61963J0069

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1 . OFFICIALS - APPEALS RELATING TO DECISIONS PRIOR TO THE PUBLICATION OF THE REGULATIONS - TIME-LIMITS

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ARTICLES 91 AND 102 )

2 . OFFICIALS - CONTRACT OF EMPLOYMENT CONCLUDED BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS - APPEAL RELATING TO THE INTERPRETATION OF SUCH CONTRACTS - APPLICABILITY OF THE STAFF REGULATIONS AFTER ESTABLISHMENT

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ARTICLE 91 )

3 . OFFICIALS - EMPLOYMENT ON A CONTRACTUAL BASIS - LEGAL SYSTEM

1 . ARTICLE 91, IN SO FAR AS IT LAYS DOWN TIME-LIMITS FOR THE FILING OF APPEALS, APPLIES TO PREVIOUS DECISIONS ONLY FROM THE DATE OF ITS PUBLICATION .

THIS RULE APPLIES IN PARTICULAR TO DISPUTES CONCERNING THE APPLICATION OF ARTICLE 102 OF THE STAFF REGULATIONS, WHICH LAYS DOWN TRANSITIONAL PROVISIONS TO ENABLE THE STAFF REGULATIONS TO BE APPLIED TO SERVANTS WHO ARE ALREADY EMPLOYED . THESE PROVISIONS ARE IN ADDITION TO THE RULES PRESCRIBED BY THE STAFF REGULATIONS FOR THE RECRUITMENT OF OFFICIALS .

2 . HOWEVER, WHERE THERE IS A DISPUTE WHICH CONCERNS THE INTERPRETATION OF A CONTRACT CONCLUDED DURING THE PERIOD BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, THE RULES OF THE REGULATIONS, AND ESPECIALLY THOSE OF ARTICLE 91, CANNOT BE APPLIED BEFORE ESTABLISHMENT HAS BEEN DULY GRANTED .

3 . IT IS GENERALLY ACCEPTED THAT PUBLIC SERVANTS EMPLOYED ON A CONTRACTUAL BASIS ARE SUBJECT TO THE APPLICATION OF REGULATIONS RELATING TO THE FUNCTIONING OF THE SERVICE AND THAT THESE REGULATIONS APPLY TO SERVANTS TAKING UP THEIR DUTIES .

IN CASE 69/63

ANNE-MARIE CAPITAINE, THE WIFE OF GERARD MARCILLAT, A SECRETARY AT THE JOINT NUCLEAR RESEARCH CENTRE AT ISPRA, RESIDING AT LAVENO ( ITALY ), ASSISTED BY ERNEST ARENDT AND JEAN WELTER, ADVOCATES OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN, APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, JEAN-PIERRE DELAHOUSSE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR THE REVERSAL OF THE DECISIONS WITHDRAWING THE SEPARATION ALLOWANCE FOLLOWING THE APPLICANT'S MARRIAGE AND FOR AN ORDER FOR THE DEFENDANT TO PAY THE ARREARS FROM THE DATE OF SUCH WITHDRAWAL;

I - AS TO ADMISSIBILITY

THE DEFENDANT ALLEGES THAT, IN RESPECT OF THE DECISION OF 14 JUNE 1961 WITHDRAWING THE GRANT OF THE SEPARATION ALLOWANCE AT ISSUE, THE TIME-LIMITS PRESCRIBED IN ARTICLE 91 OF THE STAFF REGULATIONS BEGAN TO RUN FROM THE PUBLICATION OF THE STAFF REGULATIONS ( 14 JUNE 1962 ) AND HAD THUS EXPIRED BY THE TIME THE APPLICATION WAS MADE ( 22 JUNE 1963 ); THE SUBSEQUENT DECISIONS, WHICH ARE ALSO DEALT WITH IN THE APPLICATION CANNOT BE TAKEN INTO ACCOUNT IN CALCULATING THE TIME - LIMITS BECAUSE THEY MERELY CONFIRM THE FIRST DECISION .

THE PRELIMINARY OBJECTION OF INADMISSIBILITY RAISED BY THE DEFENDANT CANNOT BE ACCEPTED .

ARTICLE 91, IN SO FAR AS IT LAYS DOWN TIME-LIMITS FOR THE FILING OF APPEALS, APPLIES TO PREVIOUS DECISIONS ONLY FROM THE DATE OF ITS PUBLICATION .

THIS RULE APPLIES IN PARTICULAR TO DISPUTES CONCERNING THE APPLICATION OF ARTICLE 102 OF THE STAFF REGULATIONS, WHICH LAYS DOWN TRANSITIONAL PROVISIONS TO ENABLE THE STAFF REGULATIONS TO BE APPLIED TO SERVANTS WHO ARE ALREADY EMPLOYED . THESE PROVISIONS ARE IN ADDITION TO THE RULES PRESCRIBED BY THE STAFF REGULATIONS FOR THE RECRUITMENT OF OFFICIALS .

