61965J0020

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OFFICIALS - APPEAL AGAINST A MEASURE CONFIRMING AN EARLIER DECISION - EXPIRY OF PERIOD FOR LODGING AN APPEAL AGAINST THAT DECISION - LOSS OF RIGHT TO APPEAL

CF . PARAGRAPH 2 OF SUMMARY IN CASE 55/64 ( 1965 ) ECR 837 .

A MEASURE WHICH MERELY CONFIRMS A PREVIOUS DECISION CANNOT REVIVE AN ALREADY TIME-BARRED RIGHT OF APPEAL AGAINST THAT DECISION .

*/ 664J0055 /*.

IN CASE 20/65

UMBERTO COLLOTTI, ADVOCATE OF THE TURIN BAR, RESIDING IN TURIN, ASSISTED BY FERNAND PROBST, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS COUNSEL, 26 AVENUE DE LA LIBERTE,

APPLICANT,

V

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS REGISTRAR, ALBERT VAN HOUTTE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE COURT, 12 RUE DE LA COTE - D' EICH,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE MEASURE NOTIFIED TO THE APPLICANT BY LETTER FROM THE REGISTRAR OF THE COURT OF JUSTICE DATED 18 FEBRUARY 1965 AND FOR THE REVISION OF THE APPLICANT'S RETIREMENT PENSION, ON THE BASIS OF HIS CLASSIFICATION IN GRADE L/A 3, STEP 8, AS FROM 1 JANUARY 1962;

P.850

I - ADMISSIBILITY

IN ITS OBJECTION BASED ON ARTICLE 91 OF THE RULES OF PROCEDURE, THE DEFENDANT CONTENDS THAT THE MAIN APPLICATION IS INADMISSIBLE BECAUSE IT IS OUT OF TIME .

THE SOLE CONDITION REQUIRED BY ARTICLE 91 OF THE RULES OF PROCEDURE FOR MAKING AN APPLICATION UNDER THAT ARTICLE IS THAT THE DECISION REQUESTED SHALL BE ON A ' PRELIMINARY OBJECTION OR...PROCEDURAL ISSUE ' (' QUE LA COUR STATUE SUR UNE EXCEPTION OU UN INCIDENT SANS ENGAGER LE DEBAT AU FOND ').

FAILURE TO OBSERVE A TIME-LIMIT ENTAILS THE LOSS OF THE ACTUAL RIGHT TO BRING AN ACTION, THAT IS TO SAY, OF THE OPPORTUNITY TO BRING THE FACTS FORMING THE SUBJECT OF THE ACTION BEFORE THE COURT FOR EXAMINATION OF THE SUBSTANCE OF THE CASE .

IT APPEARS THAT THE APPLICATION, APPARENTLY MADE AGAINST THE NOTE OF 18 FEBRUARY 1965 CONTAINING THE STATEMENT OF THE RETIREMENT PENSION, IN FACT AIMS AT THE REVISION OF THE APPLICANT'S CLASSIFICATION AS AT 1 JANUARY 1962, AS IT ARISES FROM THE OPERATIVE PART OF THE JUDGMENT OF 7 JULY 1964 IN CASE 70/63 . IN THIS CONNEXION THE APPLICANT INVOKES CERTAIN OF THE GROUNDS OF THE SAID JUDGMENT .

UNDER ARTICLE 91(2 ) OF THE STAFF REGULATIONS OF OFFICIALS, APPEALS SHALL BE FILED WITHIN THREE MONTHS OF NOTIFICATION OF THE ACT ADVERSELY AFFECTING THE OFFICIAL IN QUESTION . IN THIS INSTANCE THE APPLICANT RECEIVED ON 21 JULY 1964 FROM THE ADMINISTRATION OF THE COURT A DETAILED STATEMENT OF THE SUMS TO WHICH HE WAS ENTITLED BOTH AS REGARDS THE PAST AND THE FUTURE, ON THE BASIS OF THE JUDGMENT IN CASE 70/63 . THIS STATEMENT SHOWED CLEARLY THE CONSEQUENCES WHICH THE ADMINISTRATION DRAW FROM THE SAID JUDGMENT .

IF THE APPLICANT DISAGREED WITH THESE CONSEQUENCES, TO SAFEGUARD HIS RIGHTS HE HAD A PERIOD OF THREE MONTHS IN WHICH TO MAKE EITHER AN ADMINISTRATIVE COMPLAINT OR TO BRING AN APPEAL BEFORE THE COURT . THE APPLICANT ONLY REACTED ON 9 DECEMBER 1964, WHEN HE ADDRESSED A LETTER TO THE PRESIDENT OF THE COURT WHEREIN MOREOVER HE STATED CLEARLY THAT IT DID NOT CONSTITUTE AN ADMINISTRATIVE COMPLAINT . THUS THE APPLICANT HAS LOST THE RIGHT TO BRING AN APPEAL BEFORE THE COURT ON THE IMPLEMENTATION OF THE JUDGMENT IN CASE 70/63 AND ITS CONSEQUENCES .

FURTHERMORE, THE NOTE OF 18 FEBRUARY 1965 CONTAINING THE STATEMENT OF THE APPLICANT'S RETIREMENT PENSION MERELY CONFIRMS THE STATEMENT OF 21 JULY 1964 AND CANNOT REVIVE A CAUSE OF ACTION ALREADY EXTINGUISHED . IN FACT, THE NOTE OF 18 FEBRUARY 1965 AIMS SOLELY AT CLARIFYING THE PENSION RIGHTS, AS A MATTER OF ACCOUNTANCY, ON THE BASIS OF THE JUDGMENT DELIVERED IN CASE 70/63 AND THE IMPLEMENTATION OF THAT JUDGMENT AS IT EMERGED FROM THE STATEMENT OF 21 JULY 1964 .

IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION IN CASE 20/65 IS INADMISSIBLE BECAUSE IT WAS MADE AFTER THE EXPIRY OF THE PERIOD OF TIME FIXED BY ARTICLE 91(2 ) OF THE STAFF REGULATIONS OF OFFICIALS .

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 COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 20/65 AS INADMISSIBLE;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .