61964J0046

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PROCEDURE - JUDGMENT GRANTING ANNULMENT - LEGAL EFFECTS - LIMITED TO THE PARTIES AND TO THE PERSONS DIRECTLY CONCERNED BY THE MEASURE ANNULLED - JUDGMENT CONSTITUTING A NEW FACT - CONCEPT

CF . PARAGRAPH 4, SUMMARY IN CASE 43/64 ( 1965 ) ECR 385 .

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 .

IN CASE 46/64

GOETZ SCHOFFER, AN OFFICIAL OF THE EUROPEAN ECONOMIC COMMUNITY, RESIDING AT 147 AVENUE MADOUX, BRUSSELS 15, ASSISTED BY J . MECHELINCK, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE AT THE COUR D' APPEL, LUXEMBOURG, 27 AVENUE GUILLAUME,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, BRUSSELS, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, 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,

APPLICATION FOR THE ANNULMENT OF THE DECISION REJECTING THE APPLICANT'S REQUEST DATED 19 JUNE 1964 CONCERNING HIS GRADING, BEING A DECISION IMPLIED FROM THE FACT THAT NO REPLY WAS GIVEN WITHIN TWO MONTHS OF THAT DATE;

P.815

I - ADMISSIBILITY

THE DEFENDANT RAISES AN OBJECTION OF INADMISSIBILITY ASSERTING THAT THE APPLICATION WAS NOT LODGED IN DUE TIME .

P.816

( A ) THE PRESENT APPLICATION IS BROUGHT UNDER ARTICLE 91(2 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND OF THE EAEC AGAINST THE IMPLIED DECISION, TO BE INFERRED FROM THE ABSENCE OF AN EXPRESS DECISION, REJECTING THE REQUEST MADE BY THE APPLICANT ON 19 JUNE 1964 TO BE CLASSIFIED IN GRADE A3 AS FROM 1 JANUARY 1962 . AN ANALYSIS OF THE SAID IMPLIED DECISION SHOWS THAT IT CONFIRMED THE DECISION TAKEN ON 21 DECEMBER 1962 WHEREBY THE APPLICANT WAS INTEGRATED UNDER THE STAFF REGULATIONS, AND APPOINTED AN OFFICIAL IN GRADE A4 . IT IS NOT DISPUTED THAT THE APPLICANT LODGED NEITHER AN ADMINISTRATIVE COMPLAINT NOR AN APPEAL TO THE COURT AGAINST THIS LATTER DECISION WITHIN THE TIME-LIMIT LAID DOWN IN THE SAID ARTICLE 91 . THIS IS EQUALLY TRUE IF IT BE CONSIDERED THAT THIS TIME-LIMIT STARTS TO RUN FROM THE PUBLICATION OF THE TABLE OF DEFINITIONS OF DUTIES AND POWERS ATTACHING TO EACH POST, AS PRESCRIBED BY ARTICLE 5(4 ) OF THE STAFF REGULATIONS OF OFFICIALS, AND PUBLISHED BY THE DEFENDANT IN 1963 .

HOWEVER, THE APPLICANT RELIES ON TWO EVENTS, ASSERTING THAT THEY CONSIST OF NEW FACTS ENABLING THE PERIOD FOR LODGING AN APPEAL AGAINST THE DECISION CLASSIFYING HIM IN GRADE A4 TO START TO RUN AFRESH . HE THINKS THAT ONE OF THESE NEW FACTS WAS THE JUDGMENT GIVEN BY THE COURT ON 19 MARCH 1964 IN JOINED CASES 20 AND 21/63 ( MAUDET V COMMISSION OF THE EEC, ( 1964 ) ECR 215 ET SEQ .), AND THAT THE OTHER WAS THE APPOINTMENT OF ANOTHER ASSISTANT, MR STEFANI, TO GRADE A3 .

( B ) AS REGARDS THE JUDGMENT IN CASES 20 AND 21/63, 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 .

IT IS NOT CONTESTED THAT THE JUDGMENT IN CASES 20 AND 21/63 ANNULLED A DECISION OF THE COMMISSION OF THE EEC REFUSING TO REGULARIZE THE POSITION OF THE PARTY CONCERNED IN ACCORDANCE WITH THE PRINCIPLE THAT DUTIES SHOULD CORRESPOND TO THE GRADES SET OUT IN ANNEX I TO THE STAFF REGULATIONS OF OFFICIALS . SINCE THIS DECISION ONLY DEALT WITH THE INDIVIDUAL POSITION OF THE PARTY CONCERNED, IT CANNOT DIRECTLY CONCERN THIRD PARTIES, SUCH AS THE APPLICANT . IN THESE CIRCUMSTANCES THE SAID JUDGMENT CANNOT BE CONSIDERED AS A NEW FACT AS REGARDS THE APPLICANT, ENABLING THE PERIOD FOR LODGING AN APPEAL, WHICH HAS EXPIRED IN THIS CASE, TO START TO RUN AFRESH .

( C ) AS REGARDS THE APPOINTMENT OF MR STEFANI, THE APPLICANT OBVIOUSLY THINKS THAT THIS CONSTITUTES A DECISIVE CHANGE IN THE DEFENDANT'S ADMINISTRATIVE PRACTICE . IT IS SUFFICIENT FOR THE PURPOSES OF THIS CASE TO NOTE THAT THIS ALLEGATION IS CONTRARY TO STATEMENTS MADE BY THE APPLICANT HIMSELF . IT IS THEREFORE UNNECESSARY TO EXAMINE THE PREMISE ACCORDING TO WHICH SUCH A DECISIVE CHANGE CONSTITUTES A NEW FACT ENABLING THE PERIOD FOR LODGING AN APPEAL TO START TO RUN AFRESH . FIRST OF ALL IT IS IN FACT CLEAR FROM THE ALLEGATIONS MADE BY THE TWO PARTIES THAT IN MAKING THE SAID APPOINTMENT THE DEFENDANT DID NO MORE THAN APPLY THE CRITERIA WHICH IT HAD ADOPTED IN A DECISION OF PRINCIPLE ADOPTED IN NOVEMBER 1962 AND ACCORDING TO WHICH IT WOULD THENCEFORTH DECIDE ' FROM CASE TO CASE ON THE GRADING OF ASSISTANTS '. FURTHERMORE THE APPLICANT HAS HIMSELF CLAIMED THAT DURING RECENT YEARS AND AMONGST THE ASSISTANTS TO DIRECTORS-GENERAL THE NUMBER OF OFFICIALS CLASSIFIED IN GRADE A3 HAS DECREASED FROM 5 OUT OF 9 TO 4 OUT OF 9 .

( D ) FINALLY THE APPLICANT ARGUES IN A GENERAL WAY THAT THE OBLIGATION ON THE PART OF INSTITUTIONS TO GRADE THEIR OFFICIALS IN A MANNER WHICH IS IN ACCORDANCE WITH THE STAFF REGULATIONS, AND TO AVOID DISCRIMINATION, IS NOT LIMITED IN TIME . IN ITSELF THIS ASSERTION IS CORRECT BUT IT IS NOT RELEVANT BECAUSE IT FAILS TO DISTINGUISH BETWEEN THE ADMISSIBILITY OF THE APPLICATION AND ITS SUBSTANCE .

IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT THE APPLICATION IS INADMISSIBLE .

THE APPLICANT HAS FAILED IN HIS APPLICATION .

THEREFORE, PURSUANT TO THE COMBINED PROVISIONS OF ARTICLE 69(2 ) AND 70 OF THE RULES OF PROCEDURE, HE MUST BEAR THE COSTS OF THE PROCEEDINGS, EXCEPT THOSE INCURRED BY THE DEFENDANT .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS OF THE PROCEEDINGS, EXCEPT THOSE INCURRED BY THE DEFENDANT .