OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 10 NOVEMBER 1965 ( 1 )

Mr President,

Members of the Court,

Although the three applications referred to you under Nos 52/64, 12/65 and 47/65 are made by different applicants, all of whom belong to one Translation Department, and although the first two are directed against the Commission of the EEC and the third against the European Parliament, I shall ask your permission to submit one opinion for all three. The circumstances of each one are very similar, if not identical, and each arises out of your judgment in Case 70/63 of 7 July 1964. As regards the first two, the defendant institution contested the admissibility of the applications; as regards the third, an order made by your Chamber of 14 July last decided to apply Article 92 of the Rules of Procedure and to rule first on admissibility.

I

Let us consider the facts according to the order in which the applications were filed.

(a) In 1958 Mr Pfloeschner, the applicant in Case 52/64, entered the service of the Commission of the EEC as an interpreter and on the entry into force of the Staff Regulations held Grade L/B, Step 4. By decision of 21 December 1962, he was integrated and classified in Grade L/A5, Step 5, as. from 1 January 1962. By a later decision of 23 September 1963 he was reclassified in Grade L/A4, Step 2, also with effect from 1 January 1962. By letters of 24 July and 30 September 1964, addressed to the Director-General of Administration and the Commission respectively, and basing his request on your judgment in Case 70/63 of the preceding 7 July, Mr Pfloeschner asked to be granted Step 4 with seniority in that step from 1 January 1962. On 2 October 1964, the Director-General of Administration informed him that his application was under consideration but, having received no reply on the expiry of the period of two months laid down in Article 91 (2) of the Staff Regulations, on 23 November 1964 the official concerned made an application to the Court.

(b) The case or Mr Bauer, the applicant in Case 12/65, is very similar. Like Mr Pfloeschner, he is a member of the Translation Department of the Commission of the EEC. On 21 December 1962 he was integrated in Grade L/A5, Step 8, as from 1 January 1962, and by decision of 23 September 1963 was reclassified as from the same date in Grade L/A4, Step 5. On 30 October 1964 he submitted to the Commission what he called a “request and complaint” whereby he sought to be accorded Step 8 of Grade L/A4 as from 1 January 1962. Following a “temporizing” reply of 13 January 1965 he submitted an application to the Court on 26 February 1965.

(c) Miss Kalkuhl, the applicant in Case 47/65, belongs to the Translation Department of the European Parliament and was established in Grade L/A4, Step 2, by decision of 20 December 1962. On 30 March 1965, relying on your judgment in Case 70/63, she requested that her situation be reviewed without otherwise giving details of her claims. As on the following 9 April the President of the Parliament rejected her complaint she submitted an application to the Court on 3 July. Thus, in these three cases, the situation may be summarized as follows: an official whose step was fixed by a decision of 1962 or 1963 which was not contested at that time, submits in 1964 or 1965 a complaint through official channels for the alteration of this step as from the date of his integration. Following a temporizing reply or an express refusal to accede to his request, he submits an application to you.

II

Is such an application admissible? The question arose in almost identical circumstances in Cases 50, 51, 53, 54 and 57/65, Loebisch and Others, which gave rise to your judgment of 15 July last. In that case you replied in the negative and, having considered the special features of the arguments submitted in this case, I can only suggest that you adopt the same solution today.

1. According to Article 91 of the Staff Regulations, an appeal by an official must be filed within three months from the date of notification of the individual measure concerning him. However, if the official has made use of his right under Article 90 to submit a request or complaint to the administration, the failure of the competent authority to give a decision within two months from the date of submission amounts to an implied decision rejecting the request or complaint which must be contested before you within the following two months. Moreover, although Article 90 lays down no time-limit for submitting such a complaint, this does not mean that whatever the date of its submission such a complaint can re-open the period for appealing against an earlier decision which was not contested within the proper time-limits. It is for this reason that the judgment in the case of Loebisch, referring to the decision already accepted in the judgment in Case 43/64, Richard Midler, regards the administration's rejection of complaints identical to those on which the present cases are based as amounting to a confirmation of earlier decisions classifying the officials concerned and that, as the allegation made in these complaints arises out of these decisions, it is these which should have been contested by the candidates within the legal time-limits. This is precisely the case in the three applications upon which I am required to give my opinion. It is not disputed that the complaints submitted to the administration were directed against decisions made several years earlier awarding specific steps to the applicants and which had not been contested at that time. They cannot, therefore, create a new period for making an appeal. Without expressly discussing this argument, Mr Bauer's Advocate has put forward two reservations : 1. First that there can only be an implied rejection if, on the expiry of the two months' period, the administration “has not moved at all”, but not if it replies that the question is under consideration. A mere reading of Article 91 shows that this statement is incorrect. In order to give rise to an implied decision rejecting a request it is sufficient for “the competent authority to fail to give a decision within two months”; however, as a temporizing reply clearly does not constitute a decision, it cannot prevent the intervention of an implied decision on the expiry of the two months' period. Moreover, if in this instance no decision had been taken, no appeal could be made. The second reservation is based on the distinction between a ‘request’ and a ‘complaint’. The latter is intended to modify an existing legal situation and, for this reason, must be submitted within a mandatory time-limit; the former is intended to confirm a right and need not necessarily be submitted within a specific period. Two replies may be made here: first, although Articles 90 and 91 of the Staff Regulations refer to both the request and the complaint, they are still subject to the same system. Secondly, Mr Bauer himself described his appeal to the administration as a request and complaint.

