61985J0232

OFFICIALS - ACTIONS - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - TIME-LIMITS - MATTER OF PUBLIC POLICY - EXPIRY - REOPENING OF TIME-LIMIT - CONDITIONS - NEW FACT

( STAFF REGULATIONS , ARTS 90 AND 91 )

UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS ANY OFFICIAL MAY REQUEST THE APPOINTING AUTHORITY TO TAKE A DECISION RELATING TO HIM . HOWEVER , THAT DOES NOT ENABLE AN OFFICIAL TO EVADE THE TIME-LIMITS PRESCRIBED IN ARTICLES 90 AND 91 FOR THE LODGING OF COMPLAINTS AND APPEALS BY USING SUCH A REQUEST AS A MEANS OF CONTESTING AN EARLIER DECISION WHICH WAS NOT CHALLENGED WITHIN THE TIME-LIMITS . THOSE TIME-LIMITS ARE A MATTER OF PUBLIC POLICY SINCE THEY WERE LAID DOWN WITH A VIEW TO ENSURING CLARITY AND LEGAL CERTAINTY AND THE PARTIES ARE ABSO LUTELY BOUND BY THEM . IT FOLLOWS THAT ONLY THE EXISTENCE OF IMPORTANT NEW FACTS IS CAPABLE OF JUSTIFYING THE SUBMISSION OF A REQUEST FOR RECONSIDERATION OF A DECISION WHICH IS NO LONGER OPEN TO CHALLENGE .

THE PUBLICATION OF NOTICES OF COMPETITIONS DOES NOT CONSTITUTE A NEW FACT WHERE THEY DID NOT ALTER THE APPLICANT ' S LEGAL SITUATION , DID NOT CONCERN HIS POST DIRECTLY AND CANNOT BE REGARDED AS HAVING BROUGHT TO HIS ATTENTION FOR THE FIRST TIME THE ADMINISTRATION ' S POSITION WITH REGARD TO HIM .

IN CASE 232/85

JEAN VICTOR BECKER , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY P . BRIMEYER , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF M . MODERT , 45 A BOULEVARD JOSEPH-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , D . GOULOUSSIS , ACTING AS AGENT , ASSISTED BY R . ANDERSEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 24 APRIL 1985 REJECTING THE APPLICANT ' S COMPLAINT OF 30 NOVEMBER 1984 AGAINST THE COMMISSION ' S REFUSAL , ON 6 NOVEMBER 1984 , TO UPGRADE INTERNAL COMPETITION COM/339/82 , FOR A DECLARATION THAT THE COMMISSION IS UNDER A DUTY TO TREAT THE APPLICANT WITHOUT DISCRIMINATION , AND FOR AN ORDER REQUIRING THE COMMISSION TO COMPENSATE THE APPLICANT FOR THE DAMAGE THAT HE HAS SUFFERED ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 23 JULY 1985 , JEAN VICTOR BECKER , AN OFFICIAL IN GRADE A 6 OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES ESSENTIALLY FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 24 APRIL 1985 REJECTING HIS COMPLAINT OF 30 NOVEMBER 1984 AGAINST THE COMMISSION ' S REFUSAL TO UPGRADE INTERNAL COMPETITION COM/339/82 .

2 MR BECKER WAS ENGAGED BY THE COMMISSION UNDER A CONTRACT DATED 10 JANUARY 1976 AS A TEMPORARY EMPLOYEE IN GRADE A 5 TO CARRY OUT THE DUTIES OF A PRINCIPAL ADMINISTRATOR IN THE CABINET OF A MEMBER OF THE COMMISSION . HIS EMPLOYMENT WAS EXTENDED BY A SUCCESSION OF CONTRACTS UNTIL FEBRUARY 1984 . ON THE BASIS OF COMPETITION COM/339/82 FOR A POST IN CAREER BRACKET A 7/A 6 , THE APPLICANT WAS APPOINTED AS A PROBATIONARY OFFICIAL IN GRADE A 6 BY DECISION OF 6 FEBRUARY 1984 , WHICH WAS NOTIFIED TO HIM ON 15 FEBRUARY 1984 .

3 MR BECKER ' S APPLICATION OF 4 JULY 1983 TO BE ADMITTED TO THAT COMPETITION WAS ACCOMPANIED BY A MEMORANDUM IN WHICH HE REFERRED TO PROMISES MADE BY A FORMER MEMBER OF THE COMMISSION THAT HE WOULD BE ESTABLISHED AS AN OFFICIAL IN GRADE A 5 AND TO INFORMATION WHICH HAD BEEN GIVEN TO HIM BY THE ADMINISTRATION TO THE EFFECT THAT EXCEPTIONS TO THE RULE THAT OFFICIALS SHOULD BE ESTABLISHED IN THE STARTING GRADES WERE MADE ONLY IN THE CASE OF POSTS OF HEAD OF A SPECIALIZED DEPARTMENT OR SIMILAR POSTS . THE APPLICANT ' S MEMORANDUM ALSO POINTED OUT THAT THE ADMINISTRATION HAD EARLIER PUBLISHED SEVERAL NOTICES OF INTERNAL COMPETITIONS FOR POSTS IN CAREER BRACKETS A 5/A 4 AND A 3 .

4 ON 27 JUNE 1984 MR BECKER REQUESTED THE APPOINTING AUTHORITY TO UPGRADE COMPETITION COM/339/82 TO ENABLE HIM TO BE APPOINTED IN GRADE A 5 . HE STATED THAT IT WAS CLEAR FROM THE NOTICES OF INTERNAL COMPETITIONS COM/296/80 , COM/460/82 AND COM/1078/83 , PUBLISHED AFTER HIS APPOINTMENT AND RELATING TO A 5/A 4 POSTS , THAT THE REASONS GIVEN BY THE COMMISSION FOR THE FAILURE TO APPOINT HIM IN GRADE A 5 WERE INCORRECT . THAT REQUEST WAS REJECTED BY A DECISION OF 6 NOVEMBER 1984 OF THE DIRECTOR-GENERAL RESPONSIBLE FOR PERSONNEL , ON THE GROUND THAT THE COMPETITIONS TO WHICH MR BECKER REFERRED HAD BEEN ORGANIZED PURSUANT TO COMMISSION DECISIONS RELATING TO RECRUITMENT POLICY , MR BECKER SUBMITTED A COMPLAINT PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , WHICH WAS REJECTED BY A DECISION OF THE VICE-PRESIDENT OF THE COMMISSION DATED 24 APRIL 1985 , WHEREUPON HE BROUGHT THIS ACTION .

5 THE COMMISSION HAS RAISED OBJECTIONS AS TO THE ADMISSIBILITY OF THE ACTION ON THE GROUND THAT THE TIME-LIMIT FOR BRINGING A COMPLAINT AGAINST THE DECISION OF 6 FEBRUARY 1984 WAS NOT COMPLIED WITH .

6 THE APPLICANT CONTENDS THAT THE ACTION WAS BROUGHT IN TIME . IN HIS VIEW IT WAS NOT UNTIL AFTER HIS APPOINTMENT , AT THE TIME OF THE PUBLICATION OF THE NOTICES OF THE ABOVEMENTIONED COMPETITIONS , WHICH CONSTITUTED NEW FACTS , THAT HE BECAME AWARE OF THE DISCRIMINATION WHICH HE HAD SUFFERED . ACCORDINGLY , THE COMMISSION ' S REPLY OF 6 NOVEMBER 1984 WAS TO BE REGARDED AS THE ACT ADVERSELY AFFECTING HIM .

7 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE REMAINING FACTS OF THE CASE AND THE DETAILED ARGUMENTS OF THE PARTIES .

8 UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS ANY OFFICIAL MAY SUBMIT TO THE APPOINTING AUTHORITY A REQUEST THAT IT TAKE A DECISION RELATING TO HIM . HOWEVER , ACCORDING TO THE CONSISTENT CASE-LAW OF THE COURT , THAT DOES NOT ENABLE AN OFFICIAL TO EVADE THE TIME-LIMITS PRESCRIBED IN ARTICLES 90 AND 91 FOR THE LODGING OF COMPLAINTS AND APPEALS BY USING SUCH A REQUEST AS A MEANS OF CONTESTING AN EARLIER DECISION WHICH WAS NOT CHALLENGED WITHIN THE TIME-LIMITS . THOSE TIME-LIMITS ARE A MATTER OF PUBLIC POLICY SINCE THEY WERE LAID DOWN WITH A VIEW TO ENSURING CLARITY AND LEGAL CERTAINTY AND THE PARTIES ARE ABSOLUTELY BOUND BY THEM . IT FOLLOWS THAT ONLY THE EXISTENCE OF IMPORTANT NEW FACTS IS CAPABLE OF JUSTIFYING THE SUBMISSION OF A REQUEST FOR RECONSIDERATION OF A DECISION WHICH IS NO LONGER OPEN TO CHALLENGE .

9 IN THIS CASE THE MEASURE ADVERSELY AFFECTING THE OFFICIAL CONCERNED WITHIN THE MEANING OF ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS , WHICH DEFINES THE COURT ' S JURISDICTION IN STAFF CASES , WAS THE COMMISSION ' S DECISION OF 6 FEBRUARY 1984 APPOINTING THE APPLICANT AS A PROBATIONARY OFFICIAL IN GRADE A 6 . THAT DECISION DETERMINED THE DUTIES TO WHICH THE APPLICANT WAS ASSIGNED AND DEFINITIVELY LAID DOWN HIS CLASSIFICATION . SINCE THAT DECISION WAS NOT CONTESTED WITHIN THE TIME-LIMITS LAID DOWN IN THE STAFF REGULATIONS IT IS NECESSARY TO CONSIDER WHETHER ANY IMPORTANT NEW FACT HAS ARISEN WHICH WARRANTS ALLOWING THE DECISION TO BE CHALLENGED AFTER THE EXPIRY OF THE TIME-LIMITS .

10 IT MUST BE HELD THAT THE PUBLICATION OF NOTICES OF SEVERAL COMPETITIONS FOR GRADE A 5/A 4 POSTS DOES NOT CONSTITUTE A NEW FACT . THOSE NOTICES DID NOT ALTER THE APPLICANT ' S LEGAL SITUATION . THEY DID NOT CONCERN THE APPLICANT ' S POST DIRECTLY AND CANNOT BE REGARDED AS HAVING BROUGHT TO HIS ATTENTION FOR THE FIRST TIME THE FACT THAT THE COMMISSION ORGANIZES COMPETITIONS FOR POSTS OTHER THAN POSTS IN CAREER BRACKET A 7/A 6 . BESIDES , AS LONG AGO AS 4 JULY 1983 WHEN HE SUBMITTED HIS APPLICATION THE APPLICANT DREW THE ATTENTION OF THE COMMISSION TO THE EXISTENCE OF EXCEPTIONS TO THE RULE THAT OFFICIALS ARE ESTABLISHED IN THE STARTING GRADE FOLLOWING AN INTERNAL COMPETITION .

11 IT MUST CONSEQUENTLY BE HELD THAT THE APPLICANT ' S SITUATION WAS NOT SUBSTANTIALLY ALTERED BY THE PUBLICATION OF THE ABOVEMENTIONED NOTICES OF COMPETITION AFTER HIS APPOINTMENT AND THAT THEREFORE THE SAID NOTICES CANNOT BE REGARDED AS BEING NEW FACTS ON WHICH HE COULD RELY .

12 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

COSTS

13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THOSE RULES , INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION AS INADMISSIBLE ;

( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .