61985J0152

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OFFICIALS - APPLICATIONS - PERIOD ALLOWED FOR BRINGING PROCEEDINGS - COMMENCEMENT - DATE OF NOTIFICATION OF DECISION REJECTING COMPLAINT - CALCULATION

( STAFF REGULATIONS, ART . 91 ( 3 ); RULES OF PROCEDURE, ARTS 80 ( 1 ) AND 81*(1 )

BY VIRTUE OF ARTICLES 80 ( 1 ) AND 81 ( 1 ) OF THE RULES OF PROCEDURE, THE PERIOD OF THREE MONTHS PROVIDED FOR IN ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS FOR COMMENCING PROCEEDINGS AGAINST A DECISION TAKEN IN RESPONSE TO A COMPLAINT DOES NOT START RUNNING UNTIL THE DAY FOLLOWING THE RECEIPT BY THE PERSON CONCERNED OF NOTIFICATION OF THE MEASURE, REGARDLESS OF THE HOUR OF DAY WHEN THE MEASURE IS NOTIFIED, AND, BEING EXPRESSED IN CALENDAR MONTHS, THAT PERIOD EXPIRES AT THE END OF THE DAY WHICH, IN THE THIRD MONTH, BEARS THE SAME NUMBER AS THE DAY FROM WHICH TIME WAS SET RUNNING, THAT IS TO SAY THE DAY OF NOTIFICATION .

IN CASE 152/85

RUDOLF MISSET, A TRANSLATOR IN THE DUTCH LANGUAGE DIVISION OF THE TRANSLATION DEPARTMENT OF THE COUNCIL, RESIDING IN BRUSSELS, REPRESENTED AND ASSISTED BY J . PUTZEYS AND X . LEURQUIN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . NICKTS, 87 AVENUE GUILLAUME,

APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY G . PEETERS, ACTING AS AGENT, ASSISTED BY J . CARBERY, BOTH MEMBERS OF THE LEGAL DEPARTMENT OF THE COUNCIL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . KAESER, MANAGER OF THE LEGAL DIRECTORATE OF THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD-ADENAUER,

DEFENDANT,

CONCERNING, AT THE PRESENT STAGE OF THE PROCEDURE, THE ADMISSIBILITY OF THE APPLICATION,

THE COURT

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, Y . GALMOT, C . KAKOURIS AND T . F . O' HIGGINS ( PRESIDENTS OF CHAMBERS ), T . KOOPMANS, O . DUE, U . EVERLING, K . BAHLMANN AND J . C . MOITINHO DE ALMEIDA, JUDGES,

ADVOCATE GENERAL : G . F . MANCINI

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 17 SEPTEMBER 1986, AT WHICH THE APPLICANT WAS REPRESENTED BY J . PUTZEYS, THE COUNCIL OF THE EUROPEAN COMMUNITIES BY G . PEETERS AND J . CARBERY, THE EUROPEAN PARLIAMENT BY J . DE WACHTER AND THE COMMISSION OF THE EUROPEAN COMMUNITIES BY D . GOULOUSSIS,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 18 NOVEMBER 1986,

GIVES THE FOLLOWING

JUDGMENT

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 21 MAY 1985, RUDOLF MISSET, WHO AT THAT TIME WAS AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, RESIDING IN BELGIUM, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF WHICH HE BECAME AWARE ON 25 SEPTEMBER 1984 INFORMING HIM THAT HE WOULD NOT THEREAFTER BE PERMITTED TO PRODUCE A MEDICAL CERTIFICATE TO JUSTIFY HIS ABSENCE FROM 18 JULY TO 3 AUGUST 1984 AND, AS FAR AS NECESSARY, FOR THE ANNULMENT OF THE DECISION OF THE SECRETARY-GENERAL OF THE COUNCIL OF 18 FEBRUARY 1985, WHICH WAS NOTIFIED TO HIM ON THAT DATE, REJECTING THE COMPLAINT MADE BY HIM AGAINST THE DECISION OF 25 SEPTEMBER 1985 UNDER ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS .

2 BY A SEPARATE DOCUMENT, THE COUNCIL LODGED AN OBJECTION THAT THE APPLICATION WAS INADMISSIBLE SINCE THE PROCEEDINGS HAD BEEN COMMENCED OUT OF TIME . THE COUNCIL STATES THAT, UNDER ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS, THE APPLICANT SHOULD HAVE BROUGHT HIS ACTION WITHIN A PERIOD OF THREE MONTHS . BY VIRTUE OF ARTICLE 80 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT, THAT PERIOD BEGAN TO RUN ON THE DAY FOLLOWING THE NOTIFICATION OF REJECTION OF THE COMPLAINT, NAMELY 19 FEBRUARY 1985 . THE NORMAL PERIOD FOR COMMENCING PROCEEDINGS THEREFORE EXPIRED ON 18 MAY 1985 . HOWEVER, SINCE THE APPLICANT WAS ALLOWED TWO FURTHER DAYS ( EXTENSION ON ACCOUNT OF DISTANCE UNDER ARTICLE 81 ( 2 ) OF THE RULES OF PROCEDURE ), THE PERIOD ALLOWED FOR COMMENCING PROCEEDINGS FINALLY EXPIRED ON 20 MAY 1985 . HOWEVER, THE APPLICATION WAS NOT RECEIVED UNTIL 21 MAY 1985, ONE DAY TOO LATE .

3 THE APPLICANT CONSIDERS THAT HE LODGED HIS APPLICATION WITHIN THE PRESCRIBED PERIOD . HE MAINTAINS THAT NEITHER THE RULES OF PROCEDURE NOR THE STAFF REGULATIONS DETERMINE THE MANNER IN WHICH THE EXPIRY OF THE PERIOD ALLOWED FOR COMMENCING PROCEEDINGS SHOULD BE CALCULATED . THE METHOD OF CALCULATION ADVOCATED BY HIM, ACCORDING TO WHICH THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS UNDER ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS INCLUDES THE LAST DAY, IN THIS CASE 21 MAY 1985, IS IN HIS VIEW IN CONFORMITY WITH THE PROVISIONS OF REGULATION NO 1182/71 OF THE COUNCIL OF 3 JUNE 1971 DETERMINING THE RULES APPLICABLE TO PERIODS, DATES AND TIME-LIMITS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P.*354 ). ALTHOUGH THAT REGULATION APPLIES ONLY TO MEASURES ADOPTED BY THE COUNCIL AND THE COMMISSION UNDER THE EEC AND EAEC TREATIES AND THEN ONLY WHERE THERE ARE NO PROVISIONS TO THE CONTRARY, IT MAY BE APPLIED BY ANALOGY TO OTHER CASES FOR WHICH MORE PRECISE PROVISIONS CONCERNING THE COMPUTATION OF PERIODS ARE NOT LAID DOWN .

4 IN THE ALTERNATIVE, THE APPLICANT CLAIMS THAT THE COURT SHOULD DECLARE THE APPLICATION ADMISSIBLE FOR REASONS OF EQUITY, SINCE THE PERIOD FOR COMMENCING PROCEEDINGS WAS EXCEEDED BY NO MORE THAN ONE DAY .

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR FURTHER DETAILS OF THE PROCEDURE BEFORE THE COURT, THE COMMUNITY PROVISIONS IN QUESTION, THE ARGUMENTS OF THE PARTIES AND THE INFORMATION SUPPLIED TO THE COURT BY THE COMMISSION AND THE EUROPEAN PARLIAMENT UNDER ARTICLE 21 OF THE PROTOCOL ON THE STATUTE ON THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

6 BY VIRTUE OF THE FIRST INDENT OF ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS PROCEEDINGS MUST BE COMMENCED WITHIN THREE MONTHS AS FROM THE DATE OF NOTIFICATION OF THE DECISION ADOPTED IN RESPONSE TO THE COMPLAINT . IN THIS CASE THAT DATE IS 18 FEBRUARY 1985 .

7 THAT PROVISION IS SUPPLEMENTED BY ARTICLE 81 ( 1 ) OF THE RULES OF PROCEDURE WHICH PROVIDES THAT THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS AGAINST A MEASURE ADOPTED BY AN INSTITUTION IS TO RUN FROM THE DAY FOLLOWING THE RECEIPT BY THE PERSON CONCERNED OF NOTIFICATION OF THE MEASURE . THE LATTER PROVISION, AND ALSO THE GENERAL RULE LAID DOWN IN ARTICLE 80 ( 1 ) OF THE RULES OF PROCEDURE ACCORDING TO WHICH IN THE CALCULATION OF PROCEDURAL TIME-LIMITS THE DAY OF THE EVENT FROM WHICH THE PERIOD IS TO RUN IS TO BE EXCLUDED, ARE DESIGNED TO ENSURE THAT PARTIES ARE ABLE TO MAKE FULL USE OF THE PERIODS ALLOWED . REGARDLESS OF THE HOUR OF DAY WHEN THE MEASURE IN QUESTION IS NOTIFIED, TIME DOES NOT BEGIN TO RUN UNTIL THE END OF THE DAY OF NOTIFICATION .

8 WHERE, AS IN THE PRESENT CASE, THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS IS EXPRESSED IN CALENDAR MONTHS, THAT PERIOD THEREFORE EXPIRES AT THE END OF THE DAY WHICH, IN THE MONTH INDICATED BY THE TIME-LIMIT, BEARS THE SAME NUMBER AS THE DAY FROM WHICH TIME WAS SET RUNNING, THAT IS TO SAY THE DAY OF NOTIFICATION . IN VIEW OF THE EXTENSION OF TWO DAYS ON ACCOUNT OF DISTANCE TO WHICH THE APPLICANT WAS ENTITLED, THE PRESCRIBED PERIOD THUS EXPIRED ON 20 MAY 1985 . AN APPLICATION LODGED ON THAT DATE WOULD HAVE BEEN IN TIME BUT SINCE HIS APPLICATION WAS LODGED ON 21 MAY 1985 IT IS OUT OF TIME .

9 THAT IS THE SAME METHOD OF COMPUTATION AS WAS USED BY THE COURT, WITH RESPECT TO THE TIME-LIMIT FOR LODGING A COMPLAINT, IN THE JUDGMENTS REFERRED TO BY THE APPLICANT ( JUDGMENTS OF 26 NOVEMBER 1981 IN CASE 195/80 MICHEL V PARLIAMENT (( 1981 )) ECR 2861 AND OF 2 MAY 1985 IN CASE 38/84 J . K . V PARLIAMENT (( 1985 )) ECR 1267 ). IT SHOULD ALSO BE STATED THAT THAT METHOD IS IN CONFORMITY WITH THE METHOD APPLIED UNDER THE NATIONAL LAW OF THE MEMBER STATES .

10 THE PROVISIONS ON THE PERIOD OF TIME ALLOWED FOR PROCEEDINGS TO BE COMMENCED BY OFFICIALS THUS PROVIDE A FULL SET OF RULES ENABLING NOT ONLY THE START BUT ALSO THE EXPIRY OF THE PERIOD TO BE DETERMINED, AND THEREFORE THE QUESTION OF THE APPLICATION BY ANALOGY OF REGULATION NO 1182/71 DOES NOT ARISE . IT IS NOT THEREFORE NECESSARY FOR THE COURT TO CONSIDER WHETHER THE APPLICANT' S CALCULATION, WHICH AFFORDS HIM A PERIOD OF THREE MONTHS AND ONE DAY, IS IN FACT IN CONFORMITY WITH THE PROVISIONS OF THAT REGULATION .

11 AS REGARDS THE APPLICANT' S ARGUMENT IN SUPPORT OF HIS ALTERNATIVE CLAIM, IT IS APPROPRIATE TO REFER TO THE WELL-ESTABLISHED CASE-LAW OF THE COURT ACCORDING TO WHICH THE STRICT APPLICATION OF COMMUNITY RULES ON PROCEDURAL TIME-LIMITS SERVES THE REQUIREMENT OF LEGAL CERTAINTY AND THE NEED TO AVOID ANY DISCRIMINATION OR ARBITRARY TREATMENT IN THE ADMINISTRATION OF JUSTICE ( SEE IN PARTICULAR THE JUDGMENT OF 26 NOVEMBER 1985 IN CASE 42/85 COCKERILL-SAMBRE SA V COMMISSION (( 1985 )) ECR 3749 ). THE APPLICANT HAS NOT PROVED OR EVEN PLEADED THE EXISTENCE OF UNFORESEEABLE CIRCUMSTANCES OR OF FORCE MAJEURE WHICH WOULD ENABLE THE COURT TO SET ASIDE THE TIME-LIMIT PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 42 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC .

12 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION LODGED AT THE COURT REGISTRY ON 21 MAY 1985 WAS OUT OF TIME AND THAT THE APPLICATION MUST 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

hereby :

( 1 ) Dismisses the application as inadmissible;

( 2 ) Orders the parties to bear their own costs .