Judgment of the Court (Second Chamber) of 14 July 1981. - Maria Mascetti v Commission of the European Communities. - Official - Absense from duty - Criminal proceedings. - Case 145/80.



European Court reports 1981 Page 01975



Summary

Parties

Subject of the case

Grounds

Operative part



Keywords

OFFICIALS - APPLICATIONS - ACT ADVERSELY AFFECTING AN OFFICIAL - CRITERIA - STATEMENT OF THE GROUNDS ON WHICH THE ACT IS BASED

( STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 )

Summary

WITHIN THE FRAMEWORK OF A CONTINUING DISCUSSION AN OFFICIAL IS ENTITLED NOT TO REGARD AN EXCHANGE OF VIEWS AS A FOR- MAL DECISION ON THE PART OF THE ADMINISTRATION UNTIL HE RECEIVES THE FIRST LETTER FROM THE ADMINISTRATION STATING THE GROUNDS ON WHICH THAT DECISION IS BASED . ONLY AT THAT TIME DOES HE BECOME BOUND TO LODGE A COMPLAINT WITHIN THE PERIOD LAID DOWN BY THE STAFF REGULATIONS .

Parties

IN CASE 145/80

MARIA MASCETTI , AN OFFICIAL OF THE EUROPEAN COMMUNITIES , ASSISTED AND REPRESENTED BY C . RIBOLZI , ADVOCATE AT THE MILAN BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF V . BIEL , 18A , RUE DES GLACIS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY O . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY P . DE CATERINI , ADVOCATE AT THE ROME BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , M . CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS AND AN OBJECTION BY THE DEFENDANT THAT IT IS INADMISSIBLE ,

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 13 JUNE 1980 MISS MARIA MASCETTI , A TEMPORARY SERVANT AT THE ISPRA JOINT RESEARCH CENTRE ( JNRC ) BROUGHT AN ACTION SEEKING ON THE ONE HAND ANNULMENT OF THE DECISION OF THE COMMISSION REFUSING TO REGARD THE PERIOD OF ABSENCE OF THE APPLICANT BETWEEN DECEMBER 1974 AND NOVEMBER 1978 AS A PERIOD OF EMPLOYMENT FOR ALL PURPOSES AND ON THE OTHER HAND A DECLARATION THAT THE COMMISSION IS BOUND TO REINSTATE HER IN HER CAREER AND CONSEQUENTLY TO RESTORE HER FINANCIAL RIGHTS , THAT IS TO SAY , TO GIVE HER THE BENEFIT OF ALL THE TWO-YEARLY STEPS , SALARY AND INSURANCE CONTRIBUTIONS WHICH BECAME DUE DURING HER ABSENCE AND ALSO THE SHORTFALL OF HER SEVERANCE GRANT AS A MEMBER OF THE ESTABLISHMENT STAFF AND , FINALLY , NOT TO REDUCE HER PENSION RIGHTS IN ANY WAY ON THE GROUNDS OF HER ABSENCE .

2 THE COMMISSION HAVING RAISED AN OBJECTION OF INADMISSIBILITY THE COURT RESOLVED TO DECIDE ON THE ADMISSIBILITY OF THESE CLAIMS WITHOUT GOING INTO THE SUBSTANCE OF THE CASE .

3 THE ABSENCE OF THE APPLICANT , WHO WAS AT THAT TIME A MEMBER OF THE ESTABLISHMENT STAFF AT THE ISPRA JOINT RESEARCH CENTRE WAS DUE TO THE FACT THAT SHE LEFT ITALY TO EVADE EXECUTION OF A WARRANT ISSUED FOR HER ARREST IN CONNEXION WITH PROSECUTION FOR A POLITICAL OFFENCE . IN JANUARY 1975 THE COMMISSION , CONSIDERING THE APPLICANT ' S ABSENCE TO BE UNJUSTIFIED , SUSPENDED PAYMENT OF HER SALARY , RELYING ON ARTICLE 60 OF THE STAFF REGULATIONS OF OFFICIALS WHICH ARE APPLICABLE BY ANALOGY TO MEMBERS OF THE ESTABLISHMENT STAFF . NEVERTHELESS , IN MARCH 1977 , FOLLOWING A CHANGE IN THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , WHICH DISCONTINUED THE CLASSIFICATION OF MEMBER OF THE ESTABLISHMENT STAFF , A TEMPORARY SERVANT ' S CONTRACT WAS OFFERED TO THE APPLICANT , ASSIGNING HER TO CATEGORY C , GRADE 1 , STEP 7 , WITH EFFECT FROM 30 OCTOBER 1976 . THE APPLICANT ACCEPTED THAT OFFER BUT DIFFICULTIES WERE ENCOUNTERED REGARDING CONCLUSION OF THE CONTRACT WHICH WERE THE SUBJECT OF AN EXCHANGE OF CORRESPONDENCE WHICH EXTENDED INTO 1977 AND 1978 . THE APPLICANT STATED THAT SHE WAS NOT IN A POSITION TO ATTEND AT ISPRA FOR SIGNATURE OF THE CONTRACT ; AT THE SAME TIME SHE CLAIMED PAYMENT OF THE SUMS DUE TO HER BY REASON OF THE TERMINATION OF HER CONTRACT AS A MEMBER OF THE ESTABLISHMENT STAFF , AND ALSO PAYMENT OF ARREARS OF SALARY AND SOCIAL SECURITY CONTRIBUTIONS WHICH HAD FALLEN DUE SINCE HER SALARY WAS SUSPENDED . FOR ITS PART THE ADMINISTRATION NOTIFIED THE APPLICANT THAT THE CONTRACT COULD BE ENTERED INTO AS SOON AS SHE WAS IN A POSITION TO REPORT FOR WORK AND THAT THE AMOUNTS CLAIMED BY HER REMAINED SUSPENDED .

4 AFTER HER ACQUITTAL BY THE CORTE DI ASSISE , ROME , BY JUDGMENT OF 14 JULY 1978 , THE APPLICANT RESUMED WORK ON 6 NOVEMBER 1978 . ON 30 NOVEMBER 1978 SHE SIGNED A FIRST TEMPORARY SERVANT ' S CONTRACT WHICH ASSIGNED HER TO CATEGORY C , GRADE 1 , STEP 6 , WITH SENIORITY IN HER GRADE FROM 1 DECEMBER 1978 AND SENIORITY IN HER STEP FROM 1 SEPTEMBER 1977 . SHE OBJECTED TO THOSE TERMS AND THE ADMINISTRATION PREPARED A NEW CONTRACT . THAT CONTRACT , WHICH WAS SIGNED BY THE APPLICANT IN APRIL 1979 , BACK-DATED HER SENIORITY IN HER GRADE TO 30 OCTOBER 1976 AND SPECIFIED ASSIGNMENT TO STEP 7 , BUT ONLY AS FROM 1 NOVEMBER 1977 . ON 26 MAY 1979 THE APPLICANT OBJECTED IN WRITING ON THE LATTER POINT . BY A NOTE FROM THE ADMINISTRATION AND PERSONNEL DIVISION OF 11 JULY 1979 THE APPLICANT WAS INFORMED THAT THE COMPETENT AUTHORITIES AT THE HEAD OFFICE OF THE COMMISSION HAD BEEN APPROACHED FOR AN OPINION . FINALLY , BY LETTER OF 10 AUGUST 1979 THE ADMINISTRATION CONFIRMED SENIORITY IN STEP 7 AS FROM 1 NOVEMBER 1977 , MAKING REFERENCE TO THE OPINION FROM THE LEGAL DEPARTMENT ACCORDING TO WHICH SENIORITY IN STEP ACQUIRED AS AT 30 OCTOBER 1976 COULD ONLY START TO RUN AGAIN AS FROM THE EFFECTIVE RESUMPTION OF DUTY . A COPY OF THAT OPINION WAS SENT TO THE APPLICANT BY LETTER OF 2 OCTOBER 1979 .

5 ON 7 NOVEMBER 1979 THE APPLICANT SENT THE ADMINISTRATION A FURTHER LETTER WHICH CONTAINED ALL THE CLAIMS AT ISSUE . SINCE NO REPLY WAS GIVEN TO THAT NOTE , SHE BROUGHT THE PRESENT ACTION .

6 IT APPEARS FROM THE FOREGOING THAT IT IS APPROPRIATE TO DISTINGUISH , FOR AN ASSESSMENT OF THEIR ADMISSIBILITY , BETWEEN THE CLAIM RELATING TO SENIORITY IN THE STEP REFERRED TO IN THE LETTER OF 26 MAY AND THE OTHER CLAIMS WHICH WERE SUBMITTED FOR THE FIRST TIME WITHIN THE FRAMEWORK OF THESE PROCEEDINGS IN THE LETTER OF 7 NOVEMBER 1979 .

7 WITH REGARD TO THE FIRST CLAIM , THE COMMISSION CONTENDS IN THE FIRST PLACE THAT BY SIGNING THE SECOND CONTRACT OF EMPLOYMENT WITHOUT MAKING ANY OBJECTION OR RESERVATION THE APPLICANT ACQUIESCED IN ALL THE TERMS OF THE CONTRACT AND CONSEQUENTLY IS PRECLUDED FROM CONTESTING THEM SUBSEQUENTLY .

8 THAT VIEW CANNOT BE UPHELD IN THIS CASE , HAVING REGARD TO THE HISTORY OF THIS ACTION AND THE APPLICANT ' S VERY SPECIAL POSITION VIS-A-VIS THE ADMINISTRATION . WHEN SHE SIGNED THE FIRST CONTRACT THE APPLICANT , WHO HAD RESUMED HER WORK WITHOUT THE BENEFIT OF ANY CONTRACT WHATSOEVER , WAS EXTREMELY CONCERNED TO REGULARIZE HER SITUATION , EVEN THOUGH SHE DID NOT FIND THE CONDITIONS OF THE CONTRACT OFFERED WHOLLY SATISFACTORY . LIKEWISE , THE FACT CANNOT BE HELD AGAINST HER THAT SHE SIGNED THE SECOND CONTRACT WHICH , IN RELATION TO THE VERY POINT AT ISSUE , REPRESENTED A SIGNIFICANT IMPROVEMENT OVER THE FIRST ONE .

9 IN THE SECOND PLACE , THE COMMISSION ARGUES THAT SUBMISSION OF THE SECOND CONTRACT TO THE APPLICANT FOR SIGNATURE CONSTITUTED NOTIFICATION OF A FINAL DECISION ON THE PART OF THE ADMINISTRATION , WHICH HAD TAKEN INTO ACCOUNT HER OBJECTIONS TO THE FIRST CONTRACT . IT IS THEREFORE FROM THAT DATE THAT THE PRESCRIBED PERIOD FOR LODGMENT OF A COMPLAINT SHOULD BE RECKONED . EVEN IF THE LETTER OF 26 MAY 1979 WERE TO BE CLASSED AS A COMPLAINT , THE LEGAL ACTION COMMENCED ON 13 JUNE 1980 WAS OUT OF TIME . THE LETTER OF 10 AUGUST 1979 WAS EITHER A DECISION ON THAT COMPLAINT OR A MERE ACT OF CONFIRMATION WHICH CANNOT CAUSE THE PRESCRIBED PERIODS TO START TO RUN AGAIN .

10 THESE ARGUMENTS MUST ALSO BE REJECTED IN THIS CASE . THE TERMS OF THE TWO CONTRACTS RELATING TO THE APPLICANT ' S SENIORITY ARE TO BE VIEWED AGAINST THE BACKGROUND OF A CONTINUING DISCUSSION INITIATED BY THE FIRST OFFER OF A TEMPORARY SERVANT ' S CONTRACT IN MARCH 1977 AND FOLLOWED BY THE APPLICANT ' S LETTER OF 26 MAY 1979 AND ALSO BY THE ADMINISTRATION ' S NOTE OF 11 JULY 1979 WHICH NOTIFIED THE APPLICANT THAT AN OPINION WAS BEING SOUGHT FROM THE COMPETENT AUTHORITIES . NEITHER THAT NOTE NOR THE SUBSEQUENT LETTER OF 10 AUGUST 1979 GAVE ANY INDICATION WHATSOEVER THAT THE ADMINISTRATION HAD CLASSED THE APPLICANT ' S LETTER OF 26 MAY 1979 AS A COMPLAINT . IN THE CIRCUMSTANCES THE APPLICANT WAS ENTITLED TO REGARD THE LETTER OF 10 AUGUST 1979 , WHICH WAS THE FIRST TO GIVE ANY REASONS , AS THE ADMINISTRATION ' S FORMAL DECISION AGAINST WHICH AN OBJECTION OUGHT TO BE LODGED . IN THIS REGARD THE LETTER OF 7 NOVEMBER 1979 QUALIFIES AS A COMPLAINT . SINCE THAT COMPLAINT AND THE APPLICATION OF 13 JUNE 1980 WERE LODGED WITHIN THE PRESCRIBED PERIODS , THE APPLICATION IS ADMISSIBLE WITH REGARD TO THE CLAIM RELATING TO SENIORITY IN THE STEP .

11 WITH REGARD TO THE OTHER HEADS OF CLAIM REFERRING TO THE PAYMENT OF SALARY , PENSION RIGHTS , SOCIAL SECURITY CONTRIBUTIONS AND COMPENSATION FOR TERMINATION OF THE EMPLOYMENT CONTRACT AS A MEMBER OF THE ESTABLISHMENT STAFF , THE COMMISSION STRESSES THAT ALL THESE CLAIMS WERE DEALT WITH IN DECISIONS BY THE ADMINISTRATION DURING THE APPLICANT ' S ABSENCE AND THAT THE APPLICANT SUBMITTED NO COMPLAINT OR APPEAL AGAINST SUCH DECISIONS WITHIN THE PRESCRIBED PERIODS . THE APPLICANT STATES IN REPLY THAT SHE WAS UNABLE TO PROCEED WITH HER CLAIMS DURING HER ABSENCE FROM ITALY AND THAT HER SUBSEQUENT ACQUITTAL SHOULD BE REGARDED AS A SUPERVENING EVENT WHICH CHANGED HER SITUATION ENTIRELY .

12 IN THIS REGARD IT IS APPROPRIATE TO POINT OUT THAT , EVEN IF THE ACQUITTAL CONSTITUTED A SUPERVENING EVENT CAPABLE OF CAUSING THE PRESCRIBED PERIODS TO START TO RUN AFRESH AND THE APPLICANT WERE THUS ENTITLED TO ASK THE APPOINTING AUTHORITY TO RECONSIDER HER SITUATION IN THE LIGHT OF THE NEW CIRCUMSTANCES , IT WOULD NEVERTHELESS BE INCUMBENT UPON HER TO MAKE SUCH A REQUEST AS SOON AS POSSIBLE AND IN ANY CASE WITHIN THE THREE MONTHS FOLLOWING HER RESUMPTION OF DUTY . SINCE THE APPLICANT ALLOWED A YEAR TO ELAPSE BEFORE MAKING THE CLAIMS CONTAINED IN HER LETTER OF 7 NOVEMBER 1979 , IT IS CLEAR THAT THOSE CLAIMS WERE SUBMITTED OUT OF TIME AND THEREFORE IN SO FAR AS THEY ARE CONCERNED THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

BEFORE GIVING JUDGMENT ON THE SUBSTANCE OF THE CASE ,

HEREBY :

1 . DISMISSES THE OBJECTION OF INADMISSIBILITY AS REGARDS THE APPLICATION REGARDING DETERMINATION OF THE APPLICANT ' S SENIORITY AND DIRECTS THAT THE PROCEEDINGS SHALL CONTINUE WITH REGARD TO THE SUBSTANCE OF THE ACTION ;

2 . DISMISSES THE APPLICATION AS INADMISSIBLE WITH REGARD TO THE OTHER ISSUES ;

3 . ORDERS THAT THE COSTS BE RESERVED .