(a)

The High Authority's main objection to this is that the limitation period of three months decreed by Article 91 of the Staff Regulations had expired. In its view the applicant could have pursued the claims set out in the application simply by making an application for annulment of the note of 23 January 1963 determining his position within the administration. The text of the Staff Regulations and the case-law of the Court appear to justify this objection. Anyone who fails to protect his interests by taking proceedings within the proper time-limit against measures open to challenge cannot be allowed to bring an action for failure to act after expiry of the time-limit, since interest reipublicae ut sit finis litium. Admittedly, the Court of Justice (Case 69/93) mitigated the harshness of this principle — and rightly I think — as regards staff cases when it decided that it was desirable, and even necessary in the light of the duty of loyalty by which officials are bound, that administrative decisions adversely affecting officials should not be contested immediately by legal proceedings, but that an attempt must first be made to reach an amicable settlement by means of internal procedure. However, it should at least be insisted that administrative complaints against a measure which may be challenged must be lodged with the authorities within the appropriate time since otherwise the time-limits mentioned by the Staff Regulations would have no meaning. How is this relevant to the present proceedings? There can be no doubt that the note of 23 January 1963 constitutes clear notice of the effects on his career prospects which the applicant wishes to have removed, that is to say, the restriction of his career to Grades A5 and A4. Nor can there be any doubt that this decision constitutes publication of a measure adopted by the High Authority itself, and is therefore a challengeable administrative decision. The applicant has objected to it, as he is entitled to do, by means of a letter to the President of the High Authority dated 28 January 1963. If it is considered that this letter amounts to a complaint through the official channels of the administration, as mentioned by the judgment referred to above (Case 69/63), as its wording certainly justifies, then — since the applicant received no reply from the High Authority within the two months' time-limit under Article 91 — an appeal should have been made before the expiry of a further two months, that is, before 28 May 1963. This was not done. If the letter of 28 January 1963 is not regarded as a formal complaint leading to administrative proceedings, it can still be maintained that, no such proceedings having been instituted within the three months' time-limit under Article 91 of the Staff Regulations, a later application to the Court must likewise be inadmissible. This conclusion is not affected by the fact that the applicant's superior, the Head of the Directorate-General of Work Problems, Rationalization and Reconversion, attempted to have the applicant's position altered by notes to the Administrative Committee of the High Authority of 18 February and 13 June 1963. The representations of this Director-General cannot of themselves have the slightest effect on the proceedings either of the administration or of the Court, and should be seen rather as supplementing the arguments of the applicant in support of his claims. More precisely, they cannot alter to the applicant's advantage the time-limit by which he is bound. To obtain recognition of his rights the applicant should therefore have initiated legal proceedings within the appropriate time regardless of these representations. Nor do I think it relevant that, in reply to a second complaint by the applicant on 29 July 1963, the High Authority took a decision on 17 October 1963 which became the subject of the present application. Viewed correctly, this decision, compared with the note of 23 January 1963, constitutes no more than a confirmatory measure (‘acte confirmatif’) which cannot revive a right of appeal which has lapsed. It would be otherwise if we could ascertain some alteration in the legal or factual circumstances following communication of the note of 23 January 1963. But we cannot. In fact the notification on 21 May 1963 of the definition of posts by the High Authority is a circumstance of no relevance here, because the definition of the applicant's career bracket depends not on the description of posts but directly on Annex I to the Regulations. This makes the first head of the conclusions inadmissible, unless two other arguments as to the validity of the Staff Regulations and their publication can be upheld. In the applicant's opinion the time-limits for bringing actions under the Staff Regulations do not apply to him because the Regulations were not issued by the competent body (the Committee of Presidents) and thus are void in their entirety. The allied problem of which is the body competent to issue the Staff Regulations will be considered fully at a later stage. Suffice it to say, at this point, that the Staff Regulations should be regarded as void (the only circumstance which would deprive the time-limit fixed by Article 91 of effect) only — if at all — if they were made by a body wholly without the requisite powers. We may say that, as far as it goes, this is a fundamental principle generally recognized for all the systems of administrative law in Member States, as I have already indicated in a different context (Cases 3 to 14/59). Moreover, decisions by the administration, even those of a general nature, remain valid and applicable until they have actually been annulled. The main proof of this is to be found in Article 33 of the ECSC Treaty, where special mention is made of lack of competence as a ground for an application for annulment. A number of provisions of the Treaty (Article 78; paragraph 7 of the Convention on the Transitional Provisions) make it clear that, where the scope of the powers of the Committee of Presidents is concerned, there can be no question of a complete absence of powers, in the sense of the applicant's argument, as regards the law governing Community staff. I think this is sufficiently obvious not to require further elaboration. This does not mean, however, that the limitation period under the Regulations can be held inapplicable on the ground of lack of competence to make the provision. secondly, the applicant claims that even if the new Staff Regulations are held to be valid; he has not exceeded the limitation period, for it begins to run only after publication of the Regulations in the Official Journal. It is not sufficient to notify staff by means of a circular, particularly where no signature is required to prove that notice was received at a particular time. My opinion is that at this point, too, it is impossible to follow the applicant. It is true that the Staff Regulations have no binding legal force and their provisions — including those on limitation periods — are not applicable until notice is given of them (that is, by publication). But nowhere is it prescribed that publication can only be made in the Official Journal of the Communities. The applicant is mistaken here in relying on Article 81 of the Rules of Procedure of the Court of Justice, because this regulates only the commencement of the limitation period for annulment of general provisions, not the problem we have here of an application based on general provisions. Publication can, in my opinion, properly be effected by other means, for instance by notifying the Staff Regulations to Community officials and other persons concerned, provided that publicity can be reliably secured in this way. Nor does the judgment in Case 69/63 allow of a different view, since it mentions only publication of the Staff Regulations and does not stipulate that it must be in the Official Journal. Such publication was made by the High Authority by means of the note from its President of 16 February 1962, and it is inconceivable that the applicant, a senior official, is seriously maintaining that he was unaware of a measure so significant for his legal position. Neither the failure to publish the Regulations in the Official Journal, nor the lack of acknowledgment of notification by the applicant, can have the consequence that the limitation period under Article 91 has not begun to run in relation to legal measures adopted in January 1963. So it remains the fact that the claim in the first head of the conclusions is inadmissible.