61970J0079

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1 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - CALCULATION OF EMOLUMENTS BY THE ADMINISTRATION - DISAGREEMENTS BETWEEN THE LATTER AND THE OFFICIAL CONCERNED - ACT ADVERSELY AFFECTING AN OFFICIAL

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 91 )

2 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - CHOICE OF THE OFFICIAL CONCERNED BETWEEN APPEAL TO THE COURT AND PRESERVATION OF THE PERIOD FOR LODGING AN APPEAL TO THE COURT BY SUBMITTING A REQUEST THROUGH OFFICIAL CHANNELS WITHIN THAT PERIOD

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 91 )

3 . OFFICIALS - REQUEST THROUGH OFFICIAL CHANNELS - PROVISIONAL REPLY FROM THE ADMINISTRATION GIVING NOTICE OF A SUBSEQUENT DECISION - ABSENCE OF DECISION

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 91 )

4 . OFFICIALS - APPEAL TO THE COURT - TIME-LIMITS - MATTER OF PUBLIC POLICY - EXTENSION NOT PERMISSIBLE

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 91 )

5 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - MEASURE CONFIRMING A PREVIOUS MEASURE - ABSENCE OF ACT ADVERSELY AFFECTING AN OFFICIAL - APPLICATION AGAINST SUCH A MEASURE - PERIOD FOR LODGING AN APPLICATION AGAINST THE PREVIOUS ACT - CANNOT START TO RUN AFRESH

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 91 )

1 . A DOCUMENT DRAWN UP BY THE FINANCIAL CONTROLLER AND THE AUTHORIZING OFFICER OF AN INSTITUTION CONSTITUTES A DECISION WHEN IT INDICATES CLEARLY THAT THE EMOLUMENTS OF A GIVEN OFFICIAL MUST BE CALCULATED ON A DIFFERENT BASIS FROM THAT WHICH THE OFFICIAL HAS CLAIMED AND GIVES REASONS IN SUPPORT THEREOF .

2 . WHEN A DECISION AFFECTS HIM ADVERSELY, THE OFFICIAL CONCERNED HAS THE CHOICE OF EITHER DIRECTLY LODGING AN APPEAL WITHIN THE PERIOD LAID DOWN BY THE FIRST PARAGRAPH OF ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS OR OF PRESERVING THE RIGHT OF APPEAL BY SUBMITTING WITHIN THAT PERIOD UNDER ARTICLE 90 OF THE SAME STAFF REGULATIONS A COMPLAINT AGAINST THE DECISION TAKEN RELATING TO HIM .

3 . A MEMORANDUM WHICH MERELY GIVES NOTICE OF A SUBSEQUENT DECISION ON A COMPLAINT SUBMITTED BY A SERVANT DOES NOT CONSTITUTE A DECISION WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS . ITS EXISTENCE DOES NOT THEREFORE MAKE IT IMPOSSIBLE THAT THERE SHOULD BE " NO DECISION " WITHIN THE MEANING OF THAT PROVISION .

4 . THE PERIODS LAID DOWN IN ARTICLE 91 OF THE STAFF REGULATIONS ARE MATTERS OF PUBLIC POLICY . THEREFORE, THE PROVISION THAT AT THE EXPIRATION OF TWO MONTHS FROM THE DATE WHEN A COMPLAINT HAS BEEN LODGED, THE FACT THAT THE AUTHORITY HAS TAKEN NO DECISION MUST BE CONSIDERED AN IMPLIED DECISION REJECTING IT APPLIES EVEN WHERE, AT THE TIME WHEN THAT IMPLIED DECISION IS DEEMED TO HAVE BEEN MADE, THE SAID AUTHORITY STILL HOPED TO BE ABLE TO GIVE A FAVOURABLE REPLY TO THE COMPLAINT .

5 . A DECISION WHICH MERELY CONFIRMS A PREVIOUS DECISION, EVEN AN IMPLIED DECISION, CANNOT AFFECT AN OFFICIAL ADVERSELY . THEREFORE AN APPEAL LODGED AGAINST THAT SUBSEQUENT DECISION CANNOT START THE PERIOD LAID DOWN BY THE STAFF REGULATIONS FOR LODGING THE APPEAL DIRECTED AGAINST THE PREVIOUS DECISION TO RUN AFRESH .

IN CASE 79/70

HELMUT MUELLERS, AN OFFICIAL OF THE ECONOMIC AND SOCIAL COMMITTEE OF THE EEC AND EAEC, RESIDING AT 31 AVENUE MARIUS-RENARD, ANDERLECHT, REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, CENTRE LOUVIGNY, 34 B/IV RUE PHILIPPE-II, APPLICANT,

V

ECONOMIC AND SOCIAL COMMITTEE OF THE EEC AND EAEC, REPRESENTED BY PIERRE PIXIUS, ACTING AS AGENT, ASSISTED BY ANDRE ELVINGER, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ADVOCATE, 84 GRANDE-RUE, DEFENDANT,

APPLICATION IN PARTICULAR FOR THE ANNULMENT

- OF THE DECISION OF 10 SEPTEMBER 1970 WHEREBY THE SECRETARY-GENERAL OF THE DEFENDANT COMMITTEE REJECTED THE APPLICANT' S COMPLAINT OF 12 FEBRUARY 1970 IN WHICH HE ASKED TO BE REIMBURSED BY WAY OF EDUCATION ALLOWANCE FOR THE EXPENDITURE INCURRED BY HIM IN USING HIS PRIVATE CAR TO TRANSPORT HIS SON TO THE EUROPEAN SCHOOL;

- IN SO FAR AS IS NECESSARY, OF DECISION NO 1001/65 OF THE CHAIRMAN OF THE DEFENDANT COMMITTEE OF 23 DECEMBER 1965 CONTAINING " GENERAL IMPLEMENTING PROVISIONS FOR THE GRANT OF THE EDUCATION ALLOWANCE ",

1 THE APPLICATION BASICALLY SEEKS THE ANNULMENT OF THE DECISION OF THE SECRETARY-GENERAL OF THE DEFENDANT COMMITTEE OF 10 SEPTEMBER 1970 RELATING TO THE EDUCATION ALLOWANCE FOR THE APPLICANT' S SON AND REJECTING THE " OBJECTION " SUBMITTED AGAINST THIS BY THE APPLICANT ON 19 FEBRUARY 1970 .

DESIGNATION OF THE DEFENDANT

2 THE APPLICANT HAS DESIGNATED AS DEFENDANT THE ECONOMIC AND SOCIAL COMMITTEE AND " IN SO FAR AS IS NECESSARY " THE COUNCIL OF THE EUROPEAN COMMUNITIES WHICH HOWEVER HAS NOT APPEARED AS DEFENDANT .

3 UNDER THE SECOND PARAGRAPH OF ARTICLE 1 OF THE STAFF REGULATIONS OF OFFICIALS, " SAVE AS OTHERWISE PROVIDED, THE ECONOMIC AND SOCIAL COMMITTEE SHALL, FOR THE PURPOSES OF THESE STAFF REGULATIONS, BE TREATED AS ONE OF THE INSTITUTIONS OF THE COMMUNITIES ".

4 IN THE ABSENCE OF SUCH PROVISIONS TO THE CONTRARY, IT MUST THEREFORE BE ACKNOWLEDGED THAT THE SAID COMMITTEE HAS THE CAPACITY TO APPEAR BEFORE THE COURT IN PROCEEDINGS BETWEEN IT AND ONE OF ITS OFFICIALS .

5 THE PRESENT APPLICATION MUST THEREFORE BE CONSIDERED AS DIRECTED SOLELY AGAINST THE ECONOMIC AND SOCIAL COMMITTEE .

ADMISSIBILITY

6 ALTHOUGH THE DEFENDANT HAS NOT CHALLENGED THE ADMISSIBILITY OF THE APPLICATION, THE COURT MUST EXAMINE OF ITS OWN MOTION WHETHER THE APPLICATION IS OUT OF TIME .

7 ON 8 DECEMBER 1969, THE APPLICANT ASKED THE ADMINISTRATION, GIVING DETAILED REASONS IN SUPPORT OF HIS REQUEST, TO GRANT HIM AN EDUCATION ALLOWANCE OF BFRS 4 410 FOR THE PERIOD FROM 17 SEPTEMBER TO 31 DECEMBER 1969 .

8 BY A DOCUMENT DATED 12 DECEMBER 1969 AND SIGNED BY THE FINANCIAL CONTROLLER AND THE AUTHORIZING OFFICER ON 15 DECEMBER, THIS ALLOWANCE WAS FIXED AT BFRS 3 250 FOR THE PERIOD IN QUESTION .

9 BY MEMORANDUM OF 19 FEBRUARY 1970 ADDRESSED TO THE RELEVANT HEAD OF DIVISION, THE APPLICANT STATED THAT HE WAS " SUBMITTING AN OBJECTION " AGAINST THE CALCULATION OF HIS ALLOWANCE AND HE REPEATED HIS REQUEST OF 8 DECEMBER 1969 .

10 BY MEMORANDUM OF 31 MARCH 1970 HE WAS GIVEN THE REPLY THAT THE SECRETARY-GENERAL OF THE DEFENDANT COMMITTEE HAD REQUESTED THE HEADS OF ADMINISTRATION OF THE COMMUNITY INSTITUTIONS TO TAKE A DECISION OF PRINCIPLE ON THE PROBLEM RAISED BY THE APPLICANT AND THE LATTER WAS ASKED IN THESE WORDS TO : " BE SO GOOD AS TO WAIT A LITTLE LONGER FOR THE FINAL SOLUTION OF THE MATTER . WHEN THE HEADS OF ADMINISTRATION HAVE COME TO THEIR DECISION YOU WILL RECEIVE A FURTHER REPLY ".

11 THE HEADS OF ADMINISTRATION MADE A DECISION UNFAVOURABLE TO THE APPLICANT AND THE SECRETARY-GENERAL OF THE DEFENDANT COMMITTEE REJECTED THE " OBJECTION " OF THE APPLICANT BY DECISION OF 10 SEPTEMBER 1970 WHICH WAS NOTIFIED ON 18 SEPTEMBER .

12 ON 11 DECEMBER 1970, THE APPLICANT LODGED THE PRESENT APPLICATION .

13 THE DOCUMENT OF 15 DECEMBER 1969, WHICH WAS DRAWN UP BY THE COMPETENT AUTHORITY AT THAT STAGE CONSTITUTED A DECISION BECAUSE IT INDICATES, BRIEFLY BUT CLEARLY, THAT THE TRANSPORT COSTS SHOULD BE CALCULATED ON A BASIS DIFFERENT FROM THAT WHICH THE APPLICANT HAD CLAIMED AND IN SUPPORT WHEREOF HE HAD GIVEN REASONS IN HIS LETTER OF 8 DECEMBER 1969 .

14 THE APPLICANT THEN HAD THE CHOICE OF EITHER DIRECTLY LODGING AN APPEAL WITHIN THE PERIOD OF THREE MONTHS LAID DOWN BY THE FIRST PARAGRAPH OF ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS, OR OF PRESERVING THE RIGHT OF APPEAL BY SUBMITTING TO THE APPOINTING AUTHORITY WITHIN THAT PERIOD UNDER ARTICLE 90 OF THE SAME STAFF REGULATIONS A COMPLAINT AGAINST THE DECISION TAKEN RELATING TO HIM .

15 IN FACT HE USED THE SECOND POSSIBILITY BY HIS MEMORANDUM OF 19 FEBRUARY 1970 WHICH, ALTHOUGH IT WAS DESCRIBED BY HIM AS AN " OBJECTION " AND DID NOT OBSERVE THE CONDITIONS FOR LODGING A COMPLAINT LAID DOWN IN ARTICLE 90, MUST BE CONSIDERED AS A COMPLAINT WITHIN THE MEANING OF THAT ARTICLE SINCE IT OBVIOUSLY SOUGHT TO OBTAIN A DECISION FROM THE APPOINTING AUTHORITY ON THE QUESTION AT ISSUE .

16 UNDER THE SECOND SUBPARAGRAPH OF ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS, " WHERE THE COMPETENT AUTHORITY TAKES NO DECISION IN RESPECT OF A REQUEST OR A COMPLAINT FROM A PERSON COVERED BY THESE STAFF REGULATIONS 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 ".

17 THE MEMORANDUM OF 31 MARCH 1970 MERELY GAVE NOTICE THAT A FINAL REPLY WOULD BE GIVEN SUBSEQUENTLY AND IT DID NOT CONSTITUTE A DECISION SO THAT, IN ACCORDANCE WITH THE PROVISION QUOTED, THE DEFENDANT WAS DEEMED TO HAVE REJECTED THE COMPLAINT OF 19 FEBRUARY 1970 BY AN IMPLIED DECISION MADE IN APRIL 1970 .

18 ALTHOUGH IT IS CORRECT THAT AT THAT TIME THE DEFENDANT STILL HOPED TO BE ABLE TO GIVE A FAVOURABLE REPLY TO THE COMPLAINT, THIS DOES NOT ALTER THE FACT THAT IT IS NOT FOR THE PARTIES WHO ARE DIRECTLY CONCERNED TO EXTEND AT THEIR OWN CONVENIENCE THE PERIODS LAID DOWN IN ARTICLE 91 OF THE STAFF REGULATIONS SINCE THESE ARE MATTERS OF PUBLIC POLICY AND RIGOROUS COMPLIANCE WITH THEM IS CALCULATED TO ENSURE THE CLARITY AND CERTAINTY OF LEGAL SITUATIONS .

19 IN ACCORDANCE WITH THE SAME ARTICLE, THE APPLICANT SHOULD HAVE LODGED AN APPLICATION AGAINST THE IMPLIED DECISION OF APRIL 1970 WITHIN A PERIOD OF TWO MONTHS, THAT IS, NOT LATER THAN JUNE 1970, ON PAIN OF BEING BARRED AS OUT OF TIME, BUT HE DID NOT DO THIS .

20 ALTHOUGH THIS APPLICATION, WHICH WAS DIRECTED AGAINST THE EXPRESS DECISION REJECTING HIS COMPLAINT, WAS LODGED WITHIN THE REQUIRED PERIOD, THIS DECISION HOWEVER SIMPLY CONFIRMS THE EXPRESS DECISION AND CANNOT THEREFORE AFFECT THE APPLICANT ADVERSELY .

21 IN THIS RESPECT, THE OBJECTION CANNOT BE RAISED THAT THE EXPRESS DECISION CONTAINS A NEW FACTOR RELATING TO THE LEGAL OR FACTUAL SITUATION WHICH EXISTED AT THE TIME OF THE IMPLIED REJECTION, ON THE GRUND THAT THE DEFENDANT HAD NOT AT THAT TIME YET DECIDED FINALLY TO REJECT THE COMPLAINT .

22 IN FACT, THE DEFENDANT CONSTANTLY CONSIDERED THAT A FAVOURABLE DECISION COULD NOT BE GIVEN ON THAT COMPLAINT WITH THE REGULATIONS AS THEY STOOD .

23 THE APPLICATION IS THEREFORE INADMISSIBLE .

24 IT FOLLOWS FROM ARTICLE 69 ( 2 ) AND ARTICLE 70 OF THE RULES OF PROCEDURE THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS BUT THAT INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN APPLICATIONS BY SERVANTS OF THE COMMUNITIES .

25 HOWEVER, UNDER ARTICLE 69 ( 3 ) WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL, THE COURT MAY ORDER THAT THE PARTIES SHALL BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

26 IN THIS CASE, SINCE THE APPLICANT WAS MISLED BY THE LETTER OF 31 MARCH 1970 REQUESTING HIM TO " WAIT ", THAT PROVISION MUST BE APPLIED AND THE DEFENDANT MUST BE ORDERED TO BEAR THE APPLICANT' S COSTS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE DEFENDANT TO PAY ALL THE COSTS .