61969J0024

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1 . OFFICIALS - APPLICATIONS - TIME-LIMITS - NATURE - EXTENSION - NOT PERMISSIBLE

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 91 )

2 . OFFICIALS - APPLICATIONS - FAILURE TO ACT ON THE PART OF THE ADMINISTRATION - CONCEPT

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 91 )

3 . OFFICIALS - APPLICATIONS - IMPLIED REJECTION - EXPIRATION OF PERIOD FOR BRINGING APPLICATION - EXPRESS REJECTION - ABSENCE OF NEW FACTOR - CONFIRMATORY NATURE - NO ACT ADVERSELY AFFECTING THE OFFICIAL

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 91 )

1 . THE TWO PERIODS MENTIONED IN ARTICLE 91 OF THE STAFF REGULATIONS ARE INTENDED TO ENSURE WITHIN THE COMMUNITY INSTITUTIONS THE LEGAL CERTAINTY INDISPENSABLE TO THEIR PROPER FUNCTIONING .

IT IS NOT THEREFORE FOR THE PARTIES CONCERNED TO EXTEND THEM AT THEIR PLEASURE .

2 . A NOTICE TO THE APPLICANT THAT HIS COMPLAINT IS UNDER CONSIDERATION CANNOT OF ITSELF HAVE ANY LEGAL EFFECT AND CANNOT BE CONSIDERED AS A DECISION WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS .

3 . THE EXPRESS REJECTION OF A REQUEST OR COMPLAINT, AFTER EXPIRY OF THE PERIOD FOR LODGING AN APPLICATION ON THE GROUND OF ITS IMPLIED REJECTION, WHICH CONTAINS NO NEW FACTOR RELATING TO THE POSITION IN LAW OR IN FACT EXISTING AT THE TIME OF REJECTION IS A PURELY CONFIRMATORY MEASURE AND IS NOT CAPABLE OF ADVERSELY AFFECTING AN OFFICIAL .

IN CASE 24/69

THEO NEBE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 65 RUE SOLLEVELD, BRUSSELS, REPRESENTED BY ALEX BONN, ADVOCATE OF LUXEMBOURG, AND RESIDING THERE AT 22, COTE D' EICH, APPLICANT,

V

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

APPLICATION FOR THE ANNULMENT OF :

( A ) THE DECISION OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY OF 23 MAY 1966 APPOINTING THE APPLICANT TO A POST IN GRADE A 5, IN SO FAR AS IT LAYS DOWN 1 MAY 1966 AS THE DATE ON WHICH IT IS TO TAKE EFFECT;

( B ) THE DECISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 14 MARCH 1969 REJECTING THE APPLICANT' S COMPLAINT BASED ON ARTICLE 90 OF THE STAFF REGULATIONS .

1 THE APPLICATION, REGISTERED AT THE COURT ON 5 JUNE 1969, IS FIRST FOR ANNULMENT OF THE DECISION OF THE COMMISSION OF 23 MAY 1966 TO THE EXTENT TO WHICH, IN FIXING 1 MAY 1966 AS THE DATE ON WHICH THE PROMOTION OF THE APPLICANT TO GRADE A 5 TAKES EFFECT, THIS DECISION REFUSES HIM THE BENEFIT OF RETROACTIVE TREATMENT AS FROM 1 NOVEMBER 1964, TO WHICH HE CLAIMS TO BE ENTITLED .

SECONDLY, THE APPLICATION IS FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 14 MARCH 1969 REJECTING THE APPLICANT' S CLAIM OF 3 AUGUST 1966 UNDER ARTICLE 90 OF THE STAFF REGULATIONS .

2 THE APPLICANT WHO CLAIMED ACTUALLY TO HAVE PERFORMED HIS DUTIES SINCE THE BEGINNING OF THE MONTH OF FEBRUARY 1964, IN THE GRADE A 5 POST TO WHICH HE WAS SUBSEQUENTLY APPOINTED, SOUGHT BY HIS COMPLAINT TO OBTAIN A MODIFICATION OF THE DECISION OF 23 MAY 1966 WITH A VIEW TO ITS TAKING EFFECT AS FROM 1 NOVEMBER 1964, A DATE ON WHICH HE SATISFIED THE MINIMUM SENIORITY IN GRADE A 6 REQUIRED FOR PROMOTION .

HIS REQUEST WAS FURTHER FOR THE GRANT FOR THE PERIOD FROM 1 MAY 1964 UNTIL THE DATE WHEN HIS APPOINTMENT TOOK EFFECT, OF THE TEMPORARY DIFFERENTIAL ALLOWANCE PROVIDED FOR BY ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS .

THE DEFENDANT NOTIFIED HIM ON 24 AUGUST 1966 THAT " A DETAILED INVESTIGATION OF THE MATTER WAS CURRENTLY BEING UNDERTAKEN " AND THAT A REPLY WOULD BE GIVEN AS SOON AS " A DEFINITE CONCLUSION " HAD BEEN REACHED .

AFTER A REMINDER ADDRESSED TO IT ON 2 OCTOBER 1968, THE COMMISSION REJECTED THE COMPLAINT AND THE APPLICANT' S REQUEST ON 14 MARCH 1969, THAT IS TO SAY AFTER MORE THAN THREE YEARS .

3 BY REASON OF THE PERIODS WHICH HAVE ELAPSED IT IS NECESSARY TO EXAMINE WHETHER THE APPEAL MUST NOT BE REGARDED AS OUT OF TIME .

4 UNDER ARTICLE 91 OF THE STAFF REGULATIONS, FAILURE ON THE PART OF THE COMPETENT AUTHORITY TO GIVE A DECISION IN REPLY TO A REQUEST OR COMPLAINT MUST AT THE EXPIRATION OF A PERIOD OF TWO MONTHS BE REGARDED AS AN IMPLIED DECISION REJECTING THE REQUEST OR COMPLAINT AND SUCH DECISION MAY BE CONTESTED WITHIN A PERIOD OF TWO MONTHS .

5 THE TWO COMBINED PERIODS UNDER ARTICLE 91 OF THE STAFF REGULATIONS ARE INTENDED TO ENSURE WITHIN THE COMMUNITY INSTITUTIONS THE LEGAL CERTAINTY INDISPENSABLE TO THEIR PROPER FUNCTIONING .

THEY TAKE INTO ACCOUNT INTER ALIA THE FACT THAT IN AN ADMINISTRATION DECISIONS RELATING TO THE SITUATION OF A PARTICULAR MEMBER OF THE STAFF MAY FREQUENTLY AFFECT THE POSITION OF OTHER OFFICIALS . IT IS NOT THEREFORE FOR THE PARTIES MOST IMMEDIATELY CONCERNED TO PROLONG THESE PERIODS AT THEIR PLEASURE .

6 THE LETTER OF 24 AUGUST 1966 DOES NOT CONSTITUTE A DECISION IN REPLY TO THE APPLICANT' S COMPLAINT . IT CANNOT MOREOVER, OF ITSELF, HAVE ANY OTHER LEGAL EFFECT SINCE IT HAS THE SOLE PURPOSE OF INTIMATING THE CARRYING OUT BY THE COMMISSION OF AN OBLIGATION ALREADY PROVIDED FOR, AS IN ARTICLE 91 OF THE STAFF REGULATIONS .

7 IT FOLLOWS THAT IF AT THE EXPIRATION OF THE PERIOD OF TWO MONTHS THE EXAMINATION OF WHICH THE APPLICANT HAD BEEN INFORMED HAD NOT LED TO AN EXPRESS DECISION, THE COMPLAINT MUST BE REGARDED AS REJECTED BY IMPLICATION .

THE APPEAL MUST ACCORDINGLY BE CONSIDERED AS OUT OF TIME AND THEREFORE INADMISSIBLE TO THE EXTENT TO WHICH IT IS DIRECTED AGAINST THE DECISION OF 23 MAY 1966 AND AGAINST THE IMPLIED REJECTION .

8 AS REGARDS THE EXPRESS DECISION OF REJECTION CONTAINED IN THE LETTER OF 14 MARCH 1969, WHILST THIS LETTER SETS OUT THE GROUNDS FOR ADHERING TO THE PREVIOUS DECISION, IT NEVERTHELESS CONTAINS NO NEW FACTOR RELATING TO THE POSITION IN LAW OR IN FACT EXISTING AT THE TIME OF THE IMPLIED REJECTION OF THE ORIGINAL DECISION .

ACCORDINGLY IT AMOUNTS TO A MEASURE LIMITED TO CONFIRMING THE PREVIOUS MEASURE AND FOR THAT REASON NOT CAPABLE OF ADVERSELY AFFECTING THE PERSON CONCERNED .

9 THE APPLICANT HAS FAILED IN HIS APPLICATION .

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

NEVERTHELESS UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN ACTIONS BY SERVANTS OF THE COMMUNITIES THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE COURT ( FIRST CHAMBER )

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .