61976J0001

1 . OFFICIALS - APPEALS - MEASURE HAVING AN ADVERSE EFFECT - NOTIFICATION - SALARY STATEMENT

( STAFF REGULATIONS OF OFFICIALS , ARTICLES 90 AND 91 )

2 . OFFICIALS - APPEALS - MEASURE HAVING AN ADVERSE EFFECT - EXPIRY OF THE PERIOD FOR LODGING AN APPEAL - CONFIRMATORY MEASURE - FRESH PERIOD FOR LODGING AN APPEAL - ABSENCE THEREOF

( STAFF REGULATIONS OF OFFICIALS , ARTICLES 90 AND 91 )

1 . THE SENDING OF THE MONTHLY SALARY STATEMENT HAS THE EFFECT OF STARTING THE TIME FOR APPEAL RUNNING , WHERE IT CLEARLY SHOWS THE DECISION TAKEN WITH REGARD TO REMUNERATION .

2 . IF THE PERIOD FOR LODGING AN APPEAL HAS EXPIRED THE CONFIRMATION OF THE MEASURE IN QUESTION CANNOT RESULT IN STARTING A FRESH PERIOD TO RUN IN FAVOUR OF THE PERSON CONCERNED .

IN CASE 1/76

UTE WACK , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 59 , BOULEVARD PRINCE FELIX , LUXEMBOURG , REPRESENTED BY VICTOR BIEL , ADVOCATE OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BIEL , 18 A RUE DES GLACIS ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , BATIMENT CFL , PLACE DE LA GARE ,

DEFENDANT ,

APPLICATION , AT THE PRESENT STAGE OF THE PROCEDURE , REGARDING THE ADMISSIBILITY OF THE APPLICATION LODGED BY THE APPLICANT FOR THE AWARD EX NUNC OF AN EXPATRIATION ALLOWANCE ,

1 THE APPLICATION , WHICH WAS LODGED AT THE COURT REGISTRY ON 2 JANUARY 1976 , IS FOR THE ANNULMENT OF A DECISION OF THE COMMISSION OF 15 OCTOBER 1975 WHEREBY THE COMMISSION REFUSED TO AWARD THE APPLICANT THE EXPATRIATION ALLOWANCE UNDER ARTICLE 4 ( A ) OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS .

2 BY A STATEMENT ON A PROCEDURAL ISSUE LODGED ON 5 FEBRUARY 1976 THE DEFENDANT RAISED UNDER ARTICLE 91 OF THE RULES OF PROCEDURE AN OBJECTION OF INADMISSIBILITY FOUNDED ON THE FACT THAT THE APPLICATION HAD NOT BEEN PRECEDED WITHIN THE PERIOD PRESCRIBED IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS BY A COMPLAINT THROUGH OFFICIAL CHANNELS DIRECTED AGAINST THE ACT ADVERSELY AFFECTING THE APPLICANT .

3 IN THIS CONNEXION THE DEFENDANT CLAIMS THAT THE DECISION NOT TO AWARD THE APPLICANT THE EXPATRIATION ALLOWANCE WAS ADOPTED WHEN SHE ENTERED THE SERVICE OF THE COMMISSION IN SEPTEMBER 1972 AND WAS NOTIFIED TO HER ON ANY INTERPRETATION BY HER FIRST MONTHLY SALARY STATEMENT AND BY THE FIRST PERSONNEL INDIVIDUAL RECORD SHEET DATED 7 NOVEMBER 1972 .

4 ON THE OTHER HAND THE APPLICANT CLAIMS THAT THE ACT ADVERSELY AFFECTING HER WAS CONSTITUTED BY THE LETTER OF 27 MAY 1975 WHEREBY THE DIRECTORATE FOR PERSONNEL OF THE COMMISSION CONFIRMED TO HER THAT SHE DID NOT FULFIL THE CONDITIONS LAID DOWN BY THE STAFF REGULATIONS FOR QUALIFYING FOR THE EXPATRIATION ALLOWANCE .

5 THE SENDING OF THE MONTHLY SALARY STATEMENT HAS THE EFFECT OF STARTING THE TIME FOR APPEAL RUNNING , WHERE IT CLEARLY SHOWS THE DECISION TAKEN .

6 THAT CONDITION IS FULFILLED IN THE PRESENT CASE .

7 THE SUBSEQUENT LETTERS OF THE COMMISSION IN REPLY TO THE REQUESTS SUBMITTED BY THE APPLICANT MERELY CONFIRMED THE EARLIER DECISION AND THUS COULD NOT RESULT IN STARTING A FRESH PERIOD TO RUN IN FAVOUR OF THE APPLICANT .

8 THE APPLICANT NEVERTHELESS CLAIMS THAT HER DIVORCE , WHICH TOOK PLACE ON 13 NOVEMBER 1974 , WHEREBY SHE WAS GIVEN CUSTODY OF HER TWO CHILDREN , CONSTITUTES A NEW FACT WHICH PUTS THE QUESTION OF THE EXPATRIATION ALLOWANCE ON A NEW BASIS .

9 WHATEVER THE EFFECTS WHICH WOULD FLOW IN OTHER CIRCUMSTANCES FROM SUCH A NEW FACT THE ARGUMENT CANNOT BE ACCEPTED IN THE PRESENT CASE SINCE THE MARITAL STATUS OF THE APPLICANT AND THE QUESTION WHETHER SHE HAD DEPENDENT CHILDREN WERE NOT AT ANY TIME , BEFORE OR AFTER THE DIVORCE , TAKEN INTO CONSIDERATION BY THE COMMISSION IN JUSTIFYING ITS REFUSAL OF THE EXPATRIATION ALLOWANCE .

10 IT MUST THUS BE CONCLUDED THAT A COMPLAINT DIRECTED AGAINST THE ACT ADVERSELY AFFECTING THE APPLICANT WAS NOT SUBMITTED WITHIN THE PERIOD LAID DOWN IN THE STAFF REGULATIONS AND THAT THE APPLICATION IS CONSEQUENTLY INADMISSIBLE UNDER ARTICLE 90 ( 2 ) THEREOF .

COSTS

11 THE APPLICANT HAS FAILED IN HER APPLICATION .

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

13 NEVERTHELESS , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY SUCH INSTITUTIONS

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

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2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .