61965CJ0005_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 5/65
ANDRE SAUDRAY, AN OFFICIAL OF THE EUROPEAN ECONOMIC COMMUNITY, RESIDING AT OVERIJSE ( BELGIUM ), ASSISTED BY MARCEL GREGOIRE, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF THE REFUSAL OF THE DEFENDANT ON 29 OCTOBER 1964 TO CLASSIFY THE APPLICANT IN GRADE A6 WITH EFFECT FROM 1 JANUARY 1962,
Grounds
P.996
I - ADMISSIBILITY
THE DEFENDANT RAISES AN OBJECTION OF INADMISSIBILITY ON THE GROUND THAT THE APPLICATION WAS NOT MADE WITHIN THE PRESCRIBED PERIOD .
1 . THE APPLICATION IS DIRECTED AGAINST THE REFUSAL OF THE PRESIDENT OF THE COMMISSION ON 29 OCTOBER 1964 OF THE COMPLAINT MADE ON THE PREVIOUS 3 AUGUST FOR THE RECLASSIFICATION OF THE APPLICANT IN GRADE A6 AS FROM 1 JANUARY 1962 .
THIS REFUSAL MAY BE REGARDED AS CONFIRMATION OF THE DECISION OF 12 DECEMBER 1962, IN SO FAR AS IT APPOINTED THE APPLICANT TO GRADE B1 .
IT IS TRUE THAT THE APPLICANT MADE NEITHER A COMPLAINT THROUGH OFFICIAL CHANNELS NOR AN APPEAL TO THE COURT AGAINST THIS DECISION WITHIN THE PERIOD LAID DOWN BY ARTICLE 91 OF THE STAFF REGULATIONS .
NEVERTHELESS, THE APPLICANT CITES THE JUDGMENTS OF THE COURT IN JOINED CASES 20 AND 21/63 AND IN JOINED CASES 79 AND 82/63 (( 1964 ) ECR 213 ET SEQ ., 511 ET SEQ .), INFERRING THEREFROM THAT HE COULD HAVE MADE AN APPEAL AGAINST THE ABOVEMENTIONED DECISION .
IN FACT, HE CLAIMS THAT THE COURT CONSIDERED ON THAT OCCASION THAT THE DECISION CONCERNING INTEGRATION MUST BE DISSOCIATED FROM THE RIGHT OF THE SERVANT TO HAVE HIS ADMINISTRATIVE POSITION REGULARIZED .
THE APPLICANT FAILS TO APPRECIATE THAT, AS THESE JUDGMENTS ACCEPTED IN RESPECT OF THE OFFICIALS CONCERNED, HE COULD AT THE TIME HAVE SUBMITTED A REQUEST TO THE DEFENDANT FOR SUCH REGULARIZATION AND COULD HAVE DISPUTED A REFUSAL BEFORE THE COURT .
2 . THE APPLICANT POINTS OUT THAT THE PUBLICATION BY THE DEFENDANT IN 1963 OF THE DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH BASIC POST - THE DEFINITIONS PROVIDED FOR BY ARTICLE 5(4 ) OF THE STAFF REGULATIONS - CONSTITUTED A NEW FACTOR CAPABLE OF CAUSING THE TIME IN WHICH TO BRING AN APPEAL AGAINST THE PREVIOUS CLASSIFICATION TO START TO RUN AFRESH .
P.997
ALTHOUGH THIS ARGUMENT IS CORRECT IN ITSELF, IT MUST HOWEVER BE STATED FURTHER THAT THE APPLICANT DID NOT DISPUTE THIS CLASSIFICATION EITHER WITHIN THE PERIOD LAID DOWN BY THE AFOREMENTIONED ARTICLE 91, DATING FROM THE SAID PUBLICATION .
IT IS TRUE THAT THE APPLICANT ALLEGES THAT, AS SOON AS THE DEFINITIONS IN QUESTION HAD ENABLED HIM TO DETERMINE THE GRADE TO WHICH HE BELIEVED HIMSELF TO BE ENTITLED, HE HAD ' INCREASED HIS ATTEMPTS TO OBTAIN THAT GRADE BY ALL THE MEANS OPEN TO HIM '.
NEVERTHELESS, THE FACT REMAINS THAT THE COMPLAINT OF 3 AUGUST 1964 WAS THE FIRST COMPLAINT AND THE ONLY ONE DEALING WITH HIS RETROACTIVE RECLASSIFICATION ON INTEGRATION .
THE APPROACHES WHICH HE MADE IN ORDER TO OBTAIN A HIGHER GRADE BY WAY OF PROMOTION OR OF COMPETITION CANNOT BE REGARDED AS SUCH A COMPLAINT, IN VIEW OF THE DIFFERENCES WHICH EXIST BETWEEN THESE TWO GROUPS OF REQUESTS IN RESPECT OF THEIR BASIS AND THEIR POSSIBLE EFFECTS .
3 . ACCORDING TO THE APPLICANT THE ABOVE - MENTIONED JUDGMENTS OF THE COURT ALSO CONSTITUTED NEW FACTORS .
THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE ARE THE PARTIES TO THE ACTION AND THOSE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED .
CONSEQUENTLY, SUCH A JUDGMENT CAN ONLY CONSTITUTE A NEW FACTOR AS REGARDS THOSE PERSONS .
IT IS TRUE THAT THE JUDGMENTS IN QUESTION ANNULLED DECISIONS OF THE COMMISSION OF THE EEC REFUSING TO REGULARIZE THE POSITION OF THE PERSONS CONCERNED IN ACCORDANCE WITH THE PRINCIPLE OF THE CORRESPONDENCE BETWEEN DUTIES AND GRADE LAID DOWN IN ANNEX I TO THE STAFF REGULATIONS .
AS THOSE DECISIONS ONLY APPLIED TO THE INDIVIDUAL POSITION OF EACH PERSON CONCERNED, THEY CANNOT DIRECTLY CONCERN THIRD PARTIES, SUCH AS THE APPLICANT .
IN THESE CIRCUMSTANCES, THE JUDGMENTS IN QUESTION CANNOT BE REGARDED, IN RESPECT OF THE APPLICANT, AS NEW FACTORS CAPABLE OF CAUSING THE PERIOD FOR LODGING AN APPEAL AGAINST THE DECISION CLASSIFYING HIM IN GRADE B1 TO START TO RUN AFRESH .
IT FOLLOWS FROM THE FOREGOING THAT THE PRESENT OBJECTION IS WELL FOUNDED AND THAT CONSEQUENTLY THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .
Decision on costs
THE APPLICANT HAS FAILED IN HIS APPLICATION .
CONSEQUENTLY, IN APPLICATION OF THE COMBINED PROVISIONS OF ARTICLES 69(2 ) AND 70 OF THE RULES OF PROCEDURE, HE MUST BEAR THE COSTS OF THE CASE, WITH THE EXCEPTION OF THOSE INCURRED BY THE DEFENDANT .
Endorsements
ON THOSE GROUNDS,
UPON READING 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 THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, ESPECIALLY ARTICLES 69 AND 70;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ECONOMIC COMMUNITY AND OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, ESPECIALLY ARTICLE 91;
Operative part
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS BEING INADMISSIBLE;
2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE CASE, WITH THE EXCEPTION OF THE COSTS INCURRED BY THE DEFENDANT .