT .