61985J0276

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1 . OFFICIALS - ACTIONS - PERIODS ALLOWED - TIME FROM WHICH PERIOD STARTS TO RUN - DATE OF NOTIFICATION OF THE DECISION ON A COMPLAINT MADE THROUGH OFFICIAL CHANNELS - COMPUTATION

( STAFF REGULATIONS, ART . 91 ( 3 ); RULES OF PROCEDURE, ARTS 80 ( 1 ) AND 81*(1 ) )

2 . PROCEDURE - TIME ALLOWED FOR COMMENCING PROCEEDINGS - BARRING OF PROCEEDINGS - UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE - LIMITS

( STATUTE OF THE COURT OF JUSTICE OF THE EEC, SECOND PARAGRAPH OF ARTICLE 42 )

1 . BY VIRTUE OF ARTICLES 89 ( 1 ) AND 81 ( 1 ) OF THE RULES OF PROCEDURE, THE THREE-MONTH PERIOD ALLOWED BY ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS FOR BRINGING AN ACTION AGAINST THE DECISION ADOPTED ON A COMPLAINT MADE THROUGH OFFICIAL CHANNELS DOES NOT BEGIN TO RUN, WHERE THAT DECISION IS NOTIFIED, UNTIL THE DAY FOLLOWING THE RECEIPT BY THE PERSON CONCERNED OF NOTIFICATION OF THE MEASURE IN QUESTION, REGARDLESS OF THE HOUR OF DAY WHEN THIS OCCURS; BEING EXPRESSED IN CALENDAR MONTHS, THE PERIOD EXPIRES AT THE END OF THE DAY WHICH, IN THE THIRD MONTH, BEARS THE SAME NUMBER AS THE DAY FROM WHICH TIME WAS SET RUNNING, THAT IS TO SAY THE DAY OF NOTIFICATION .

2 . THE STRICT APPLICATION OF COMMUNITY RULES ON PROCEDURAL TIME-LIMITS SERVES THE REQUIREMENT OF LEGAL CERTAINTY AND THE NEED TO AVOID ANY DISCRIMINATION OR ARBITRARY TREATMENT IN THE ADMINISTRATION OF JUSTICE . ACCORDINGLY, THERE CAN BE NO DEROGATION FROM THOSE RULES UNLESS THERE IS A QUITE EXCEPTIONAL CASE OF UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE, AS REQUIRED BY THE SECOND PARAGRAPH OF ARTICLE 42 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC .

THE FACT THAT AN OFFICIAL DID NOT HAVE AN OFFICIAL TEXT OF THE STAFF REGULATIONS AVAILABLE TO HIM IN HIS OWN LANGUAGE CANNOT CONSTITUTE A CASE OF UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE WHEN IT WAS AVAILABLE IN ALL THE OTHER OFFICIAL LANGUAGES OF THE COMMUNITY, AND THE OFFICIAL MUST HAVE HAD A SATISFACTORY KNOWLEDGE OF AT LEAST ONE OF THEM .

IN CASE 276/85

GEORGES CLADAKIS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 42 AVENUE DES ROUSSEROLLES, RHODE-SAINT-GENESE ( BELGIUM ), REPRESENTED BY JEAN-NOEL LOUIS, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER, 16*AVENUE MARIE-THERESE,

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,

APPLICATION FOR THE ANNULMENT OF A DECISION CLASSIFYING THE APPLICANT IN GRADE B 3, STEP 3,

THE COURT ( THIRD CHAMBER )

COMPOSED OF : Y . GALMOT, PRESIDENT OF THE CHAMBER, U . EVERLING AND J.C.*MOITINHO DE ALMEIDA, JUDGES,

ADVOCATE GENERAL : J.L . DA CRUZ VILACA

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 23 OCTOBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 10 DECEMBER 1986,

GIVES THE FOLLOWING

JUDGMENT

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 9 SEPTEMBER 1985, GEORGES CLADAKIS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION' S DECISION OF 9 MARCH 1983 APPOINTING HIM A PROBATIONARY OFFICIAL IN THE POST OF ASSISTANT AND CLASSIFYING HIM IN GRADE B 3, STEP 3, AND ALSO FOR THE ANNULMENT OF THE COMMISSION' S DECISIONS OF 30 OCTOBER AND 29 NOVEMBER 1984 REJECTING HIS REQUEST FOR REGRADING, AND OF THE COMMISSION' S DECISION OF 4 JUNE 1985 REJECTING HIS COMPLAINT THROUGH OFFICIAL CHANNELS .

2 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT, BY LETTER OF 12 JULY 1984 ADDRESSED TO THE CHAIRMAN OF THE JOINT GRADING COMMITTEE, MR CLADAKIS REQUESTED A REVIEW OF THE GRADE ASSIGNED TO HIM BY THE COMMISSION' S DECISION OF 9 MARCH 1983, MENTIONED ABOVE, AND CLAIMED THAT HE SHOULD HAVE BEEN CLASSSIFIED IN GRADE B 2 .

3 THAT REQUEST WAS REJECTED BY A DECISION OF THE COMMISSION OF 30*OCTOBER 1984, SUBSEQUENTLY CONFIRMED BY A MEMORANDUM DATED 29 NOVEMBER 1984 . ON 15 JANUARY 1985 MR CLADAKIS SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, WHICH WAS REJECTED BY A DECISION OF THE COMMISSION OF 4 JUNE 1985 WHICH WAS NOTIFIED TO HIM THE FOLLOWING DAY . MR CLADAKIS THEN BROUGHT THE PRESENT ACTION BY AN APPLICATION RECEIVED AT THE COURT REGISTRY ON 9 SEPTEMBER 1985 .

4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

ADMISSIBILITY OF THE APPLICATION

5 THE COMMISSION CONTESTS THE ADMISSIBILITY OF THE APPLICATION ON THE GROUND THAT THE APPLICANT FAILED TO LODGED IN DUE TIME A COMPLAINT THROUGH OFFICIAL CHANNELS AGAINST THE DECISION OF 9 MARCH 1983 WHICH CONSTITUTED THE ACT ADVERSELY AFFECTING HIM FOR THE PURPOSES OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . ON THE OTHER HAND, IT CONSIDERS THAT THE TIME-LIMIT FOR SUBMITTING THE APPLICATION TO THE COURT, LAID DOWN BY ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS, WAS COMPLIED WITH IN THIS INSTANCE .

6 IN SPITE OF THE LIMITED SCOPE OF THE OBJECTIONS RAISED BY THE COMMISSION TO THE ADMISSIBILITY OF THE APPLICATION, THE COURT WILL FIRST EXAMINE OF ITS OWN MOTION PURSUANT TO ARTICLE 92 OF THE RULES OF PROCEDURE, WHETHER THE REQUIREMENTS OF ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS HAVE BEEN SATISFIED .

7 ACCORDING TO THE FIRST INDENT OF ARTICLE 91 ( 3 ) THE APPLICATION MUST BE LODGED WITHIN A PERIOD OF THREE MONTHS, COMMENCING ON THE DATE OF NOTIFICATION OF THE DECISION ON THE COMPLAINT . IN THIS CASE THAT DATE IS 5 JUNE 1985 .

8 THE ABOVE PROVISION IS SUPPLEMENTED BY ARTICLE 81 ( 1 ) OF THE RULES OF PROCEDURE, WHICH PROVIDES THAT THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS AGAINST A MEASURE ADOPTED BY AN INSTITUTION RUNS FROM THE DAY FOLLOWING THE RECEIPT BY THE PERSON CONCERNED OF NOTIFICATION OF THE MEASURE . THE LATTER PROVISION, AND ALSO THE GENERAL RULE LAID DOWN IN ARTICLE 80 ( 1 ), ACCORDING TO WHICH, IN THE RECKONING OF ANY PERIOD, THE DAY OF THE EVENT FROM WHICH THE PERIOD IS TO RUN IS EXCLUDED, ARE DESIGNED TO ENSURE THAT PARTIES ARE ABLE TO MAKE FULL USE OF THE PERIODS ALLOWED . REGARDLESS OF THE HOUR OF DAY WHEN THE MEASURE IN QUESTION IS NOTIFIED, TIME DOES NOT BEGIN TO RUN UNTIL THE END OF THE DAY OF NOTIFICATION .

9 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 15 JANUARY 1987 ( CASE 152/85 MISSET V COUNCIL (( 1987 )) ECR 0000 ), WHENEVER - AS IN THIS CASE - THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS IS EXPRESSED IN CALENDAR MONTHS, THAT PERIOD EXPIRES AT THE END OF THE DAY WHICH, IN THE MONTH INDICATED BY THE TIME-LIMIT, BEARS THE SAME NUMBER AS THE DAY FROM WHICH TIME WAS SET RUNNING, THAT IS TO SAY THE DAY OF NOTIFICATION; THAT METHOD OF COMPUTATION IS, MOREOVER, IN CONFORMITY WITH THE METHOD APPLIED UNDER THE NATIONAL LAW OF THE MEMBER STATES . IN VIEW OF THE EXTENSION OF TWO DAYS ON ACCOUNT OF DISTANCE TO WHICH THE APPLICANT WAS ENTITLED, THE PRESCRIBED PERIOD THUS EXPIRED ON 7 SEPTEMBER 1985 . THUS THE APPLICATION, WHICH WAS LODGED ON 9 SEPTEMBER 1985, IS OUT OF TIME .

10 HOWEVER, THE APPLICANT FURTHER ARGUES THAT EVEN IF THE APPLICATION SHOULD BE FOUND TO HAVE BEEN LODGED OUT OF TIME, THIS CANNOT IN THE PRESENT CASE HAVE THE EFFECT OF RENDERING IT INADMISSIBLE . THE RULES OF THE STAFF REGULATIONS REGARDING PROCEDURAL TIME-LIMITS MAY NOT, ACCORDING TO THE APPLICANT, BE PLEADED AS A DEFENCE AGAINST HIM SINCE HE IS A GREEK NATIONAL AND NO AUTHENTIC GREEK-LANGUAGE VERSION OF THE STAFF REGULATIONS HAD BEEN PREPARED AT THE TIME .

11 IN THAT CONNECTION IT IS APPROPRIATE TO REFER TO THE ESTABLISHED CASE-LAW OF THE COURT, MOST RECENTLY CONFIRMED BY THE JUDGMENT OF 15*JANUARY 1987 ( MISSET V COUNCIL, CITED ABOVE ), ACCORDING TO WHICH THE STRICT APPLICATION OF COMMUNITY RULES ON PROCEDURAL TIME-LIMITS SERVES THE REQUIREMENT OF LEGAL CERTAINTY AND THE NEED TO AVOID ANY DISCRIMINATION OR ARBITRARY TREATMENT IN THE ADMINISTRATION OF JUSTICE . ACCORDINGLY, THERE CAN BE NO DEROGATION FROM THOSE RULES UNLESS THERE IS A QUITE EXCEPTIONAL CASE OF UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE, AS REQUIRED BY THE SECOND PARAGRAPH OF ARTICLE 42 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC .

12 THE FACT RELIED ON BY THE APPLICANT CANNOT BE CONSIDERED SO EXCEPTIONAL AS TO AMOUNT TO AN UNFORESEEABLE CIRCUMSTANCE OR FORCE MAJEURE FOR THE PURPOSES OF THE ABOVEMENTIONED PROVISION . IT IS NOT IN DISPUTE THAT THE TEXTS OF THAT PROVISION WERE AVAILABLE IN ALL THE OTHER OFFICIAL LANGUAGES OF THE COMMUNITY . THE APPLICANT MUST HAVE HAD A SATISFACTORY KNOWLEDGE OF AT LEAST ONE OF THOSE LANGUAGES; THIS WAS INDEED A CONDITION FOR ADMISSION TO THE COMPETITION ON THE BASIS OF WHICH HE WAS RECRUITED . FURTHERMORE, FOR THE PURPOSES OF THESE PROCEEDINGS HE CHOSE AS THE LANGUAGE OF THE CASE A LANGUAGE OTHER THAN GREEK - NAMELY FRENCH - AND APPOINTED A LAWYER ESTABLISHED IN BELGIUM TO REPRESENT HIM . IN THOSE CIRCUMSTANCES, THE APPLICANT IS NOT ENTITLED TO PLEAD THE ABSENCE OF AN AUTHENTIC GREEK-LANGUAGE VERSION OF THE STAFF REGULATIONS IN ORDER TO SAVE HIS APPLICATION FROM FAILURE ON ACCOUNT OF THE EXPIRY OF THE PROCEDURAL TIME-LIMITS .

13 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION MUST BE DISMISSED ON THE GROUND THAT IT IS OUT OF TIME, SO THAT THERE IS NO NEED TO CONSIDER THE ARGUMENTS AGAINST ITS ADMISSIBILITY PUT FORWARD BY THE COMMISSION .

COSTS

14 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 THOSE RULES COMMUNITY INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

On those grounds,

THE COURT ( Third Chamber )

hereby :

( 1 ) Dismisses the application as inadmissible;

( 2 ) Orders the parties to bear their own costs .