HOWEVER, WHERE THERE IS A DISPUTE WHICH, AS IN THIS CASE, CONCERNS THE INTERPRETATION OF A CONTRACT CONCLUDED DURING THE PERIOD BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, THE RULES OF SUCH REGULATIONS, AND ESPECIALLY THOSE OF ARTICLE 91, CANNOT BE APPLIED BEFORE ESTABLISHMENT HAS BEEN DULY GRANTED .

IN FACT, IF THE IMMEDIATE APPLICABILITY OF THE NEW STAFF REGULATIONS TO THESE MATTERS WERE TO BE ACCEPTED, THIS WOULD AMOUNT TO PREJUDGING THE DECISION TO ESTABLISH WHICH, APART FROM THE CASE OF OFFICIALS HAVING BENEFITED FROM ESTABLISHMENT GRANTED UNDER THE RULES OF THE OLD STAFF REGULATIONS OF OFFICIALS OF THE ECSC, IS ONLY GRANTED UNDER THE CONDITIONS PRESCRIBED BY ARTICLES 102 ET SEQ . OF THE STAFF REGULATIONS OF THE EEC AND OF THE EAEC .

THE APPLICANT POINTED OUT DURING THE WRITTEN PROCEDURE THAT SHE HAD BEEN ESTABLISHED ON 6 FEBRUARY 1963 .

AS THIS CLAIM HAS NOT BEEN CONTRADICTED BY THE DEFENDANT ONE CAN INFER FROM IT THAT THE TIME-LIMITS FOR APPEAL AGAINST THE DECISION OF 14 JUNE 1961 BEGAN TO RUN, IN RESPECT OF THE APPLICANT, FROM 6 FEBRUARY 1963 .

ON 22 FEBRUARY 1963 THE APPLICANT SENT TO THE ADMINISTRATION OF THE ISPRA CENTRE AN ADMINISTRATIVE COMPLAINT WHICH REFERRED EXPRESSLY TO HER PREVIOUS COMPLAINTS RELATING TO THE WITHDRAWAL OF THE SEPARATION ALLOWANCE .

SHE RECEIVED NO REPLY AND HER APPEAL OF 22 JUNE 1963 WAS LODGED EXACTLY 4 MONTHS AFTER THE ABOVE-MENTIONED ADMINISTRATIVE COMPLAINT .

UNDER THE TERMS OF ARTICLE 90 OF THE STAFF REGULATIONS ANY OFFICIAL MAY SUBMIT TO THE APPOINTING AUTHORITY OF HIS INSTITUTION A REQUEST OF COMPLAINT .

A PRELIMINARY ADMINISTRATIVE PROCEDURE IS HIGHLY DESIRABLE IN THE MATTER OF DISPUTES CONCERNING OFFICIALS, AS THIS ENABLES THE ADMINISTRATION TO CARRY OUT AN INTERNAL EXAMINATION OF REQUESTS AND THEREBY POSSIBLY TO AVOID LEGAL PROCEEDINGS .

MOREOVER, THE DICTATES OF FAIR PLAY REQUIRE THAT AN OFFICIAL SHOULD ATTEMPT TO OBTAIN AN AMICABLE SOLUTION OF HIS DISPUTE WITH HIS ADMINISTRATION BEFORE BRINGING A CASE TO THE COURT .

THE ESTABLISHMENT OF THE APPLICANT ON 6 FEBRUARY 1963 HAD THE EFFECT OF CAUSING THE TIME-LIMITS UNDER ARTICLE 91 TO BEGIN TO RUN IN RESPECT OF THE DECISION OF 14 JUNE 1961 .

THUS THE APPLICANT ACTED WITH BOTH DILIGENCE AND GOOD JUDGMENT IN LODGING AN ADMINISTRATIVE COMPLAINT AGAINST THE ABOVE-MENTIONED DECISION AS EARLY AS 22 FEBRUARY 1963 .

THEN, BECAUSE OF THE FAILURE OF THE DEFENDANT TO REPLY TO THIS ADMINISTRATIVE COMPLAINT WITHIN TWO MONTHS, THE TIME-LIMIT FOR APPEAL WAS EXTENDED TO 22 JUNE 1963, OR FOUR MONTHS AFTER THE LODGING OF THE ADMINISTRATIVE COMPLAINT .

THE QUESTION WHETHER THE EXPRESS OR IMPLIED DECISIONS REJECTING THE APPLICANT'S COMPLAINTS AGAINST THE DECISION OF 14 JUNE 1961 HAVE A PURELY CONFIRMATORY CHARACTER IS NOT RELEVANT TO THIS CASE .

IN SHORT, THE APPLICATION DIRECTED AGAINST THE WITHDRAWAL OF THE SEPARATION ALLOWANCE IS OBVIOUSLY AIMED AT THE EXPRESS DECISION OF 14 JUNE 1961 .

THE IMPLIED DECISION OF REFUSAL DATING FROM 22 APRIL 1963 IS ONLY RELEVANT FOR THE COMPUTATION OF THE TIME-LIMITS FOR THE APPEAL .

IN THIS CASE THERE ARE NO GROUNDS FOR THE COURT TO RAISE THE QUESTION OF ADMISSIBILITY OF ITS OWN MOTION .

AS THE APPEAL WAS LODGED WITHIN THE PRESCRIBED TIME-LIMITS IT IS ADMISSIBLE .

II - AS TO THE SUBSTANCE OF THE CASE

THE APPLICANT ALLEGES THAT HER CONTRACT OF ENGAGEMENT PROVIDES FOR A SEPARATION ALLOWANCE, SUBJECT ONLY TO ONE CONDITION RELATING TO THE DISTANCE BETWEEN HER RESIDENCE AND HER PLACE OF EMPLOYMENT .

IT IS GENERALLY ACCEPTED THAT PUBLIC SERVANTS EMPLOYED ON A CONTRACTUAL BASIS ARE SUBJECT TO THE APPLICATION OF REGULATIONS RELATING TO THE FUNCTIONING OF THE SERVICE AND THAT THESE REGULATIONS APPLY TO SERVANTS TAKING UP THEIR DUTIES .

THE CONDITIONS FOR THE GRANT AND WITHDRAWAL OF THE SEPARATION ALLOWANCE, AND ESPECIALLY ITS WITHDRAWAL WHERE THE SPOUSE OF THE SERVANT CONCERNED IS IN THE SERVICE OF THE COMMUNITY, FORM PART OF THE GENERAL RULES CONCERNING THE FUNCTIONING OF THE SERVICE .

THE APPLICANT'S CONTRACT CONTAINS NO TERM WHICH DEROGATES FROM THESE RULES .

THE PROVISION OF ARTICLE 9 ( C ) OF THE GENERAL STAFF REGULATIONS OF THE ECSC, WHICH LAYS DOWN A PRINCIPLE WHICH IS LOGICALLY AN INTEGRAL PART OF THE GENERAL RULES CONCERNING THE FUNCTIONING OF THE SERVICE, ESTABLISHES THAT WHEN A HUSBAND AND WIFE ARE EMPLOYED BY THE COMMUNITY THE SEPARATION ALLOWANCE IS ONLY PAYABLE TO THE SPOUSE WHOSE SALARY IS THE HIGHER .

THE RULES CONCERNING THE SYSTEM OF SALARIES, ALLOWANCES AND PENSIONS IN FORCE IN THE ECSC WERE EXPRESSLY MADE APPLICABLE TO SERVANTS EMPLOYED ON A CONTRACTUAL BASIS IN THE SERVICE OF THE COMMISSION OF THE EAEC .

IT CAN BE SEEN FROM THE COMMUNICATION PUBLISHED BY THE DEFENDANT IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 28 AUGUST 1959, P . 987, THAT ' IN THE ABSENCE OF ANY OTHER APPROPRIATE SCALE AND IN ORDER TO AVOID ANY DISCRIMINATION BETWEEN THE DIFFERENT CATEGORIES OF THE STAFF OF EURATOM, THE COMMISSION HAS APPLIED THE RULES IN USE WITH THE ECSC TO ALL ITS SERVANTS '.

THIS TEXT, WHICH IS REPORTED IN THE FORM OF A COMMENTARY TO THE BUDGET FOR THE YEAR 1959, REFERS EXPRESSLY TO ARTICLE 11, HEADING 112, OF THAT BUDGET, CONCERNING THE RESIDENCE AND SEPARATION ALLOWANCES .

BY THIS PUBLICATION IN THE OFFICIAL JOURNAL OF THE COMMUNITIES THOSE CONCERNED WERE ENABLED TO ACQUAINT THEMSELVES WITH THE SYSTEM IN FORCE IN THE ECSC ON THE QUESTION OF SEPARATION ALLOWANCES .

IN ADDITION, THE ALIGNMENT OF THE POSITION OF HOLDERS OF SO-CALLED BRUSSELS CONTRACTS WITH THAT OF OFFICIALS OF THE ECSC AS REGARDS THEIR FINANCIAL STATUS WAS WELL-KNOWN BY THE STAFF OF THE INSTITUTIONS CONCERNED .

IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE DECISION IMPUGNED CORRECTLY APPLIED THE PROVISIONS IN FORCE .

THE APPLICATION MUST BE DISMISSED AS UNFOUNDED .

THE APPLICANT HAS FAILED IN HER APPLICATION .

UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 69/63 AS UNFOUNDED;

2 . ORDERS THAT EACH OF THE PARTIES SHALL BEAR ITS OWN COSTS .