61959J0034

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1 . RULES OF PROCEDURE - REPLACEMENT - EFFECTS ON PERIODS FOR INSTITUTING PROCEEDINGS

2 . PERIODS - EXPIRY

1 . THE ENTRY INTO FORCE OF NEW RULES OF PROCEDURE OF THE COURT OF JUSTICE AFFECTS NEITHER THE RIGHTS OF ACTION ACCRUED BEFORE THIS DATE NOR THE EXTINGUISHMENT OF RIGHTS DURING THE TIME WHEN THE FORMER RULES WERE IN FORCE .

2 . AN APPLICATION RELATING TO THE CONSEQUENCES OF A DECISION WHICH THE APPLICANT MAY NO LONGER CONTEST IS OUT OF TIME AND THEREFORE INADMISSIBLE .

IN CASE 34/59

RAYMOND ELZ, AN OFFICIAL OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, RESIDING AT 169 RUE DE SOLEUVRE, DIFFERDANGE, ASSISTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, RESIDING AT 22 RUE DE LA COTE D'EICH, LUXEMBOURG, WITH AN ADDRESS FOR SERVICE AT THE OFFICES OF ALEX BONN, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, RAYMOND BAEYENS, ACTING AS AGENT, ASSISTED BY CYR CAMBIER, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE AT ITS OFFICES AT 2, PLACE DE METZ, LUXEMBOURG, DEFENDANT,

P . 105

THE ADMISSIBILITY OF THE ACTION

IN THIS CASE IT IS ESTABLISHED, AND IT IS IN FACT COMMON GROUND AS BETWEEN THE PARTIES, THAT IN SO FAR AS IT RELATES TO THE DECISION OF THE PRESIDENT OF THE HIGH AUTHORITY OF 9 JULY 1956 AND THE REFUSAL IMPLIED FROM THE FAILURE TO REPLY TO THE LETTERS OF 5 AUGUST AND 25 SEPTEMBER 1956 ADDRESSED TO HIM, THE PRESENT APPLICATION WAS NOT MADE WITHIN THE TIME-LIMIT PRESCRIBED IN ARTICLE 2 OF THE RULES OF PROCEDURE OF THE COURT OF 21 FEBRUARY 1957 FOR DISPUTES REFERRED TO IN ARTICLE 58 OF THE STAFF REGULATIONS OF THE EUROPEAN COAL AND STEEL COMMUNITY .

THE APPLICANT ARGUES THAT THESE RULES WERE ABROGATED AND REPLACED BY THE RULES OF PROCEDURE OF THE COURT OF 3 MARCH 1959 WHICH NO LONGER PROVIDE ANY TIME-LIMIT FOR ACTIONS BY SERVANTS OF THE COMMUNITIES AND HE FURTHER STATES THAT THE PRESENT PROCEEDINGS WERE INSTITUTED ON 15 JULY 1959 UNDER THE TERMS OF THE NEW RULES OF PROCEDURE .

P . 106

NEVERTHELESS IT IS NOT NECESSARY TO EXAMINE THE CONSEQUENCES OF THE FAILURE TO PROVIDE A TIME-LIMIT FOR ACTIONS - THE COURT DOES NOT INTEND TO UNDERTAKE SUCH AN EXAMINATION IN THE CONTEXT OF THIS CASE - AS THIS FAILURE CANNOT BE SUCH AS TO REVIVE A RIGHT OF ACTION FOR THE BRINGING OF WHICH THE PERIOD PRESCRIBED IN THE FORMER RULES HAD EXPIRED LONG BEFORE THE ENTRY INTO FORCE OF THE NEW RULES OF PROCEDURE . ON THE CONTRARY, THE ENTRY INTO FORCE OF THE NEW RULES OF PROCEDURE AFFECTS NEITHER THE RIGHTS OF ACTION ACCRUED BEFORE THAT DATE NOR THE EXTINGUISHMENT OF RIGHTS DURING THE TIME WHEN THE FORMER RULES WERE IN FORCE .

IN THE COURSE OF THE ORAL PROCEEDINGS THE APPLICANT FURTHER ALLEGED THAT AS THE CONTESTED DECISIONS OCCURRED BEFORE THE ENTRY INTO FORCE OF THE RULES OF PROCEDURE OF 21 FEBRUARY 1957 HE HAD ACQUIRED AN UNLIMITED RIGHT OF ACTION .

THIS VIEW MUST BE REJECTED SINCE ONE OF THE MAIN PURPOSES OF THE RULES OF 1957 WAS PRECISELY TO FILL IN THE SUBSTANTIAL GAP EXISTING IN THE STAFF REGULATIONS OF OFFICIALS BY PLACING AN EXACT TIME-LIMIT UPON THE RIGHTS OF ACTION OF SERVANTS OF THE COMMUNITIES .

THE APPLICANT SECONDLY CLAIMS THAT HIS ACTION IS ALSO DIRECTED AGAINST THE IMPLIED REFUSAL TO BE INFERRED FROM THE FAILURE TO REPLY TO HIS LETTER OF 5 MAY 1959 .

HOWEVER, THIS LETTER MERELY REITERATES THE OBJECTIONS ALREADY FORMULATED BY THE APPLICANT DURING 1956 AND IS DIRECTED AGAINST THE FACT THAT THE CONSEQUENCES OF THE DECISION TAKEN AT THAT TIME STILL PERSIST IN 1959 .

ACCORDINGLY, THE ACTION AGAINST THE IMPLIED REFUSAL REFERRED TO IN PRACTICE CONSTITUTES NOTHING MORE THAN AN ATTEMPT TO ACQUIRE A FRESH RIGHT OF ACTION AGAINST A DECISION WHICH THE APPLICANT WAS NO LONGER ABLE TO CONTEST .

FOR THE ABOVEMENTIONED REASONS THE ACTION MUST BE RULED INADMISSIBLE AS BEING OUT OF TIME .

THE APPLICANT HAS FAILED IN HIS APPLICATION AND MUST THEREFORE BE ORDERED TO PAY THE COSTS .

ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT PROVIDES THAT IN ACTIONS REFERRED TO IN ARTICLE 95 COSTS INCURRED BY THE INSTITUTIONS SHALL BE BORNE BY THEM AND THEREFORE THE ORDER THAT THE APPLICANT SHALL BEAR THE COSTS DOES NOT INCLUDE THE COSTS INCURRED BY THE DEFENDANT .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .