61971J0040

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1 . OFFICIALS - APPEALS - TIME-LIMITS - AIM - STRICT NATURE

( STAFF REGULATIONS, ARTICLE 91 )

2 . OFFICIALS - APPEALS - FAILURE BY THE ADMINISTRATION TO ACT - CONCEPT - TEMPORIZING REPLY - NO LEGAL EFFECTS

( STAFF REGULATIONS, ARTICLE 91 )

1 . THE TWO PERIODS SET OUT IN ARTICLE 91 OF THE STAFF REGULATIONS ARE TOGETHER INTENDED TO ENSURE WITHIN THE COMMUNITY INSTITUTIONS THE LEGAL CERTAINTY WHICH IS INDISPENSABLE TO THEIR PROPER FUNCTIONING . THE PARTIES CONCERNED MAY NOT, THEREFORE, EXTEND THEM AT WILL .

2 . THE REPLY WHEREBY THE ADMINISTRATION INFORMS THE PARTY CONCERNED THAT THE REQUEST IS UNDER CONSIDERATION DOES NOT CONSTITUTE A DECISION .

SUCH A REPLY CAN HAVE NO OTHER LEGAL EFFECT, IN PARTICULAR THAT OF EXTENDING THE PERIOD PRESCRIBED BY ARTICLE 91 OF THE STAFF REGULATIONS .

IN CASE 40/71

DENISE RICHEZ-PARISE, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 12 VILLA WAGRAM SAINT-HONORE, PARIS, REPRESENTED BY JACQUES MERCIER, ADVOCATE AT THE COUR DE PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 20 RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION :

FOR THE AWARD TO THE APPLICANT OF COMPENSATION EQUIVALENT TO THAT AWARDED BY THE COURT TO MRS FIEHN BY THE JUDGMENT DELIVERED ON 9 JULY 1970, OR FOR THE REINSTATEMENT OF THE APPLICANT IN THE POST WHICH SHE HELD IN THE COMMISSION BEFORE 1 OCTOBER 1968,

ALTERNATIVELY, FOR THE REVISION OF THE JUDGMENT GIVEN ON 28 MAY 1970,

1 BY AN APPLICATION LODGED AT THE REGISTRY ON 8 JULY 1971, THE APPLICANT HAS BROUGHT AN ACTION SEEKING, IN THE FIRST PLACE, THE ANNULMENT OF THE IMPLIED REFUSAL OF THE PRESIDENT OF THE COMMISSION TO AWARD HER COMPENSATION EQUIVALENT TO THAT AWARDED BY THE COURT OF JUSTICE TO MRS FIEHN BY ITS JUDGMENT GIVEN ON 9 JULY 1970 IN CASE 23/69 ( FIEHN V COMMISSION, ( 1970 ) ECR 547 ) OR TO REINSTATE HER IN THE POST WHICH SHE OCCUPIED IN THE SERVICE OF THE COMMISSION UNTIL 1 OCTOBER 1968 AND, IN THE SECOND PLACE, FOR THE REVISION OF THE JUDGMENT DELIVERED ON 28 MAY 1970 IN JOINED CASES 19, 20, 25 AND 30/69 ( RICHEZ-PARISE AND OTHERS V COMMISSION, ( 1970 ) ECR 325 ).

2 THE APPLICATION THEREFORE COMPRISES TWO DISTINCT ACTIONS GOVERNED BY DIFFERENT RULES AS REGARDS BOTH PROCEDURE AND JUDGMENT .

3 NEVERTHELESS, SINCE THE CLAIM FOR REVISION WAS ONLY MADE IN THE ALTERNATIVE AND SEEKS IN SUBSTANCE THE SAME RESULT AS THE PRINCIPAL CLAIM, IT IS PROPER THAT, FOR REASONS WHICH WILL APPEAR SUBSEQUENTLY, BOTH CLAIMS SHOULD BE ADJUDICATED UPON IN THE SAME JUDGMENT .

4 WITH REGARD TO THE PRINCIPAL CLAIM THE DEFENDANT COMMISSION HAS RAISED VARIOUS OBJECTIONS AS TO ADMISSIBILITY, AND IN PARTICULAR THAT THE CLAIM WAS MADE OUT OF TIME .

5 UNDER ARTICLE 91 OF THE STAFF REGULATIONS, WHERE THE COMPETENT AUTHORITY TAKES NO DECISION IN RESPECT OF A REQUEST OR A COMPLAINT WITHIN TWO MONTHS FROM THE DATE ON WHICH IT WAS LODGED, THIS SHALL BE DEEMED TO CONSTITUTE AN IMPLIED DECISION REJECTING IT AGAINST WHICH AN APPEAL MAY BE LODGED WITHIN TWO MONTHS .

6 THE TWO PERIODS SET OUT IN ARTICLE 91 ARE TOGETHER INTENDED TO ENSURE, WITHIN THE COMMUNITY INSTITUTIONS, THE LEGAL CERTAINTY WHICH IS INDISPENSABLE TO THEIR PROPER FUNCTIONING .

7 THE PARTIES CONCERNED MAY NOT, THEREFORE, EXTEND THEM AT WILL .

8 THE LETTER OF 15 DECEMBER 1970 WHEREBY THE DIRECTOR OF PERSONNEL INFORMED THE APPLICANT THAT THE QUESTION RAISED BY HER WAS UNDER CONSIDERATION BY THE DEPARTMENTS OF THE COMMISSION BUT THAT THEY HAD NOT YET REACHED A FINAL CONCLUSION DID NOT CONSTITUTE A DECISION IN RESPONSE TO THE REQUEST .

9 IT COULD NOT, ON THE OTHER HAND, BY ITSELF HAVE ANY OTHER LEGAL EFFECT, IN PARTICULAR THAT OF EXTENDING THE PERIODS PRESCRIBED BY ARTICLE 91 OF THE STAFF REGULATIONS .

10 SINCE THE DEPARTMENTS OF THE COMMISSION HAD NOT TAKEN ANY DECISION WITHIN TWO MONTHS IN REPLY TO THE REQUEST OF 10 SEPTEMBER 1970, THE LETTER OF 15 DECEMBER COULD NOT HAVE INTERRUPTED THE PERIOD OF TWO MONTHS AVAILABLE TO THE APPLICANT FOR BRINGING BEFORE THE COURT THE IMPLIED REJECTION RESULTING FROM THIS SILENCE .

11 IN SO FAR AS IT IS DIRECTED AGAINST THE IMPLIED REJECTION OF THE REQUEST OF 10 SEPTEMBER 1970, THE ACTION MUST BE REGARDED AS OUT OF TIME AND THEREFORE INADMISSIBLE .

12 IN THE ALTERNATIVE, IN ORDER TO OBTAIN THE AWARD WHICH SHE SEEKS IN HER PRINCIPAL CLAIM, THE APPLICANT SEEKS THE REVISION OF THE JUDGMENT OF 28 MAY 1970 .

13 SHE STATES THAT THE REPLY IN JOINED CASES 19, 20, 25 AND 30/69 CONTAINED AN AMENDMENT OF THE INITIAL REQUEST OF THE APPLICANT IN THAT IT STATED THAT SHE NO LONGER SOUGHT HER REINSTATEMENT AND SOUGHT AS COMPENSATION FOR THE DAMAGE SUFFERED BY HER AN AMOUNT EQUIVALENT TO THREE YEARS' SALARY .

14 THIS AMENDMENT IS SAID TO HAVE BEEN SUBMITTED TO THE COURT WITHOUT HER CONSENT AND TO HAVE MISLED THE COURT .

15 SHE FURTHER STATES THAT THIS MISTAKE HAD AN INFLUENCE ON THE DECISION GIVEN IN THE JUDGMENT OF 28 MAY 1970 SINCE IT IS EXPRESSLY CONTAINED IN THE GROUNDS OF THIS JUDGMENT .

16 ARTICLE 41 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC PROVIDES THAT THE APPLICATION FOR REVISION OF A JUDGMENT MAY BE MADE ONLY ON DISCOVERY OF A FACT WHICH IS OF SUCH A NATURE AS TO BE A DECISIVE FACTOR, AND WHICH, WHEN THE JUDGMENT WAS GIVEN, WAS UNKNOWN TO THE COURT AND TO THE PARTY CLAIMING THE REVISION .

17 ARTICLE 98 OF THE RULES OF PROCEDURE PROVIDES THAT AN APPLICATION FOR REVISION OF A JUDGMENT MUST BE MADE WITHIN THREE MONTHS OF THE DATE ON WHICH THE APPLICANT RECEIVES KNOWLEDGE OF THE FACTS ON WHICH THE APPLICATION IS BASED .

18 IT APPEARS FROM A LETTER SENT BY THE APPLICANT TO THE PRESIDENT OF THE COMMISSION ON 10 DECEMBER 1970 THAT SHE RECEIVED KNOWLEDGE OF THE FACTS UPON WHICH SHE RELIES ON 18 JUNE 1970 .

19 THEREFORE HER APPLICATION FOR REVISION ENTERED IN THE COURT REGISTRY ON 8 JULY 1971 MUST BE DISMISSED AS BEING OUT OF TIME, WITHOUT THERE BEING ANY NECESSITY TO EXAMINE WHETHER IT FURTHER SATISFIES THE REQUIREMENTS OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE .

20 NEVERTHELESS THE COURT DEEMS IT RELEVANT TO POINT OUT THAT THE GROUND OF THE JUDGMENT OF 28 MAY 1970 RELIED ON IN SUPPORT OF THE APPLICATION FOR REVISION STARTS WITH THE WORD " MOREOVER ".

21 THIS WORD SERVES TO SHOW THAT THE FACT REFERRED TO ONLY CONSTITUTED AN ADDITIONAL GROUND TO THE DECISIVE GROUND PRECEDING IT .

22 IT FOLLOWS FROM THIS THAT THE APPLICATION FOR REVISION MUST BE DISMISSED AS INADMISSIBLE .

23 THE APPLICANT HAS FAILED IN HER APPLICATION .

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

25 THE DEFENDANT HAS SUGGESTED THAT IN THE PRESENT CASE, IN DEROGATION FROM THE PROVISIONS OF ARTICLE 70 OF THE RULES OF PROCEDURE, THE APPLICANT SHOULD BE ORDERED TO PAY ITS COSTS IN THE CASE AS BEING VEXATIOUSLY AND UNREASONABLY CAUSED .

26 NEVERTHELESS THE DEFENDANT FOR ITS PART MISLED THE APPLICANT, IN PARTICULAR BY THE LETTER FROM ITS DIRECTOR OF PERSONNEL OF 15 DECEMBER 1970 WHICH WAS OF SUCH A NATURE AS TO SUGGEST THAT THE REQUEST OF 10 SEPTEMBER 1970 WAS NOT WITHOUT SUBSTANCE .

27 WHEN DRAFTED IN SUCH A WAY AS TO CREATE THE FALSE IMPRESSION THAT THE REQUEST MAY GIVE RISE TO A FRESH EXAMINATION AND THAT THE PARTY CONCERNED MAY CALMLY AWAIT THE RESULT OF THIS, SUCH LETTERS ARE TO BE DEPLORED .

28 IN THESE CIRCUMSTANCES THE RULE CONTAINED IN ARTICLE 70 OF THE RULES OF PROCEDURE MUST BE APPLIED .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .