61986J0054

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OFFICIALS - APPLICATIONS TO THE COURT - PRELIMINARY ADMINISTRATIVE COMPLAINT - IMPLIED DECISION REJECTING A REQUEST NOT CHALLENGED WITHIN THE PRESCRIBED PERIOD - SUBSEQUENT EXPRESS DECISION - IDENTICAL REASONS - LIMITATION OF ACTIONS

( STAFF REGULATIONS OF OFFICIALS, ARTS 90 AND 91 )

IN CASE 54/86

MARCEL GRUMBACH, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 41 RUE DUCALE, BRUSSELS, REPRESENTED BY EDMOND LEBRUN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE,

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 GEORGES KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

CONCERNING, AT THE PRESENT STAGE OF THE PROCEDURE, THE ADMISSIBILITY OF THE ACTION BROUGHT BY MR GRUMBACH AGAINST THE COMMISSION ON 25 FEBRUARY 1986 FOR THE ANNULMENT OF THE DECISION REJECTING HIS REQUEST SUBMITTED ON 28 FEBRUARY 1985 FOR A DIFFERENTIAL ALLOWANCE ON THE GROUND THAT FROM 2 FEBRUARY 1981 TO 31 MAY 1983 IN GENEVA HE HAD TEMPORARILY PERFORMED THE DUTIES OF A HEAD OF DIVISION OR AN ADVISER IN GRADE A*3,

THE COURT ( FIRST CHAMBER )

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

ADVOCATE GENERAL : C . O . LENZ

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 19 MARCH 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 13 MAY 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 25 FEBRUARY 1986 MARCEL GRUMBACH, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF 29 MARCH 1985 BY WHICH THE COMMISSION REJECTED HIS REQUEST FOR A DIFFERENTIAL ALLOWANCE SUBMITTED ON 28 FEBRUARY 1985 ON THE GROUND THAT FROM 2 FEBRUARY 1981 TO 31 MAY 1983, AS A MEMBER OF THE COMMISSION' S DELEGATION IN GENEVA, HE HAD TEMPORARILY PERFORMED THE DUTIES OF A HEAD OF DIVISION OR AN ADVISER IN GRADE A*3 .

2 FOR THE SAKE OF A BETTER UNDERSTANDING OF THE FACTS OF THE CASE, IT SHOULD BE NOTED THAT ON 12 SEPTEMBER 1983 MR GRUMBACH SUBMITTED A COMPLAINT AGAINST THE DECISION OF 14 JUNE 1983 BY WHICH THE COMMISSION HAD REJECTED HIS REQUEST FOR CLASSIFICATION IN GRADE A*3 BY REASON OF THE DUTIES WHICH HE HAD PERFORMED IN GENEVA . THAT

COMPLAINT WAS REJECTED BY DECISION OF 16 JANUARY 1984, AGAINST WHICH MR GRUMBACH DID NOT APPEAL .

3 IT WAS EXPRESSLY STATED IN THAT DECISION THAT THE COMMISSION DID NOT SHARE THE APPLICANT' S OPINION THAT THE DUTIES WHICH HE HAD PERFORMED IN GENEVA CORRESPONDED TO THE DUTIES OF AN OFFICIAL IN GRADE A*3 . THE DECISION ALSO POINTED OUT THAT EVEN IF AN OFFICIAL PERFORMS DUTIES ATTACHING TO A GRADE ABOVE HIS OWN, WHICH MR GRUMBACH HAD NOT, HE DOES NOT THEREBY ACQUIRE A RIGHT TO BE RECLASSIFIED .

4 ALTHOUGH THE COMMISSION HAS NOT FORMALLY OBJECTED TO THE ADMISSIBILITY OF THE APPLICATION, IT HAS STRESSED THAT IN HIS REQUEST OF 28 FEBRUARY 1985 MR GRUMBACH MERELY REPRODUCED THE ARGUMENTS ALREADY PUT FORWARD IN HIS COMPLAINT OF 12 SEPTEMBER 1983 CONCERNING THE NATURE OF THE DUTIES PERFORMED AND THAT THE DECISION REJECTING THAT REQUEST REFERRED TO THE COMMISSION' S DECISION OF 16 JANUARY 1984 ON THAT COMPLAINT . IT HAS ALSO POINTED OUT THAT THE COMPLAINT SUBMITTED BY MR GRUMBACH ON 14 JUNE 1985 WAS REJECTED BY DECISION OF 4 DECEMBER 1985 WHICH WAS EXPRESSLY STATED BY THE COMMISSION TO BE "MERELY CONFIRMATION OF THE DECISION OF 16 JANUARY 1984 ". IT CONCLUDES THAT THE ISSUE IS THE SAME IN THE TWO PROCEDURES, WHICH IS A DECISIVE FACTOR IN ASSESSING THE ADMISSIBILITY OF THE APPLICATION .

5 MR GRUMBACH CLAIMS IN THIS REGARD THAT THE ONLY RELEVANT FACTOR FOR PURPOSES OF THE ADMISSIBILITY OF AN ACTION IS ITS OBJECT, AND THE FACTS ON WHICH THE PROCEEDINGS ARE BASED ARE IRRELEVANT . AS REGARDS THE TIME-LIMITS WHICH MUST BE COMPLIED WITH, HE CONSIDERS THAT NO LIMIT IS FIXED BY THE STAFF REGULATIONS OF OFFICIALS FOR SUBMITTING A REQUEST UNDER ARTICLE 90*(1 ).

6 BY DECISION OF 4 FEBRUARY 1987, THE COURT ( FIRST CHAMBER ) DECIDED THAT THE HEARING WOULD BE CONFINED TO CONSIDERATION OF THE ADMISSIBILITY OF THE ACTION .

7 AS REGARDS THE ADMISSIBILITY OF THE ACTION, IT SHOULD BE STATED THAT IN SO FAR AS THE DECISION OF 16 JANUARY 1984 EXPRESSLY REFUSES TO RECOGNIZE THAT THE APPLICANT HAD PERFORMED DUTIES ATTACHING TO A POST HIGHER THAN HIS GRADE, IT ALSO CONSTITUTES AN IMPLIED DECISION NOT TO APPLY TO HIM THE PROVISIONS OF ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS ON THE GRANTING OF A DIFFERENTIAL ALLOWANCE FOR A TEMPORARY POSTING .

8 CONSEQUENTLY, THE APPLICANT OUGHT TO HAVE COMMENCED PROCEEDINGS CHALLENGING THE DECISION OF 16 JANUARY 1984 WITHIN THE THREE-MONTH PERIOD PRESCRIBED IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . THE ACTION BROUGHT ON 25 FEBRUARY 1986 IS THEREFORE MANIFESTLY OUT OF TIME .

9 THE DECISION OF 29 MARCH 1985 CONTAINS NO NEW FACTORS UPON WHICH MR GRUMBACH COULD RELY IN ORDER TO ESTABLISH THAT HIS APPLICATION IS ADMISSIBLE . THAT DECISION IS BASED EXCLUSIVELY ON "ALL THE REASONS" SET OUT IN THE COMMISSION' S REPLY TO HIM OF 16 JANUARY 1984 .

10 IN VIEW OF THE FOREGOING CONSIDERATIONS, THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .

COSTS

11 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 INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS INSTITUTED 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 .