61971J0017

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OFFICIALS - DISPUTES WITH THE ADMINISTRATION - ACT CONFIRMING A PREVIOUS ACT - COMPLAINT AGAINST SUCH A MEASURE - PERIOD PRESCRIBED FOR APPEAL AGAINST THE PREVIOUS ACT - NO RE-OPENING

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 91 )

A COMPLAINT BROUGHT AGAINST EVEN AN IMPLIED DECISION WHICH CONSTITUTES CONFIRMATION OF A PREVIOUS DECISION CANNOT RE-OPEN THE PERIOD PRESCRIBED UNDER THE STAFF REGULATIONS FOR AN APPEAL AGAINST THE PREVIOUS DECISION .

IN CASE 17/71

LEANDRO TONTODONATI, AN OFFICIAL AT THE EURATOM JOINT RESEARCH CENTRE AT ISPRA, RESIDING AT 18 VIA BLIGNY, VARESE, REPRESENTED BY GIUSEPPE PELLICINI, OF THE VARESE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL, 71 RUE DES GLACIS, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, ASSISTED BY GIORGIO PINCHERLE OF THE COMMISSION' S LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR ANNULMENT OF THE IMPLIED REJECTION BY THE DEFENDANT OF THE APPLICANT' S REQUEST TO BE RECLASSIFIED IN CATEGORY B, CAREER BRACKET B 3/B 2, WITH RETROACTIVE EFFECT FROM 1 JANUARY 1963, AND PAYMENT OF THE SALARY CORRESPONDING TO THIS CLASSIFICATION,

1 BY LETTER OF 8 DECEMBER 1970, ADDRESSED TO THE PRESIDENT OF THE COMMISSION, THE APPLICANT LODGED A COMPLAINT WITH THE OBJECT OF SECURING HIS CLASSIFICATION IN CATEGORY B, CAREER BRACKET B 3/B 2, WITH RETROACTIVE EFFECT FROM 1 JANUARY 1963 . SINCE HE DID NOT RECEIVE ANY REPLY TO THE COMPLAINT, HE BROUGHT THE PRESENT ACTION BEFORE THE COURT IN PURSUANCE OF THE SECOND SUBPARAGRAPH OF ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS .

2 IN A STATEMENT ON A PROCEDURAL ISSUE, THE DEFENDANT COMMISSION RAISED AN OBJECTION OF ADMISSIBILITY ON THE GROUND THAT THE IMPLIED REJECTION, WHICH WAS A CONSEQUENCE OF THE SILENCE OF THE PRESIDENT OF THE COMMISSION, WAS MERELY CONFIRMATION OF PREVIOUS DECISIONS WHICH COULD NO LONGER BE CONTESTED .

3 UNDER ARTICLE 91 OF THE STAFF REGULATIONS, APPEALS AGAINST THE ACTS REFERRED TO IN THAT ARTICLE MUST BE LODGED WITHIN A PERIOD OF THREE MONTHS . THE OFFICIAL CONCERNED CANNOT REVIVE A LIMITATION PERIOD WHICH HE HAS ALLOWED TO LAPSE BY LODGING A COMPLAINT THROUGH OFFICIAL CHANNELS ON THE SAME SUBJECT-MATTER AS AN ACT WHICH CAN NO LONGER BE CONTESTED AND BY INITIATING PROCEEDINGS BEFORE THE COURT ON AN ALLEGED IMPLIED REJECTION OF THAT COMPLAINT .

4 IT IS CLEAR FROM THE WORDING OF THE COMPLAINT OF 8 DECEMBER 1970 THAT ITS OBJECT WAS TO OBTAIN THE APPLICANT' S RE-CLASSIFICATION WITH EFFECT FROM 1 JANUARY 1963 . BY DECISION OF 20 FEBRUARY 1963 OF THE EAEC COMMISSION, COMMUNICATED ON 16 JULY 1963, THE APPLICANT, A SERVANT OF THE COMMUNITY SINCE 1959, WAS " INTEGRATED " AS CHIEF CLERK AND CLASSIFIED IN GRADE C 1, FIRST STEP, WITH EFFECT FROM 1 JANUARY 1962 . BY COMPLAINT OF 28 FEBRUARY, 1963, ADDRESSED TO THE PRESIDENT OF THE EAEC COMMISSION, HE ASKED TO BE CLASSIFIED IN A HIGHER GRADE . HE RECEIVED A REPLY BY LETTER OF 19 SEPTEMBER 1963 STATING THAT AS THE COMMISSION DID NOT FIND THAT THERE WAS ANY INCONSISTENCY BETWEEN HIS GRADE AND THE LEVEL OF HIS DUTIES, IT COULD NOT ACCEPT THIS COMPLAINT .

5 NEITHER THE DECISION TO INTEGRATE HIM NOR THE COMMISSION' S REJECTION WAS CHALLENGED WITHIN THE PERIOD PRESCRIBED .

6 IT IS TRUE THAT, IN THE COURSE OF THE WRITTEN AND ORAL PROCEDURE, THE APPLICANT CONTENDED THAT AT THE BEGINNING OF 1969 NEW CIRCUMSTANCES AROSE, WHICH CHANGED HIS POSITION AND JUSTIFIED A RE-CLASSIFICATION . NEVERTHELESS, THE COMPLAINT THROUGH OFFICIAL CHANNELS, THE IMPLIED REJECTION OF WHICH IS THE SUBJECT OF THE PRESENT PROCEEDINGS, SOUGHT HIS RE-CLASSIFICATION WITH RETROACTIVE EFFECT FROM 1 JANUARY 1963 AND RELIED SOLELY ON CIRCUMSTANCES WHICH EXISTED PRIOR TO 1968 . NO REFERENCE TO THE NEW CIRCUMSTANCES WHICH ARE ALLEGED TO HAVE ARISEN IN 1969 WAS MADE IN THAT COMPLAINT AND SUCH REFERENCE WOULD, MOREOVER, BE INCOMPATIBLE WITH ITS SUBJECT-MATTER INASMUCH AS IT WAS CONCERNED WITH RE-CLASSIFICATION WITH EFFECT FROM 1 JANUARY 1963 .

7 GROUNDS WHICH HAVE NOTHING TO DO WITH THE SUBJECT-MATTER OF THE COMPLAINT OF 8 DECEMBER 1970 CANNOT BE RELIED UPON TO SUPPORT OR ESTABLISH THE ADMISSIBILITY OF AN APPEAL AGAINST THE IMPLIED REJECTION OF THE COMPLAINT .

8 THE APPLICATION IS, IN CONSEQUENCE, INADMISSIBLE .

9 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

NEVERTHELESS UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .