61972J0019

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OFFICIALS - APPLICATIONS TO THE COURT - PERIOD FOR LODGING - OBSERVANCE THEREOF UNCONDITIONAL

( STAFF REGULATIONS OF OFFICIALS; TEXT OF ARTICLE 91 IN FORCE PRIOR TO 1 JULY 1972 )

THE PERIOD LAID DOWN IN ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS, AS THAT PROVISION WAS WORDED PRIOR TO 1 JULY 1972, IS UNCONDITIONAL; IN PARTICULAR, IT THEREFORE APPLIES WITHOUT ITS BEING NECESSARY TO ASCERTAIN WHETHER THE PROLONGED SILENCE OF THE ADMINISTRATION FOLLOWING THE REQUEST OR COMPLAINT OF THE PERSON CONCERNED CONSTITUTES NEGLIGENCE .

IN CASE 19/72

RUDOLF THOMIK, A FORMER OFFICIAL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MAXIMILIAN HIMMEL, ADVOCATE OF THE LANDGERICHT, DUESSELDORF, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 24B RUE PHILIPPE-II, APPLICANT,

V

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

APPLICATION, AT THE PRESENT STAGE OF THE PROCEDURE, CONCERNING THE ADMISSIBILITY OF THE APPLICATION SEEKING ANNULMENT OF A DECISION WHICH THE APPLICANT CONSIDERS TO FLOW FROM THE COMMISSION' S LETTER OF 21 FEBRUARY 1972 REFUSING HIM FOUR - INSTEAD OF TWO - MONTHS' SALARY BY WAY OF RESETTLEMENT ALLOWANCE,

I - ADMISSIBILITY

1 THE APPLICATION WHICH WAS LODGED AT THE COURT REGISTRY ON 4 MAY 1972 SEEKS, FIRST, THE ANNULMENT OF THE DECISION WHICH THE APPLICANT CONSIDERS TO FLOW FROM THE LETTER OF 21 FEBRUARY 1972 BY WHICH THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION OF THE COMMISSION REJECTED THE APPLICANT' S REQUEST FOR A RESETTLEMENT ALLOWANCE EQUAL TO FOUR AND NOT MERELY TWO MONTHS OF HIS LAST BASIC SALARY . THE APPLICATION ALSO SEEKS AN ORDER DIRECTING THE COMMISSION TO PAY THE APPLICANT, BY WAY OF THIS ALLOWANCE, A SUM CORRESPONDING TO TWO MONTHS OF THE SAID SALARY .

2 IN ITS STATEMENT ON THE PROCEDURAL ISSUE THE COMMISSION HAS CONTENDED THAT THE APPLICATION IS INADMISSABLE ON THE GROUND THAT IT IS OUT OF TIME BECAUSE THE LETTER OF 21 FEBRUARY 1972 MERELY CONFIRMED THE DECISION CONVEYED IN THE LETTER OF 24 JUNE 1971 BY WHICH THE DIRECTOR-GENERAL, FOR THE FIRST TIME, REJECTED THE APPLICANT' S REQUEST . THE APPLICANT IS SAID TO HAVE FAILED TO CONTEST THAT DECISION BEFORE THE COURT WITHIN THE PERIOD OF THREE MONTHS LAID DOWN BY ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS . THE COMMISSION ASSERTS THAT THE ACTION IS ALSO INADMISSIBLE EVEN IF IT IS FOUND THAT THE LETTER OF 8 JULY 1971, BY WHICH THE APPLICANT REQUESTED THE DIRECTOR-GENERAL TO RECONSIDER HIS ATTITUDE, CONSTITUTED A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS . IN FACT, IN THE COMMISSION' S OPINION, IN ACCORDANCE WITH ARTICLE 91 OF THE STAFF REGULATIONS, THE COMPLAINT MUST THEN BE REGARDED AS HAVING BEEN THE SUBJECT OF AN IMPLIED DECISION OF REJECTION TAKEN AT THE END OF A PERIOD OF TWO MONTHS FROM THE DAY ON WHICH THE COMPLAINT WAS LODGED AND THE APPLICANT, ON PAIN OF BEING TIME-BARRED, SHOULD HAVE CONTESTED THE DECISION WITHIN A FURTHER PERIOD OF TWO MONTHS, IN OTHER WORDS, BY MID-NOVEMBER 1971 AT THE LATEST .

3 THE OBJECTION OF INADMISSIBILITY MUST BE JUDGED ON THE BASIS OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS IN THE FORM IN WHICH THEY WERE IN FORCE WHEN THE ABOVEMENTIONED LETTERS WERE WRITTEN - HEREINAFTER REFERRED TO RESPECTIVELY AS " THE FORMER ARTICLE 90 " AND " THE FORMER ARTICLE 91 " - THAT IS, WITHOUT TAKING ACCOUNT OF THE AMENDMENTS INTRODUCED BY ARTICLES 38 AND 39 OF REGULATION ( EURATOM, ECSC, EEC ) NO 1473/72 OF THE COUNCIL, OF 30 JUNE 1972 ( OJ, ENGLISH SPECIAL EDITION 1972, P . 703 ) WHICH, ACCORDING TO THE TERMS OF ARTICLE 90 OF THAT REGULATION, ENTERED INTO FORCE ONLY ON 1 JULY 1972 .

4 BECAUSE IT REJECTED THE APPLICANT' S REQUEST OF 25 MAY 1971, THE LETTER OF 24 JUNE 1971 CONSTITUTED AN ACT ADVERSELY AFFECTING HIM WITHIN THE MEANING OF THE FORMER ARTICLE 91 OF THE STAFF REGULATIONS . THE APPLICANT THEREFORE HAD THE CHOICE EITHER OF LODGING AN APPLICATION DIRECTLY WITHIN THE PERIOD OF THREE MONTHS LAID DOWN BY THE FIRST SUBPARAGRAPH OF THE FORMER ARTICLE 91 ( 2 ) OR OF CONSERVING THE RIGHT OF APPEAL BY SUBMITTING TO THE APPOINTING AUTHORITY, WITHIN THAT PERIOD AND PURSUANT TO THE FORMER ARTICLE 90 OF THE SAME STAFF REGULATIONS, A COMPLAINT AGAINST THE MEASURE TAKEN IN THIS REGARD . HE IN FACT MADE USE OF THE SECOND POSSIBILITY BY HIS LETTER OF 8 JULY 1971 WHICH MUST BE REGARDED AS A COMPLAINT WITHIN THE MEANING OF THE FORMER ARTICLE 90 OF THE STAFF REGULATIONS SINCE IT CLEARLY SOUGHT A DECISION REVERSING THAT CONVEYED IN THE LETTER OF 24 JUNE 1971 .

5 UNDER THE SECOND SUBPARAGRAPH OF THE FORMER ARTICLE 91 ( 2 ) 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 ", AND : " AN APPEAL AGAINST SUCH DECISION SHALL BE LODGED WITHIN A FURTHER TWO MONTHS ". CONSEQUENTLY, SINCE THE COMMISSION DID NOT GIVE A DECISION ON THE COMPLAINT WITHIN A PERIOD OF TWO MONTHS, IT WAS DEEMED TO HAVE TAKEN AN IMPLIED DECISION REJECTING IT IN SEPTEMBER 1971 WHICH THE APPLICANT DID NOT CONTEST WITHIN THE SECOND PERIOD OF TWO MONTHS MENTIONED ABOVE, IN OTHER WORDS, IN NOVEMBER 1971 AT THE LATEST .

6 ALTHOUGH THIS APPLICATION, WHICH IS DIRECTED AGAINST THE EXPRESS DECISION OF REJECTION OF 21 FEBRUARY 1972, WAS BROUGHT IN DUE TIME, THAT DECISION WAS HOWEVER MERELY IN CONFIRMATION OF THE IMPLIED DECISION MENTIONED ABOVE AND OF THE LETTER OF 24 JUNE 1971 AND, CONSEQUENTLY, WAS NOT CAPABLE OF RE-OPENING THE PERIOD FOR LODGING AN APPLICATION . IT CANNOT BE OBJECTED IN THIS CASE THAT THE DECISION OF 21 FEBRUARY 1972 CONTAINS NEW CONSIDERATIONS OF LAW OR FACT RELATING TO THE SITUATION AT THE TIME OF THE IMPLIED DECISION OF REJECTION ON THE GROUND THAT THE COMMISSION, TO JUSTIFY ITS ATTITUDE, ADVANCED IN THAT DECISION ARGUMENTS SUPPLEMENTING THOSE WHICH IT HAD ALREADY ADDUCED IN ITS LETTER OF 24 JUNE 1971 . IN THIS CONNEXION, IT SUFFICES TO NOTE THAT THE COMMISSION DID NOT AT ANY TIME DESIST FROM ITS ARGUMENT THAT THE APPLICANT' S REQUEST WAS UNFOUNDED .

7 THE APPLICANT HAS ALSO OBJECTED THAT THE DEFENDANT CANNOT IN GOOD FAITH RELY ON THE EXPIRY OF THE PERIOD LAID DOWN IN THE FORMER ARTICLE 91 OF THE STAFF REGULATIONS SINCE THIS WOULD ALLOW IT TO TAKE ADVANTAGE OF ITS OWN NEGLIGENCE IN NOT REPLYING TO THE LETTER OF 8 JULY 1971 UNTIL MORE THAN SEVEN MONTHS HAD ELAPSED .

8 THIS ARGUMENT DISREGARDS THE FACT THAT THE PERIOD IN QUESTION IS UNCONDITIONAL, THAT, IN PARTICULAR, IT THEREFORE APPLIES WITHOUT ITS BEING NECESSARY TO ASCERTAIN WHETHER THE PROLONGED SILENCE OF THE INSTITUTION CONSTITUTES NEGLIGENCE ON ITS PART .

9 THE APPLICATION IS THEREFORE INADMISSIBLE .

10 THE APPLICANT HAS FAILED IN HIS APPLICATION . ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, ACCORDING TO ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .