61983J0227

OFFICIALS - APPEALS - PRIOR ADMINISTRATIVE COMPLAINT - TIME-LIMITS - MATTER OF PUBLIC POLICY - RIGHT OF ACTION DEFINITIVELY TIME-BARRED

( STAFF REGULATIONS , ARTS 90 AND 91 )

THE TIME-LIMITS PRESCRIBED IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS FOR THE LODGING OF COMPLAINTS AND APPEALS ARE A MATTER OF PUBLIC POLICY AND ARE NOT SUBJECT TO THE DISCRETION OF THE PARTIES OR THE COURT , SINCE THEY WERE LAID DOWN WITH A VIEW TO ENSURING CLARITY AND LEGAL CERTAINTY .

THE FACT THAT AN INSTITUTION , FOR REASONS RELATED TO ITS STAFF POLICY , DEALS WITH THE SUBSTANCE OF A REQUEST SUBMITTED OUT OF TIME AND THEREFORE INADMISSIBLE CANNOT HAVE THE EFFECT OF DEROGATING FROM THE SYSTEM OF MANDATORY TIME-LIMITS AND RE-ESTABLISHING A RIGHT OF ACTION WHICH IS DEFINITIVELY TIME-BARRED .

IN CASE 227/83

SOPHIE MOUSSIS , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY GEORGES VANDERSANDEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JANINE BIVER , 2 RUE GOETHE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , DIMITRIOS GOULOUSSIS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF A COMMISSION DECISION REFUSING TO ALTER THE GRADE TO WHICH THE APPLICANT WAS APPOINTED FOLLOWING A COMPETITION ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 6 OCTOBER 1983 , SOPHIE MOUSSIS , AN OFFICIAL IN GRADE A 5 AT THE COMMISSION OF THE EUROPEAN COMMUNITIES , SERVING AS A PRINCIPAL ADMINISTRATOR IN THE DIRECTORATE GENERAL FOR AGRICULTURE , BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 14 JULY 1983 REFUSING TO CLASSIFY HER IN GRADE A 4 .

2 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT FROM 1968 THE APPLICANT WORKED FOR THE COMMISSION AS AN EXPERT AND THAT SHE WAS ENGAGED AS A TEMPORARY SERVANT IN GRADE A 7 BY A DECISION OF 15 NOVEMBER 1971 . ON 1 MAY 1973 , AFTER COMPLETING HER PROBATIONARY PERIOD IN GRADE A 7 , SHE WAS APPOINTED AS AN ESTABLISHED OFFICIAL IN THAT GRADE . ON 1 JANUARY 1975 SHE WAS PROMOTED TO GRADE A 6 . IN 1981 SHE PASSED OPEN COMPETITION NO COM/A/337 , HELD TO RECRUIT OFFICIALS TO POSTS IN CAREER BRACKET A 5/A 4 , AND , BY A DECISION OF 8 JUNE 1982 , SHE OBTAINED AN APPOINTMENT AS A PRINCIPAL ADMINISTRATOR IN GRADE A 5 .

3 THE 1982 DECISION HAS NOT BEEN CONTESTED BY MRS MOUSSIS . HOWEVER , ON 11 JANUARY 1983 , SHE SUBMITTED A REQUEST TO THE ' ' GRADING COMMITTEE ' ' , SEEKING RECLASSIFICATION IN GRADE A 4 PURSUANT TO ARTICLE 3 OF THE DECISION OF 6 JUNE 1973 ENTITLED ' ' DECISION ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION UPON RECRUITMENT ' ' .

4 BY A MEMORANDUM DATED 20 JANUARY 1983 THE HEAD OF THE CAREERS DIVISION OF THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION INFORMED THE APPLICANT THAT THE DECISION OF 6 JUNE 1983 WAS ' ' INTENDED TO GOVERN THE GRADING POSSIBILITIES UPON RECRUITMENT CREATED BY ARTICLES 31 AND 32 OF THE STAFF REGULATIONS ' ' AND DREW HER ATTENTION TO THE FACT THAT , SINCE SHE WAS AN ESTABLISHED OFFICIAL BEFORE HER APPOINTMENT , HER CLASSIFICATION IN HER NEW GRADE HAD BEEN CALCULATED ON THE BASIS OF ARTICLE 46 OF THE STAFF REGULATIONS , DEALING WITH PROMOTIONS . IT WAS ALSO POINTED OUT IN THE SAME MEMORANDUM THAT THE APPLICANT HAD IMMEDIATELY BEEN APPOINTED AS AN OFFICIAL IN GRADE A 5 WITHOUT BEING REQUIRED TO SERVE A PROBATIONARY PERIOD .

5 ON 25 MARCH 1983 MRS MOUSSIS SUBMITTED A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS . SHE CONTENDED THAT , SINCE SHE HAD PASSED AN ' ' EXTERNAL ' ' COMPETITION , HER APPOINTMENT WAS TO BE REGARDED AS RECRUITMENT . ON THAT BASIS , SHE WAS ENTITLED TO BE TREATED IN ACCORDANCE WITH THE PROVISIONS OF THE DECISION OF 6 JUNE 1973 , ARTICLE 3 OF WHICH ALLOWED THE APPOINTING AUTHORITY TO TAKE ACCOUNT OF HER PREVIOUS PROFESSIONAL EXPERIENCE . SINCE SHE WAS ABLE TO PRODUCE EVIDENCE OF MORE THAN TWELVE YEARS ' RELEVANT PROFESSIONAL EXPERIENCE , INCLUDING ONE YEAR , NINE MONTHS AND SEVEN DAYS OF WORK IN HER COUNTRY OF ORIGIN AND TEN YEARS , SEVEN MONTHS AND SIXTEEN DAYS OF WORK IN THE SERVICE OF THE DIRECTORATE GENERAL FOR AGRICULTURE , SHE WAS ENTITLED TO BE APPOINTED TO GRADE A 4 IMMEDIATELY .

6 THAT COMPLAINT WAS REJECTED BY A COMMISSION DECISION OF 14 JULY 1983 . IN THAT DECISION THE COMMISSION ONCE AGAIN MADE IT CLEAR THAT THE APPLICANT HAD BEEN APPOINTED UNDER ARTICLE 46 OF THE STAFF REGULATIONS AND THAT HER APPOINTMENT COULD NOT THEREFORE BE REGARDED AS ' ' RECRUITMENT ' ' WITHIN THE MEANING OF THE DECISION OF 6 JUNE 1973 .

7 THE APPLICANT ASKS THE COURT TO :

( A ) ANNUL THE DECISION REJECTING HER COMPLAINT IN SO FAR AS IT CONFIRMS HER CLASSIFICATION IN GRADE A 5 ; AND

( B)ORDER THE COMMISSION TO PLACE THE DEFENDANT IN THE CORRECT GRADE IN ACCORDANCE WITH THE CRITERIA CONTAINED IN THE DECISION OF 6 JUNE 1973 .

8 THE COMMISSION OBJECTS IN THE FIRST PLACE TO THE ADMISSIBILITY OF THE APPLICATION . IT STATES THAT THE ACT ADVERSELY AFFECTING THE APPLICANT IS THE APPOINTING DECISION OF 8 JUNE 1982 WHICH WAS NOT CONTESTED WITHIN THE PRESCRIBED PERIOD . THE COMMISSION ' S DECISION ON A COMPLAINT SUBMITTED OUT OF TIME DOES NOT CAUSE TIME TO START RUNNING AGAIN . THE COMMISSION ' S POLICY ON THIS MATTER IS TO CONSIDER OFFICIALS ' COMPLAINTS , EVEN IF SUBMITTED OUT OF TIME , AND TO GIVE A REASONED REPLY TO THEM IN ORDER TO MAINTAIN GOOD RELATIONS WITH ITS STAFF . HOWEVER , SUCH A REPLY DOES NOT CONSTITUTE A DECISION AGAINST WHICH AN APPEAL CAN BE BROUGHT .

9 IN ANSWER TO THAT OBJECTION OF INADMISSIBILITY THE APPLICANT CONTENDS THAT SHE EXERCISED THE RIGHT GRANTED TO ALL OFFICIALS BY ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS WHICH PROVIDES THAT ' ' ANY PERSON TO WHOM THE STAFF REGULATIONS APPLY MAY SUBMIT TO THE APPOINTING AUTHORITY A REQUEST THAT IT TAKE A DECISION RELATING TO HIM ' ' . IN HER CASE THE REQUEST WAS FOR THE ADJUSTMENT OF THE GRADE INTO WHICH SHE HAD BEEN PLACED BY THE APPOINTING DECISION OF 8 JUNE 1982 , ADOPTED AT THE END OF OPEN COMPETITION NO COM/A/337 . THE APPLICANT STATES THAT HER ACTION IS DIRECTED AGAINST THE COMMISSION ' S REJECTION OF THAT REQUEST , GIVEN THAT IT CONFIRMED THE DECISION OF 8 JUNE 1982 CLASSIFYING HER IN GRADE A 5 .

10 THE APPLICANT CRITICIZES THE COMMISSION FOR HAVING RAISED THE ISSUE OF ADMISSIBILITY FOR THE FIRST TIME IN ITS DEFENCE AND FOR NOT HAVING POINTED , DURING THE ADMINISTRATIVE PROCEDURE , TO ANY PROCEDURAL IRREGULARITY ON HER PART .

11 THE ACT ADVERSELY AFFECTING THE APPLICANT IN THIS CASE FOR THE PURPOSES OF ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS , WHICH DEFINES THE JURISDICTION OF THE COURT IN APPEALS BY OFFICIALS , IS THE COMMISSION ' S DECISION OF 8 JUNE 1982 APPOINTING HER TO GRADE A 5 . IT IS NOT DISPUTED THAT THAT DECISION WAS NOT CONTESTED WITHIN THE PRESCRIBED PERIOD .

12 IT THUS APPEARS THAT THE ' ' REQUEST ' ' WHICH THE APPLICANT ADDRESSED TO THE GRADING COMMITTEE ON 11 JANUARY 1983 HAD NO OTHER PURPOSE THAN TO CALL IN QUESTION AN ADMINISTRATIVE DECISION WHICH WAS NO LONGER OPEN TO CHALLENGE AFTER THE EXPIRY OF THE PERIOD FOR APPEALING AGAINST IT . THERE CAN BE NO QUESTION OF AN OFFICIAL ' S BEING ABLE , BY SO EXERCISING THE RIGHT CONFERRED ON HIM BY ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS , TO UNDERMINE THE TIME-LIMITS PRESCRIBED IN ARTICLES 90 AND 91 FOR THE LODGING OF COMPLAINTS AND APPEALS . THOSE TIME-LIMITS ARE A MATTER OF PUBLIC POLICY AND ARE NOT SUBJECT TO THE DISCRETION OF THE PARTIES OR THE COURT , SINCE THEY WERE LAID DOWN WITH A VIEW TO ENSURING CLARITY AND LEGAL CERTAINTY ( SEE THE JUDGMENTS OF 12 . 12 . 1967 IN CASE 4/67 , MULLER ( NEE COLLIGNON ) V COMMISSION , ( 1967 ) ECR 365 , OF 7 . 7 . 1971 IN CASE 79/70 , MULLERS V ECONOMIC AND SOCIAL COMMITTEE , ( 1971 ) ECR 689 , OF 5 . 6 . 1980 IN CASE 108/79 , BELFIORE V COMMISSION , ( 1980 ) ECR 1769 AND OF 19 . 2 . 1981 IN JOINED CASES 122 AND 123/79 , SCHIAVO V COUNCIL , ( 1981 ) ECR 473 ).

13 THE FACT THAT THE COMMISSION , FOR REASONS RELATED TO ITS STAFF POLICY , DEALS WITH THE SUBSTANCE OF A REQUEST , EVEN THOUGH IT IS INADMISSIBLE , CANNOT HAVE THE EFFECT OF DEROGATING FROM THE SYSTEM OF MANDATORY TIME-LIMITS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS AND RE-ESTABLISHING A RIGHT OF ACTION WHICH IS DEFINITIVELY TIME-BARRED .

14 CONSEQUENTLY , THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .

COSTS

15 UNDER THE TERMS OF 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 COMMENCED BY OFFICIALS , WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) REGARDING COSTS WHICH THE COURT CONSIDERS TO HAVE BEEN UNREASONABLY OR VEXATIOUSLY CAUSED .

16 THE COURT CONSIDERS THAT ARTICLE 70 SHOULD NOT BE APPLIED IN THE APPLICANT ' S CASE . IT IS CLEAR FROM THE FOREGOING THAT , IN LODGING A REQUEST WHICH WAS MANIFESTLY INADMISSIBLE HAVING REGARD TO THE SYSTEM OF COMPLAINTS AND APPEALS GOVERNED BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS , SHE CAUSED LITIGATION TO ENSUE WHICH WAS FUTILE AND CONSTITUTED A BURDEN FOR THE COMMISSION ' S ADMINISTRATION .

17 THE APPLICANT MUST THEREFORE BE ORDERED TO PAY THE WHOLE OF THE COSTS OF THESE PROCEEDINGS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .