61985J0214

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1 . MEASURES ADOPTED BY THE INSTITUTIONS - WITHDRAWAL - CONDITIONS - ADOPTION OF A FURTHER MEASURE REPEALING OR REPLACING THE EARLIER MEASURE

2 . OFFICIALS - APPLICATIONS TO THE COURT - ACT ADVERSELY AFFECTING THE OFFICIAL - PROMISE TO RECONSIDER A DECISION - NO WITHDRAWAL - INITIAL DECISION UPHELD - CONFIRMATORY MEASURE

1 . AN ACT OF A COMMUNITY INSTITUTION MAY BE WITHDRAWN ONLY BY AN ACT OF THE SAME INSTITUTION WHICH EITHER EXPRESSLY REPEALS THE EARLIER DECISION OR CONTAINS A NEW DECISION TAKING ITS PLACE .

2 . A SIMPLE PROMISE MADE BY THE ADMINISTRATION TO AN OFFICIAL TO RECONSIDER A PREVIOUS DECISION ADDRESSED TO HIM CANNOT BE REGARDED AS A DECISION WITHDRAWING THE EARLIER ONE, AND A DECISION TO THE EFFECT THAT THERE IS NO REASON TO ALTER THE ORIGINAL DECISION, ON THE GROUND THAT THE CIRCUMSTANCES TAKEN INTO ACCOUNT WERE CORRECTLY ASSESSED, MUST BE REGARDED AS PURELY CONFIRMATORY .

IN CASE 214/85

SANDRO GHERARDI DANDOLO, A RETIRED OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY XAVIER LEURQUIN, AVOCAT, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR NICKTS, PROCESS SERVER, 87 AVENUE GUILLAUME,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER DIMITRIOS GOULOUSSIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF A DECISION OF 20 JULY 1984 BY WHICH THE COMMISSION FIXED THE AMOUNT OF MR GHERARDI DANDOLO' S INVALIDITY PENSION ON THE BASIS OF THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES,

THE COURT ( FIRST CHAMBER )

COMPOSED OF : F . SCHOCKWEILER, PRESIDENT OF CHAMBER, G . BOSCO AND R . JOLIET, JUDGES,

ADVOCATE GENERAL : M . DARMON

REGISTRAR : H . A . RUEHL, PRINCIPAL ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 10 DECEMBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 4 FEBRUARY 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 16 JULY 1985, SANDRO GHERARDI DANDOLO, A FORMER OFFICIAL OF THE COMMISSION, BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION' S DECISION OF 20 JULY 1984 REFUSING TO FIX THE AMOUNT OF HIS INVALIDITY PENSION ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES . THE APPLICANT ALSO ASKS THE COURT TO HOLD THAT HIS INVALIDITY IS OCCUPATIONAL IN ORIGIN AND ORDER THE COMMISSION TO PAY HIM AN INVALIDITY PENSION CALCULATED ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS, RETROACTIVELY TO 1 JULY 1982, THE DATE OF HIS RETIREMENT ON GROUNDS OF INVALIDITY .

2 THE FREQUENCY WITH WHICH THE APPLICANT TOOK SICK LEAVE LED THE COMMISSION IN 1981 TO INITIATE THE PROCEDURE FOR RETIREMENT ON GROUNDS OF INVALIDITY PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS . UNDER THAT PROCEDURE, THE INVALIDITY COMMITTEE PROVIDED FOR IN ARTICLE 13 OF ANNEX VIII TO THE STAFF REGULATIONS SUBMITTED A REPORT ON 28 MAY 1982 IN WHICH IT CONCLUDED THAT THE APPLICANT SUFFERED FROM TOTAL PERMANENT INVALIDITY RESULTING "IN PART" FROM AN ACCIDENT WHICH OCCURRED IN THE COURSE OF HIS DUTIES . ON 21 JUNE 1982, THE COMMISSION DECIDED ON THE BASIS OF THAT REPORT TO GRANT THE APPLICANT AN INVALIDITY PENSION CALCULATED IN ACCORDANCE WITH THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS, WHICH APPLIES WHERE INVALIDITY IS NOT OCCUPATIONAL IN ORIGIN . THE APPLICANT DID NOT BRING PROCEEDINGS TO CHALLENGE THAT DECISION .

3 TEN MONTHS AFTER THAT DECISION, ON 21 APRIL 1983, THE APPLICANT ASKED THE COMMISSION TO RE-EXAMINE ITS DECISION . HE ARGUED THAT IT COULD BE CONCLUDED FROM THE INVALIDITY COMMITTEE' S REPORT THAT HIS INVALIDITY WAS OCCUPATIONAL IN ORIGIN AND THAT HIS INVALIDITY PENSION SHOULD THEREFORE BE SET AT 70% OF HIS BASIC SALARY, IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS .

4 ON 20 JUNE 1983 THE COMMISSION REPLIED THAT THE REPORT OF THE INVALIDITY COMMITTEE WAS UNCLEAR AS TO THE CAUSE OF THE APPLICANT' S INVALIDITY AND THAT IT WOULD THEREFORE ASK THE COMMITTEE FOR FURTHER DETAILS . IT STATED THAT ON THE BASIS OF THE EXPLANATIONS GIVEN IT WOULD CONSIDER WHETHER OR NOT THE AMOUNT OF THE APPLICANT' S PENSION SHOULD BE ALTERED .

5 IN TWO SUPPLEMENTARY REPORTS OF 30 MARCH AND 19 JUNE 1984 THE INVALIDITY COMMITTEE STATED THAT THE ACCIDENT REFERRED TO IN ITS REPORT OF 28 MAY 1982 WAS NOT THE PRIMARY CAUSE OF THE APPLICANT' S INVALIDITY .

6 BY A LETTER OF 20 JULY 1984 THE COMMISSION INFORMED THE APPLICANT THAT IN THE CIRCUMSTANCES THERE WAS NO REASON FOR IT TO ALTER ITS DECISION . ON 22 OCTOBER 1984 THE APPLICANT SUBMITTED A COMPLAINT THROUGH OFFICIAL CHANNELS AGAINST THAT STATEMENT; ON 17 APRIL 1985 THE COMPLAINT WAS EXPRESSLY REJECTED . ON 16 JULY 1985 THE APPLICANT BROUGHT THESE PROCEEDINGS .

7 IN SUPPORT OF HIS APPLICATION THE APPLICANT SUBMITS THAT THE CONTESTED DECISION CONTAINS NO SUFFICIENT STATEMENT OF REASONS, FAILS TO OBSERVE ESSENTIAL PROCEDURAL REQUIREMENTS, WAS ADOPTED IN BREACH OF HIS RIGHT TO A HEARING AND IS BASED ON ERRONEOUS AND CONTRADICTORY REASONS .

8 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR FURTHER DETAILS OF THE FACTS OF THE CASE, THE APPLICANT' S SUBMISSIONS AND THE ARGUMENTS PUT FORWARD BY THE COMMISSION IN ITS DEFENCE .

9 AT THE HEARING, THE APPLICANT WITHDREW HIS HEADS OF CLAIM SEEKING A FINDING BY THE COURT THAT HIS INVALIDITY WAS OCCUPATIONAL IN ORIGIN AND AN ORDER THAT THE COMMISSION SHOULD PAY HIM AN INVALIDITY PENSION CALCULATED ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS .

10 WITH REGARD TO THE CLAIM FOR THE ANNULMENT OF THE DECISION OF 20 JULY 1984, THE COMMISSION SUBMITS THAT THE APPLICATION IS OUT OF TIME SINCE THE DECISION IN QUESTION SIMPLY CONFIRMED THE DECISION OF 21 JUNE 1982, WHICH WAS NOT CHALLENGED WITHIN THE PRESCRIBED PERIOD .

11 THE APPLICANT REPLIES THAT BY DECIDING IN JUNE 1983 TO RE-EXAMINE HIS CASE, THE COMMISSION IMPLICITLY WITHDREW ITS DECISION OF 21 JUNE 1982 . HE ARGUES THAT THE DECISION OF 20 JULY 1984 IS A NEW DECISION SINCE IT IS BASED ON "SUBSTANTIAL NEW ELEMENTS OF FACT", THAT IS TO SAY, THE TWO REPORTS OF THE INVALIDITY COMMITTEE SUBMITTED IN 1984, AFTER THE DECISION OF 21 JUNE 1982 . THE ACT ADVERSELY AFFECTING HIM WAS THUS THE DECISION OF 20 JULY 1984, AND HIS APPLICATION WAS NOT OUT OF TIME .

12 IN ORDER TO DETERMINE WHETHER THE APPLICATION WAS BROUGHT WITHIN THE PRESCRIBED PERIOD IT IS NECESSARY TO IDENTIFY THE ACT ADVERSELY AFFECTING THE APPLICANT .

13 IT MUST FIRST BE DETERMINED WHETHER THE DECISION OF 21 JUNE 1982 WAS WITHDRAWN, AS THE APPLICANT SUBMITS . IT SHOULD BE EMPHASIZED IN THAT REGARD THAT AN ACT OF A COMMUNITY INSTITUTION CAN BE WITHDRAWN ONLY BY AN ACT OF THE SAME INSTITUTION WHICH EITHER EXPRESSLY REPEALS THE EARLIER DECISION OR CONTAINS A NEW DECISION TAKING ITS PLACE .

14 IN ITS LETTER OF 20 JUNE 1983 REPLYING TO THE REQUEST FOR RE-EXAMINATION, THE COMMISSION EXPRESSLY STATED THAT ON THE BASIS OF THE SUPPLEMENTARY EXPLANATIONS TO BE PROVIDED BY THE INVALIDITY COMMITTEE IT WOULD CONSIDER WHETHER THE DECISION OF 21 JUNE 1982 SHOULD BE AMENDED . THAT REPLY CANNOT BE REGARDED AS A DECISION WITHDRAWING THE DECISION OF 21 JUNE 1982, BUT IS A SIMPLE PROMISE TO RECONSIDER IT SHOULD IT APPEAR TO HAVE BEEN BASED ON AN ERRONEOUS INTERPRETATION OF THE FIRST REPORT OF THE INVALIDITY COMMITTEE .

15 THE SUPPLEMENTARY REPORTS SUBMITTED BY THE INVALIDITY COMMITTEE IN 1984 CONFIRMED THE COMMISSION' S INTERPRETATION OF THE COMMITTEE' S FIRST REPORT . IN ITS LETTER OF 20 JULY 1984 IT INFORMED THE APPLICANT THAT IN THE CIRCUMSTANCES THERE WAS NO REASON FOR IT TO AMEND ITS DECISION OF 21 JUNE 1982 . IT FOLLOWS THAT THAT DECISION WAS NOT WITHDRAWN .

16 IT MUST NOW BE DETERMINED WHETHER THE CONTESTED DECISION IS PURELY CONFIRMATORY OF THE DECISION OF 21 JUNE 1982 OR WHETHER IT IS A NEW DECISION WHOSE EFFECT IS TO REOPEN THE PERIOD FOR BRINGING PROCEEDINGS .

17 IT MUST BE POINTED OUT IN THAT REGARD THAT THE TWO SUPPLEMENTARY REPORTS SUBMITTED BY THE INVALIDITY COMMITTEE IN 1984 DID NO MORE THAN DEFINE THE INTERPRETATION TO BE GIVEN TO THE FIRST REPORT SUBMITTED IN 1982, AND DID SO IN THE MANNER UNDERSTOOD BY THE COMMISSION IN ITS DECISION OF 21 JUNE 1982 . SINCE THE COMMISSION BASED ITSELF ON THOSE TWO SUPPLEMENTARY REPORTS IN ADOPTING THE CONTESTED DECISION, THAT DECISION IS PURELY CONFIRMATORY OF THE DECISION OF 21 JUNE 1982 .

18 IT FOLLOWS FROM THE FOREGOING THAT THE ACT ADVERSELY AFFECTING THE APPLICANT WAS THE DECISION OF 21 JUNE 1982 .

19 THIS APPLICATION, WHICH WAS BROUGHT ON 16 JULY 1985, IS THEREFORE OUT OF TIME AND MUST BE DISMISSED .

COSTS

20 UNDER ARTICLE 69*(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS,

THE COURT ( FIRST CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION AS INADMISSIBLE;

( 2 ) ORDERS THE PARTIES TO PAY THEIR OWN COSTS .