61967J0015

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1 . PROCEDURE - INTEREST IN TAKING LEGAL PROCEEDINGS - TYPE OF INTEREST JUSTIFYING AN APPLICATION TO THE COURT

2 . COSTS - APPLICATIONS BY OFFICIALS OF THE EUROPEAN COMMUNITIES - COSTS WHICH ONE PARTY HAS UNREASONABLY CAUSED THE OPPOSITE PARTY TO INCUR

( RULES OF PROCEDURE, SECOND SUBPARAGRAPH OF ARTICLE 69(3 ) AND ARTICLE 70 )

1 . THE INTEREST JUSTIFYING THE APPLICATION MUST NOT BE OF AN ABSTRACT NATURE .

2 . CF . SUMMARY, JOINED CASES 5, 7 AND 8/60, ( 1961 ) ECR 107 .

IF, AFTER A FACT HAS ARISEN, ONE OF THE PARTIES TO LEGAL PROCEEDINGS NO LONGER HAS AN INTEREST IN THEM AND DECIDES TO CONTINUE THE ACTION, THE SUBSEQUENT COSTS OF THE ACTION ARE TO BE CONSIDERED AS COSTS UNREASONABLY INCURRED AND SHALL BE BORNE BY THAT PARTY .

*/ 660J0005 /*.

IN CASE 15/67

ALOIS BAUER, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN LUXEMBOURG ASSISTED BY FERNAND PROBST, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS COUNSEL, 26 AVENUE DE LA LIBERTE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, TAKING THE PLACE OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY IN ACCORDANCE WITH ARTICLE 9 OF THE TREATY OF 8 APRIL 1965, REPRESENTED BY ITS LEGAL ADVISER, PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 2 PLACE DE METZ,

DEFENDANT,

APPLICATION CONCERNING THE DECISION OF THE PRESIDENT OF THE HIGH AUTHORITY DATED 3 MARCH 1967 REFUSING THE APPLICANT'S REQUEST MADE ON 13 FEBRUARY 1967 FOR THE REPORTS MADE ON HIM IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 43 OF THE STAFF REGULATIONS TO BE COMMUNICATED TO HIM IN ACCORDANCE WITH THE SECOND PARAGRAPH OF THAT ARTICLE,

P.401

THE APPLICANT CLAIMS IN HIS APPLICATIONS THAT THE COURT SHOULD :

' AMEND THE REFUSAL OF THE PRESIDENT OF THE HIGH AUTHORITY OF THE COAL AND STEEL COMMUNITY AND DECLARE THAT THE APPLICANT'S REQUEST MUST BE COMPLIED WITH AND THAT THE REPORTS MADE WITH REGARD TO HIM MUST BE COMMUNICATED TO HIM IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 43 OF THE STAFF REGULATIONS OF OFFICIALS AND SERVANTS OF THE COMMUNITY AND IN PARTICULAR THAT DATED 11 MAY 1966 FROM THE DIRECTORATE FOR OTHER SOURCES OF ENERGY HEADED : " APPRECIATION DE M . ALOIS BAUER " (" REPORT ON MR ALOIS BAUER ") BEGINNING WITH THE WORDS " EN SERVICE A LA HAUTE AUTHORITE " AND ENDING " RECHERCHE DE L' ESSENTIEL ";

ORDER THE DEFENDANT TO PAY THE COSTS '.

IT IS NOT DISPUTED THAT THE DEFENDANT BY ITS LETTER OF 29 MAY 1967 COMMUNICATED TO THE APPLICANT THE REPORT OF 11 MAY 1966 WHICH IS THE ONLY ONE MAKING AN ASSESSMENT WITH REGARD TO HIM . THE DEFENDANT ALSO PRODUCED THIS REPORT BY WAY OF A SCHEDULE TO ITS STATEMENT OF DEFENCE . IT HAS FURTHER UNDERTAKEN TO PAY THE COSTS OF THE ACTION INCURRED BY THE APPLICANT UP TO THE TIME WHEN ITS STATEMENT OF DEFENCE WAS LODGED . THE COMMUNICATION OF THIS REPORT AND THE OFFER TO PAY THE COSTS SATISFY THE PURPOSE OF THE APPLICATION . THERE IS THEREFORE NO OCCASION FOR THE COURT TO GIVE ANY DECISION ON THIS POINT .

THE APPLICANT HAS TAKEN THE VIEW THAT THE DEFENDANT MADE ITS ACCEPTANCE SUBJECT TO ' RESERVATIONS OR NON-DISCLOSURES ' SO AS TO AVOID RECOGNIZING THE ADMISSIBILITY OF THE APPLICATION AND IN PARTICULAR TO AVOID ADMITTING THE APPLICANT'S INTEREST IN SECURING THE COMMUNICATION TO HIM OF REPORTS MADE WITH REGARD TO HIM IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 43 OF THE STAFF REGULATIONS . HE ACCORDINGLY LODGED A STATEMENT IN REPLY IN WHICH HE CLAIMS THAT THE COURT SHOULD DECLARE THAT THE LODGMENT OF THIS REPORT AND THE OFFER TO PAY THE COSTS OF THE PROCEEDINGS CONSTITUTE A CLEAR ACCEPTANCE OF THE ORIGINAL REQUEST, WITH ALL ITS CONSEQUENCES IN LAW .

IN ITS STATEMENT OF DEFENCE THE DEFENDANT HAS ALLEGED INCIDENTALLY THAT THE REQUEST MADE BY THE APPLICANT IN HIS NOTE OF 13 FEBRUARY 1967 ADDRESSED TO THE PRESIDENT OF THE HIGH AUTHORITY WAS IN TERMS DIFFERENT FROM THOSE IN THE CONCLUSIONS CONTAINED IN THE APPLICATION . SUCH AN ALLEGATION EVEN IF WELL-FOUNDED IS IRRELEVANT TO THE QUESTION AT ISSUE AND IN THE PRESENT CASE CANNOT THEREFORE ADVERSELY AFFECT THE APPLICANT . THE INTEREST WHICH THE APPLICANT CLAIMS IN THE CONCLUSIONS CONTAINED IN HIS REPLY ASSUMES AN ABSTRACT CHARACTER AFTER THE COMMUNICATION TO HIM OF THE REPORT OF 11 MAY 1966 AND IS THEREFORE INSUFFICIENT TO JUSTIFY THE ADMISSIBILITY OF SUCH SUBMISSIONS AND THE CONTINUATION OF THE PROCEEDINGS . FOR THESE REASONS THE STEPS TAKEN BY THE APPLICANT FROM THE TIME OF THE REPLY MUST BE CONSIDERED AS HAVING BEEN UNNECESSARY .

THE DEFENDANT HAS AGREED IN ITS STATEMENT OF DEFENCE TO BEAR THE COSTS INCURRED BY THE APPLICANT UP TO THE TIME WHEN IT LODGED THIS STATEMENT; IT IS PROPER FOR THE COURT TO TAKE JUDICIAL NOTICE OF THIS .

UNDER ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE, COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THOSE INSTITUTIONS, WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69(3 ) OF THOSE RULES, UNDER WHICH THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY CAUSED THE OPPOSITE PARTY TO INCUR .

THE APPLICANT MUST BE REGARDED AS HAVING UNREASONABLY CAUSED THE DEFENDANT TO INCUR THE COSTS FROM THE TIME OF THE REPLY, IN VIEW OF THE UNNECESSARY NATURE OF THE SUBSEQUENT PROCEEDINGS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DECLARES THAT THERE IS NO OCCASION TO PROCEED TO JUDGMENT ON THE CONCLUSIONS CONTAINED IN THE APPLICATION;

2 . REJECTS THE CONCLUSIONS CONTAINED IN THE REPLY AS INADMISSIBLE;

3 . ORDERS THE DEFENDANT TO PAY THE COSTS OF THE PROCEEDINGS PRIOR TO THE LODGMENT OF THE REPLY;

4 . ORDERS THE APPLICANT TO PAY THE COSTS INCURRED FROM THE LODGMENT OF THE REPLY, INCLUDING THOSE INCURRED BY THE DEFENDANT .