61976J0005

1 . OFFICIALS - REQUEST THROUGH OFFICIAL CHANNELS - IMPLIED REJECTION - EXPRESS REJECTION WITHIN THE PERIOD FOR COMMENCING PROCEEDINGS - DATE - FRESH PERIOD - NOTIFICATION OF REJECTION - DELAY NOT TO BE TAKEN INTO ACCOUNT

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 91 ( 3 ), SECOND INDENT )

2 . OFFICIALS - APPLICATION TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - BELATED NOTIFICATION - PERIOD FOR COMMENCING PROCEEDINGS - CALCULATION

( STAFF REGULATIONS OF OFFICIALS , ARTICLES 90 AND 91 )

1 . AN EXPRESS DECISION REJECTING A COMPLAINT , ADOPTED WITHIN THE PERIOD FOR COMMENCING PROCEEDINGS AND AFTER THE IMPLIED DECISION REJECTING IT WITHIN THE MEANING OF THE SECOND INDENT OF ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS , MUST BE REGARDED AS ARISING AT THE DATE ON WHICH IT WAS ADOPTED BY THE COMPETENT AUTHORITY AND AS STARTING A NEW PERIOD TO BEGIN TO RUN WITHOUT ANY DELAY IN NOTIFICATION BEING TAKEN INTO ACCOUNT .

2 . IN THE EVENT OF THE BELATED NOTIFICATION ON AN ACT ADVERSELY AFFECTING AN OFFICIAL THE PERIOD FOR COMMENCING PROCEEDINGS MUST BE CALCULATED FROM THE DATE OF NOTIFICATION IF THE DELAY IS NOT ATTRIBUTABLE TO THE PERSON CONCERNED .

IN CASE 5/76

HEINZ GUNTHER JANSCH , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 23 RUE DES CIGALES , LUXEMBOURG , REPRESENTED BY MARCEL SLUSNY , ADVOCATE AT THE COUR D ' APPEL , BRUSSELS , 272 AVENUE BRUGMANN , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE AT THE HOME OF MR JANSCH ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER , MARIO CERVINO BATIMENT CFL , PLACE DE LA GARE ,

DEFENDANT ,

APPLICATION , AT THE PRESENT STAGE OF THE PROCEEDINGS , REGARDING THE ADMISSIBILITY OF THE APPLICATION LODGED BY THE APPLICANT FOR THE ANNULMENT OF THE ' PROCEDURES TO BE IMPLEMENTED PRIOR TO DECISIONS ON THE TRANSFER FROM CATEGORY B TO CATEGORY A OF OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES ' , OF THE DECISIONS TAKEN IN IMPLEMENTATION OF THESE PROCEDURES , AND , SO FAR AS NECESSARY , OF ARTICLE 92 OF THE STAFF REGULATIONS OF OFFICIALS ,

1 THE APPLICATION LODGED AT THE COURT REGISTRY ON 16 JANUARY 1976 SEEKS IN PARTICULAR THE ANNULMENT OF A DECISION OF THE COMMISSION OF 2 OCTOBER 1975 REJECTING A COMPLAINT BROUGHT BY THE APPLICANT ON 3 MARCH 1975 AND DIRECTED AGAINST THE ' PROCEDURES TO BE IMPLEMENTED PRIOR TO DECISIONS ON THE TRANSFER FROM CATEGORY B TO CATEGORY A OF OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES ' PUBLISHED IN THE STAFF COURIER ON 16 DECEMBER 1974 .

2 BY AN APPLICATION ON A PROCEDURAL ISSUE LODGED ON 20 FEBRUARY 1976 THE DEFENDANT RAISED UNDER ARTICLE 91 OF THE RULES OF PROCEDURE A PRELIMINARY OBJECTION OF INADMISSIBILITY ON THE GROUNDS OF THE ALLEGED LATENESS OF THE APPLICATION .

3 IN SUPPORT OF THIS PRELIMINARY OBJECTION THE DEFENDANT STATES IN THE FIRST PLACE THAT THE APPLICANT ' S COMPLAINT REGISTERED ON 6 MARCH 1975 WAS REJECTED BY THE REFUSAL IMPLIED BY THE ABSENCE OF A REPLY WITHIN THE FOUR MONTHS PRESCRIBED IN THE LAST SUBPARAGRAPH OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , THAT IS IN THE PRESENT CASE BEFORE 7 JULY 1975 , AND THIS IMPLIED DECISION OF REFUSAL SHOULD THEREFORE HAVE BEEN CONTESTED BY AN APPLICATION TO THE COURT BEFORE 7 OCTOBER 1975 UND THE SECOND INDENT OF ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS .

4 IT STATES THAT SINCE THE EXPRESS DECISION OF THE COMMISSION WAS NOT NOTIFIED TO THE APPLICANT UNTIL 16 OCTOBER 1975 , THAT IS AFTER THE EXPIRATION OF THE PERIOD FOR BRINGING AN APPEAL , IT WAS IMPOSSIBLE FOR IT TO HAVE ACTIVATED THE LAST SENTENCE OF THAT PROVISION , WHICH PROVIDES THAT ' WHERE A COMPLAINT IS REJECTED BY EXPRESS DECISION AFTER BEING REJECTED BY IMPLIED DECISION BUT BEFORE THE PERIOD FOR LODGING AN APPEAL HAS EXPIRED , THE PERIOD FOR LODGING THE APPEAL SHALL START TO RUN AFRESH ' .

5 HOWEVER A DECISION MUST BE REGARDED AS ARISING WITHIN THE MEANING OF THIS PROVISION AT THE DATE ON WHICH IT IS ADOPTED BY THE COMPETENT AUTHORITY .

6 THE LATTER , HAVING ADOPTED AN EXPRESS DECISION WITHIN THE PERIOD FOR BRINGING AN APPEAL , MUST EXCEPT A NEW PERIOD TO BEGIN TO RUN IN FAVOUR OF THE PERSON CONCERNED WITHOUT ANY DELAY IN NOTIFICATION BEING TAKEN INTO ACCOUNT .

7 IT IS PROPER THEREFORE TO CONCLUDE THAT IN THE PRESENT CASE THE EXPRESS DECISION OF THE COMMISSION OF 2 OCTOBER 1975 CAUSED A NEW PERIOD FOR BRINGING AN APPEAL TO BEGIN TO RUN .

8 THE PROBLEM THEN ARISES AS TO THE DATE FROM WHICH THIS PERIOD MUST BE CALCULATED .

9 IN THIS RESPECT THE DATE OF NOTIFICATION IS THE CRITERION IN ALL CASES WHERE AS IN THE PRESENT CASE THE DELAY IN NOTIFICATION IS NOT ATTRIBUTABLE TO THE PERSON CONCERNED .

10 ONLY THE NOTIFICATION ENABLES HIM TO HAVE EFFECTIVE KNOWLEDGE OF THE EXISTENCE OF THE DECISION AND THE GROUNDS BY WHICH THE ADMINISTRATION JUSTIFIES IT .

11 SINCE NOTIFICATION TOOK EFFECT IN THE PRESENT CASE ON 16 OCTOBER 1975 THE APPLICATION LODGED ON 16 JANUARY 1976 WAS BROUGHT WITHIN THE THREE MONTHS LAID DOWN IN ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS .

12 ACCORDINGLY THE PRELIMINARY OBJECTION OF INADMISSIBILITY MUST BE REJECTED .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DECLARES THE APPLICATION TO BE ADMISSIBLE ;

2 . ORDERS THE PROCEDURE TO CONTINUE WITH REGARD TO THE SUBSTANCE ;

3 . RESERVES THE COSTS .