FURTHER OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 12 November 1981

My Lords,

When the matter was argued before the Court on the first occasion, one of the points which was taken on behalf of the European Parliament was that this action was inadmissible because the complaint made pursuant to Article 90 of the Staff Regulations was out of time. Two points were taken, the first one relating to the beginning of the period, and the second one relating to the end of the period prescribed for the making of a complaint.

The second point was that the complaint ought to have been received by 3 June 1980. It was contended that the complaint was not received until 4 June, and therefore it was one day out of time. The Parliament took that objection on the basis of the date stamp appearing on the relevant document. That was accepted, on behalf of Mr Michel, as being the date on which the complaint was in fact received.

My opinion to the effect that this application to the Court should be declared to be inadmissible was on the basis that the complaint was received out of time, there being no express power nor, as I saw it, any implied power to extend the time.

Since the hearing before the Court, and since I gave my opinion, further enquiries have been made, and it now appears that the complaint was in fact received by the Parliament on 3 June, although it was not in fact received by those responsible for taking a decision and dealing with it until 4 June. It is now accepted by the Parliament, as contended on behalf of Mr Michel, that the complaint was received by 3 June and is accordingly in time.

In the special circumstances of this case, My Lords, it seems to me that it is right that, as a result of the re-opening of the procedure, this application to the Court should be declared to be admissible.

At the same time it does seem to me equally regrettable (a) that the enquiry of the Post Office as to the precise date on which the complaint to the Parliament was received, was not made before the hearing before the Court, and (b) that the Parliament should have taken this point as to the date without being quite sure that the document was not in fact received earlier than 4 June. It is very much to be hoped that this kind of point would not be taken on a subsequent occasion without enquiry being made as to the precise date on which the complaint was in fact received.

Accordingly, in my opinion, this case should now be held to be admissible and it will be for the Court to decide, if the criticisms which I made in my opinion as to certain aspects of the basis of the decision of the Selection Board are accepted, whether the right course is that the decision should be annulled or that damages should be awarded. My Lords, if, as a result of the annulment of the decision, it is possible that Mr Michel's case can be reconsidered, then that would seem to me to be the more appropriate of the two courses. If, on the other hand, the Court, whilst accepting the criticism of the basis of the decision, were to be satisfied that nothing could be done to assist Mr Michel by way of annulment of the decision then this would seem to me to be an appropriate case for some form of compensation to be awarded.

I indicated in my earlier opinion that Mr Michel would not necessarily be entitled to the compensation which he in fact claimed, but which amounted in total to some BFR 90000. It is, of course, difficult to assess the appropriate compensation in a case of this kind, but should the Court come to the view that annulment here is not, in the circumstances, an effective remedy for Mr Michel then I would suggest that compensation might be appropriate in a sum of BFR 20000 rather than the BFR 90000 which are claimed. But, My Lords, as far as the application today is concerned, my opinion now is that this action should be declared to be admissible.