61965CJ0031_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 31/65
FULVIO FONZI, A SCIENTIFIC OFFICER AT THE EAEC COMMISSION, ASSISTED BY MARIO GIULIANO, ADVOCATE AT THE CORTE DI CASSAZIONE, ITALY, AND PROFESSOR IN THE FACULTY OF LAW OF THE UNIVERSITA DEGLI STUDI, MILAN, 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, ANTONIO MARCHINI-CAMIA, 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,
Subject of the case
APPLICATION FOR :
( A ) THE ANNULMENT OF THE DECISION CONTAINING THE PROMOTIONS FOR THE YEAR 1964, DATED 7 OCTOBER 1964, PUBLISHED BY BEING POSTED UP ON 9 OCTOBER 1964;
( B ) THE ANNULMENT OF THE DECISION OF 3 FEBRUARY 1965, NOTIFIED BY LETTER OF 16 FEBRUARY 1965, REJECTING THE APPLICANT'S APPEAL THROUGH OFFICIAL CHANNELS OF 10 DECEMBER 1964 AGAINST THE DECISION CONTAINING THE PROMOTIONS FOR THE YEAR 1964;
Grounds
P.518
I - ADMISSIBILITY
THE DEFENDANT ALLEGES THAT THE APPLICATIONS FOR ANNULMENT OF THE DECISIONS CONCERNING PROMOTION FROM GRADE A5 TO GRADE A4 NOTIFIED BY BEING POSTED UP ON 9 OCTOBER 1964, AND THE DECISION REJECTING THE APPEAL THROUGH OFFICIAL CHANNELS, NOTIFIED ON 17 FEBRUARY 1965, ARE INADMISSIBLE BECAUSE THEY ARE OUT OF TIME . APPLICATION 31/65 WAS NOT IN FACT LODGED UNTIL 28 MAY 1965 WHILST WHEREAS THE PERIOD OF THREE MONTHS FOR LODGING AN APPEAL PRESCRIBED BY ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS, EXTENDED BY TWO DAYS ON ACCOUNT OF DISTANCE, EXPIRED ON 19 MAY 1965 .
THE APPLICANT REPLIES THAT THE EXTENSION ON ACCOUNT OF DISTANCE APPLICABLE IN THIS CASE WAS TEN DAYS, NOT TWO, SO THAT THE PERIOD FOR LODGING AN APPEAL DID NOT EXPIRE UNTIL THE EVENING OF 28 MAY 1965, 27 MAY 1965 BEING A HOLIDAY . IN SUPPORT OF THIS INTERPRETATION HE FIRST CLAIMS, AS HE HAS ALREADY EXPLAINED IN CASE 28/65, THAT BECAUSE HE WAS BEING KEPT ON IN THE POST TO WHICH HE WAS APPOINTED UNDER THE STAFF REGULATIONS, HE SHOULD BE CONSIDERED AS RESIDENT AS ISPRA AND AS MERELY ON TEMPORARY MISSION TO BRUSSELS . HE GOES ON TO SAY, BASING HIS ARGUMENT ON ARTICLES 37 AND 58 OF THE RULES OF PROCEDURE, THAT IN CALCULATING THE EXTENSION OF TIME ON ACCOUNT OF DISTANCE THE COUNTRY TO BE REFERRED TO IS NOT THE ONE WHERE THE APPLICANT HAPPENS TO BE, BUT THE COUNTRY WHERE THE LAWYER ASSISTING HIM IS RESIDENT AND PRACTISING .
IT IS NOT DISPUTED THAT ON 17 FEBRUARY 1965, THE DATE FROM WHICH THE PERIOD ALLOWED FOR LODGING AN APPEAL BEGINS TO RUN, AND FOR THE WHOLE OF THAT TIME THE APPLICANT WAS IN FACT WORKING IN BRUSSELS AND NOT AT ISPRA .
CONSEQUENTLY, ACCORDING TO THE WORDING OF THE DECISION ON THE EXTENSION OF TIME-LIMITS ON ACCOUNT OF DISTANCE COMPRISING ANNEX II TO THE RULES OF PROCEDURE, THE APPLICANT WAS HABITUALLY RESIDENT IN BELGIUM BOTH ON 17 FEBRUARY 1965 AND DURING THE SUBSEQUENT MONTHS AND COULD NOT, THEREFORE, ENJOY MORE THAN TWO DAYS' EXTENSION ON ACCOUNT OF DISTANCE . MOREOVER THE RESULT OF THE EXPRESS WORDING IN THE SAID ANNEX II : ' PARTIES...HABITUALLY RESIDENT ' IS THAT WHAT IS TO BE CONSIDERED HERE IS THE HABITUAL PLACE OF RESIDENCE OF THE PARTIES, NOT OF THEIR LAWYERS .
THE APPEAL THROUGH OFFICIAL CHANNELS, LODGED WITHIN THE PERIOD PRESCRIBED FOR AN APPEAL TO THE COURT, HAS PRESERVED THE TIME-LIMIT UNDER THE STAFF REGULATIONS FOR MAKING AN APPEAL TO THE COURT . THE EXTENSION ON ACCOUNT OF DISTANCE IS DEPENDENT SOLELY ON THE FACTS, THAT IS TO SAY, ON WHERE THE APPLICANT HAS HIS PLACE OF RESIDENCE . ACCORDINGLY THE APPLICANT, BEING HABITUALLY RESIDENT IN BELGIUM, HAD THREE MONTHS AND TWO DAYS WITHIN WHICH TO BRING AN APPEAL TO THE COURT . SINCE THIS PERIOD EXPIRED ON 19 MAY 1965, THE APPLICATIONS FOR ANNULMENT LODGED ON 28 MAY 1965 ARE INADMISSIBLE BECAUSE THEY ARE OUT OF TIME .
Decision on costs
THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .
UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
HOWEVER, ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT IN ACTIONS BROUGHT BY COMMUNITY OFFICIALS COSTS INCURRED BY INSTITUTIONS SHALL BE BORNE BY THE LATTER .
Endorsements
ON THOSE GROUNDS,
UPON HEARING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO ARTICLE 152 OF THE TREATY ESTABLISHING THE EAEC;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EAEC;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ESPECIALLY ARTICLES 90 AND 91;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES;
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES APPLICATION 31/65 AS INADMISSIBLE .
2 . ORDERS EACH PARTY TO PAY ITS OWN COSTS .