61964CJ0052_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 52/64
FRED PFLOESCHNER, HEAD OF INTERPRETATION SECTION AT THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED AND ASSISTED BY FERNAND PROBST, ADVOCATE AT THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 26 AVENUE DE LA LIBERTE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, 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 THE CLASSIFICATION OF THE APPLICANT IN GRADE L/A4, STEP 5;
Grounds
P.986
ADMISSIBILITY
THE APPLICANT HAS REFERRED TO THE COURT THE FAILURE OF THE COMMISSION TO TAKE A DECISION ON HIS LETTERS OF 24 JULY AND 30 SEPTEMBER 1964 CONCERNING THE CLASSIFICATION AWARDED HIM BY DECISION OF 23 SEPTEMBER 1963 . THE DEFENDANT MAINTAINS THAT HIS APPLICATION WAS IN FACT AGAINST THE DECISION OF 23 SEPTEMBER 1963 AND THAT IT WAS THEREFORE INADMISSIBLE FOR BEING OUT OF TIME .
UNDER ARTICLE 91(2 ) OF THE STAFF REGULATIONS OF OFFICIALS APPEALS MUST BE FILED WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF NOTIFICATION TO THE PERSON CONCERNED OF THE DECISION IN DISPUTE .
A REQUEST OR COMPLAINT THROUGH OFFICIAL CHANNELS WHICH IS NOT MADE WITHIN THIS PERIOD CANNOT, UPON THE EXPIRY OF THIS PERIOD, ESCAPE BEING TIME-BARRED .
IN THIS INSTANCE THE DECISION OF 23 SEPTEMBER 1963 CLASSIFYING THE APPLICANT WAS NOTIFIED TO HIM BY 31 OCTOBER 1963 AT THE LATEST . HIS REQUEST OR COMPLAINT OF 24 JULY 1964 WAS THUS MADE AFTER THE EXPIRY OF THE PERIOD OF THREE MONTHS LAID DOWN IN ARTICLE 91(2 ) OF THE STAFF REGULATIONS .
THE FACT THAT THE APPLICANT WAS INFORMED THAT HIS REQUEST OR COMPLAINT WAS UNDER CONSIDERATION CANNOT CAUSE THIS PERIOD TO START TO RUN AFRESH . IN FACT, SUCH A TEMPORIZING REPLY AMOUNTS TO A FAILURE TO GIVE A DECISION WITHIN THE MEANING OF ARTICLE 91 . IT COULD NOT, THEREFORE, RE-OPEN THE PERIOD FOR BRINGING AN APPEAL TO THE COURT .
THE APPLICANT RELIES ON THE NEW FACTOR WHICH, HE MAINTAINS, IS CONSTITUTED BY THE JUDGMENT IN CASE 70/63 DELIVERED ON 7 JULY 1964 IN AN ACTION BETWEEN THE COURT AND ONE OF ITS SERVANTS . THE JUDGMENT ANNULLED AN INDIVIDUAL DECISION REGARDING THE CLASSIFICATION OF THAT SERVANT .
THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE TAKEN BY AN INSTITUTION ARE PARTIES TO THE ACTION AND THOSE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED . SUCH A JUDGMENT CAN ONLY CONSTITUTE A NEW FACTOR AND CAUSE THE PERIODS FOR BRINGING APPEALS TO RUN AFRESH AS REGARDS THESE PARTIES AND PERSONS .
AS THIS IS NOT THE CASE IN THIS INSTANCE THE APPLICATION IS INADMISSIBLE .
Decision on costs
THE APPLICANT HAS FAILED IN HIS APPLICATION .
UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
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 PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ECONOMIC COMMUNITY AND OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, ESPECIALLY ARTICLES 90 AND 91;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, ESPECIALLY ARTICLES 69 AND 70;
Operative part
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES APPLICATION NO 52/64 AS INADMISSIBLE;
2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE ACTION, APART FROM THOSE INCURRED BY THE DEFENDANT .