Judgment of the Court (Second Chamber) of 17 March 1971. - Heinrich Kschwendt v Commission of the European Communities. - Case 47-70.



European Court reports 1971 Page 00251

Danish special edition Page 00039

Greek special edition Page 00727

Portuguese special edition Page 00065



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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OFFICIALS - APPLICATIONS - CLEAR INADMISSIBILITY - COSTS WHICH ONE PARTY UNREASONABLY CAUSES THE OTHER TO INCUR - ARTICLE 70 OF THE RULES OF PROCEDURE - INAPPLICABILITY

( RULES OF PROCEDURE, ARTICLES 69 AND 70 )

Summary

WHERE AN APPLICATION MADE BY AN OFFICIAL IS CLEARLY INADMISSIBLE THE PREFERENTIAL PROVISIONS OF ARTICLE 70 OF THE RULES OF PROCEDURE CANNOT APPLY .

Parties

IN CASE 47/70

HEINRICH KSCHWENDT, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN HOWALD, LUXEMBOURG, REPRESENTED BY ERNEST ARENDT, ADVOCATE AT THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT, CENTRE LOUVIGNY, 34/B/IV RUE PHILIPPE-II, APPLICANT, V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION AT THE PRESENT STAGE OF THE PROCEEDINGS, FOR A DECISION AS TO THE ADMISSIBILITY OF THE APPLICATION LODGED BY THE APPLICANT FOR THE ANNULMENT OF THE IMPLIED DECISION OF THE COMMISSION REJECTING HIS CLAIM OF 30 APRIL 1970 FOR PAYMENT OF DAILY SUBSISTENCE ALLOWANCES AND OF NOTIONAL REMOVAL EXPENSES IN ACCORDANCE WITH ARTICLE 10 ( 1 ) AND ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS AND WITH ARTICLE 25 ( 1 ) AND ( 3 ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS,

Grounds

1 THE APPLICATION IS A REQUEST FOR THE ANNULMENT OF THE IMPLIED DECISION OF THE COMMISSION REJECTING THE COMPLAINT OF THE APPLICANT OF 30 APRIL 1970 DIRECTED TO THE PAYMENT OF DAILY SUBSISTENCE ALLOWANCES AND NOTIONAL REMOVAL EXPENSES IN ACCORDANCE WITH ARTICLE 10 ( 1 ) AND ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS AND WITH ARTICLE 25 ( 1 ) AND ( 3 ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS .

2 THE COMMISSION HAS APPLIED TO THE COURT, IN PURSUANCE OF ARTICLE 91 OF THE RULES OF PROCEDURE, FOR A DECISION ON THE ADMISSIBILITY OF THE APPLICATION WITHOUT GOING INTO THE SUBSTANCE OF THE CASE .

3 THE APPLICANT WAS ENGAGED BY THE COMMISSION OF THE EAEC AS A TEMPORARY SCIENTIFIC OFFICER BY CONTRACT OF 20 SEPTEMBER 1965 AND ASSIGNED TO THE JOINT RESEARCH CENTRE, ISPRA .

4 AT FIRST, AND UNTIL 31 JANUARY 1966, HE RECEIVED THE DAILY SUBSISTENCE ALLOWANCE PROVIDED FOR BY ARTICLE 10 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS AND BY ARTICLE 25 ( 1 ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS AND GRANTED TO AN OFFICIAL OR TEMPORARY SERVANT WHO FURNISHES EVIDENCE THAT HE CAN NO LONGER RESIDE AT HIS ORIGINAL PLACE OF RESIDENCE AND WHO HAS NOT MOVED TO THE PLACE WHERE HE IS EMPLOYED .

5 ON 27 JUNE 1966, THE HEAD OF THE PERSONNEL AND INTERNAL ADMINISTRATION BRANCH OF THE ISPRA CENTRE INFORMED THE APPLICANT BY MEMORANDUM THAT HE DID NOT FULFIL THE CONDITIONS EITHER FOR PAYMENT OF THE DAILY SUBSISTENCE ALLOWANCE OR FOR REPAYMENT OF ACTUAL OR NOTIONAL REMOVAL EXPENSES SINCE BEFORE HIS APPOINTMENT HE HAD BEEN LIVING AT THE HOME OF HIS WIFE, HERSELF AN OFFICIAL OF THE ISPRA CENTRE, AT THE PLACE WHERE HE WAS SUBSEQUENTLY EMPLOYED .

6 ACCORDING TO A DETAILED ACCOUNT CONTAINED IN THIS MEMORANDUM, THE DAILY SUBSISTENCE ALLOWANCES PAID FROM 23 SEPTEMBER 1965 TO 31 JANUARY 1966 WERE SET OFF AGAINST OTHER ALLOWANCES OWED TO THE APPLICANT AND HIS WIFE AND THE APPLICANT WAS GIVEN THE CHOICE OF EITHER IMMEDIATELY REPAYING THE BALANCE OR HAVING IT DEDUCTED WHEN HE WAS ESTABLISHED .

7 IN FACT, THIS BALANCE WAS DEDUCTED WHEN THE REMAINDER OF THE INSTALLATION ALLOWANCE WAS PAID FOLLOWING THE APPLICANT' S ESTABLISHMENT .

8 IT FOLLOWS FROM THE ABOVE THAT ON 27 JUNE 1966 THE COMMUNITY ADMINISTRATION TOOK A DECISION RELATING TO THE APPLICANT AGAINST WHICH THE LATTER WAS ENTITLED TO APPEAL UNDER ARTICLE 91 OF THE STAFF REGULATIONS .

9 AT THAT TIME, THE APPLICANT HAD THE CHOICE OF EITHER LODGING A DIRECT APPEAL TO THE COURT UNDER ARTICLE 91 OF THE STAFF REGULATIONS OR OF SUBMITTING TO THE APPOINTING AUTHORITY, UNDER ARTICLE 90 OF THE SAME STAFF REGULATIONS A COMPLAINT AGAINST THE DECISION TAKEN WITH REGARD TO HIM .

10 IN FACT, THE APPLICANT MADE SEVERAL REQUESTS OR COMPLAINTS THE FIRST OF WHICH OF 26 JULY 1966 INVOKED ARTICLE 90 OF THE STAFF REGULATIONS AND WAS ADDRESSED TO THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION OF THE COMMISSION IN BRUSSELS .

11 FINALLY, IN REPLY TO THE VARIOUS COMPLAINTS MENTIONED ABOVE, THE HEAD OF THE PERSONNEL AND INTERNAL ADMINISTRATION BRANCH OF THE ISPRA CENTRE INFORMED THE APPLICANT ON 20 MARCH 1970 THAT HIS CASE HAD BEEN THE SUBJECT OF A FURTHER VERY DETAILED EXAMINATION BUT THAT THIS EXAMINATION HAD NOT ALTERED THE PREVIOUS ATTITUDE OF THE ADMINISTRATION .

12 SINCE THE APPLICANT DID NOT RECEIVE A REPLY WITHIN THE PERIOD PRESCRIBED BY ARTICLE 91 OF THE STAFF REGULATIONS TO A FURTHER COMPLAINT WHICH HE HAD SUBMITTED ON 30 APRIL 1970 TO THE APPOINTING AUTHORITY, ON 6 AUGUST 1970 HE LODGED AN APPLICATION FOR THE ANNULMENT OF THE IMPLIED DECISION REJECTING HIS COMPLAINT .

13 THE APPLICANT CLAIMS THAT THE DECISIONS PRIOR TO THE ONE WHICH IS THE SUBJECT OF THIS APPLICATION WERE NOT TAKEN BY THE COMPETENT AUTHORITY AND THAT HIS OWN COMPLAINTS AGAINST THESE DECISIONS WERE NOT ADDRESSED TO THE AUTHORITY REFERRED TO IN ARTICLE 90 OF THE STAFF REGULATIONS .

14 CONSEQUENTLY HE CLAIMS THAT THE APPLICATION LODGED FOLLOWING THE ADMINISTRATION' S OBSERVATIONS OF 20 MARCH 1970 AND HIS COMPLAINT OF 30 APRIL 1970 IS ADMISSIBLE .

15 IF THE INITIAL DECISION OF 27 JUNE 1966 HAD BEEN TAKEN BY AN AUTHORITY WHICH WAS NOT COMPETENT IT COULD HAVE BEEN CHALLENGED ON THE GROUNDS OF LACK OF AUTHORITY .

16 FOR THIS REASON, IF THE COMPLAINT OF 26 JULY 1966 WAS NOT VALIDLY SUBMITTED THE PERIOD FOR LODGING AN APPEAL WHICH BEGAN TO RUN WITH THE DECISION OF 27 JUNE 1966 EXPIRED IN ACCORDANCE WITH ARTICLE 91 ( 2 ) AFTER THREE MONTHS, WHEREAS IF THE COMPLAINT OF 26 JULY 1966 WERE TO BE CONSIDERED AS HAVING BEEN DULY SUBMITTED THE PERIOD FOR LODGING AN APPEAL EXPIRED IN ACCORDANCE WITH THE SECOND SUBPARAGRAPH OF ARTICLE 91 ( 2 ) AT THE LATEST FOUR MONTHS AFTER THIS COMPLAINT WAS SUBMITTED .

17 IT FOLLOWS FROM THE ABOVE THAT, IN ANY EVENT THE PERIOD FOR LODGING AN APPEAL EXPIRED AT THE LATEST TOWARDS THE END OF 1966 .

18 THE COMMUNICATION FROM THE HEAD OF PERSONNEL AND INTERNAL ADMINISTRATION BRANCH OF THE ISPRA CENTRE OF 20 MARCH 1970 - THE SAME AUTHORITY WHICH WAS ALLEGEDLY NOT COMPETENT AND WHICH TOOK THE INITIAL DECISION - DID NOT HAVE THE EFFECT OF CONFERRING A NEW RIGHT OF APPEAL SINCE IT WAS A DECISION WHICH MERELY CONFIRMED A SITUATION WHICH THE MEMORANDUM OF 27 JUNE 1966 HAD RENDERED INCONTESTABLE .

19 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

Decision on costs

20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

21 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

22 ALTHOUGH, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS ARE REQUIRED TO BEAR THEIR OWN COSTS, THIS PROVISION MAKES AN EXCEPTION IN PARTICULAR AS REGARDS COSTS WHICH THE COURT CONSIDERS THAT ONE PARTY HAS UNREASONABLY CAUSED THE OPPOSITE PARTY TO INCUR WITHIN THE MEANING OF THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ).

23 THE APPLICATION IS CLEARLY INADMISSIBLE .

24 THE PREFERENTIAL PROVISIONS OF ARTICLE 70 OF THE RULES OF PROCEDURE CANNOT BE EXTENDED TO AN APPLICATION LODGED IN THESE CIRCUMSTANCES .

25 CONSEQUENTLY, THE APPLICANT MUST BE ORDERED TO BEAR ALL THE COSTS OF THE ACTION .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO BEAR ALL THE COSTS .