3.

In support of its objection of inadmissibility the Commission contends that the applicant seeks the annulment of its clear and explicit decision of 31 January 1984 which allegedly constitutes an act adversely affecting him within the meaning of Article 90 (2). Consequently, it is irrelevant that Mr Bevere described his letter of 15 February 1984, which was received by the Commission on 21 February 1984, as a ‘request’; that letter must be regarded as a complaint which was the subject, prior to its express rejection on 16 October 1984, of an implied decision rejecting it, against which an appeal could not be brought except within a period of three months, which expired on 21 September 1984. The Commission therefore considers this action inadmissible on the ground that it was commenced out of time. Mr Bevere contends that the objection of inadmissibility should be dismissed on the ground that his ‘request’ of 15 February 1984 cannot be regarded as a complaint and that the Commission cannot take advantage of the fact that it did not reply to him within the time-limits laid down. During the oral procedure the Court deplored the fact that the Commission waited until 16 October 1984 to inform Mr Bevere that it regarded his ‘request’ as a ‘complaint’. Supposing it to be justified, such a reclassification, made within good time, would have enabled Mr Bevere to bring his action without the risk of its being inadmissible. The Commission's representative did not dispute that there had been a delay which he attributed to the increasing number of complaints. He observed, however, that it was legally unsafe to make the classification of the decision of 31 January 1984 depend on the degree of diligence shown by the Commission. I take the same view. The letter of 31 January 1984 notifying Mr Bevere of the previous service taken into account for the purpose of calculating his pension rights is the act which may adversely, affect him. Moreover, it is that act which he seeks to have annulled by the Court.. The Commission would, certainly have been better advised to explain its refusal without waiting such a long time, particularly after receiving Mr Bevere's: second letter of 9 July 1984 and especially after receiving his letter of 3 September headed ‘complaint’. Such delay, if it were to prove wrongful, might give rise to liability on the Commission's part. However, there is nothing to suggest that the Commission remained silent in order to keep the applicant under misapprehension. The duty to have regard to the welfare of employees cannot be identical with a duty to give advice and assistance. The convention of the implied decision rejecting a complaint and the effects attached to it as regards the exercise of rights of appeal show that it is for officials to act to secure their rights and provide them with the procedural means to do so. However justified it may be, the desire to protect officials from their own errors of judgment must not open the way to legal uncertainty. In addition, it is not irrelevant to recall that, prior to submitting his ‘request’ of 15 February 1984, Mr Bevere had declared that he accepted the proposal submitted to him on 13 May 1982, which was set out in identical terms, in the form of a decision, in the contested document. His acceptance certainly did not deprive him of the right to challenge the decision; however, it could be challenged only by means of a complaint under Article 90 (2) of the Staff Regulations and not by means of a request as provided for in Article 90 (1). I therefore take the view that the Commission was right to reclassify as a complaint the ‘request’ submitted to it on 15 February 1984 which was therefore the subject of an implied rejection four months after the date on which it was received by the Commission. Consequently, for reasons of legal security, it is my view that this application must be declared inadmissible.