2. The above rules concerning the time-limits for bringing appeals could be set aside if the applicants could rely on a new fact capable of changing the basic circumstances and conditions governing their classification. They believed that they had found such a fact in your judgment in Case 70/63 but this is refuted by the judgments referred to above in the cases of Richard Müller and Loebisch which restate that only persons concerned by the legal effects of a judgment of the Court annulling a measure are the parties to the action and those persons directly affected by the measure annulled. As the judgment in Case 70/63 refers only to the specific situation of the author of the application, it could not directly concern third parties such as the present applicants. You know that during the oral proceedings Mr Pfloeschner's and Miss Kalkuhl's Advocate attempted to avoid the consequences of this case-law by maintaining that, although the judgment in Case 70/63 did not constitute a new factor as regards these two officials, it did so as regards the institutions which employed them. As a result of the common positions which the institutions adopted both on the entry into force of the Staff Regulations and after the delivery of your judgment in Case 70/63, they were directly concerned by this judgment which constitutes a new factor as regards them. This explanation is too ingenious to be convincing. If the judgment in Case 70/63 constituted a new factor as regards an institution and, as such, obliged this body to alter the position of one of its servants, this would necessarily mean that the servant was directly concerned by the same judgment; this is precisely the view that your case-law does not accept.

3. This being so, whatever arguments may be adduced based on fairness and the duty of the administration to ensure that its officials receive the salary which best corresponds to the most favourable interpretation of the Staff Regulations, I do not believe that they are capable of affecting the outcome of the present actions. We are dealing here with a problem of admissibility, governed by express provisions. If mandatory time-limits exist for bringing actions, the Court must respect them, either by accepting the defendant's objection of inadmissibility, or even by raising such an objection of its own motion. In my opinion, therefore, there is no reason to consider the substance of the applications in Cases 52/64 and 12/65 brought by Mr Pfloeschner and Mr Bauer in which this question was discussed during the written procedure; I suggest that you dismiss as inadmissible these two applications as well as the application in Case 47/65 brought by Miss Kalkuhl.

III

There remains the problem of costs which was argued in detail in the oral proceedings.

The applicants maintain that, even if their applications be declared inadmissible, the defendant must in any event bear all the costs. Whether the admissibility of applications such as theirs was not originally discussed, whether the applications were only made to the Court in the absence of any reply to their administrative complaints, whether, finally, as in other cases—that is, Maudet, Erba and Reynier—the administration had itself accorded the benefit of a judgment to servants who had submitted no complaint, these different circumstances are said to justify an award of all the costs against the institution.

It must be remembered However that, subject to the provision that in proceedings by officials institutions shall bear their own costs, Article 69 (2) of the Rules of Procedure provides that the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading; in this case such a request was made. The Court may only order that the parties bear their own costs in whole or in part where ‘the circumstances are exceptional’. You have held that such was the case where errors imputable to the administration encouraged the applicant to appeal to the Court (Case 11/64, Weighardt v Commission of the EAEC,7 April 1965, [1965] ECR), but this does not apply to the present case. In particular, by giving no reply to a complaint or by merely giving a temporizing reply the institution did no more than make use of one of its powers under Article 91 of the Staff Regulations and its attitude cannot be regarded as a wrongful act or an error which necessarily involves the rejection of the principles laid down in Articles 69 (2) and 70 of the Rules of Procedure.

I am therefore of the opinion that:

Applications 52/64, 12/65 and 47/65 should be dismissed as inadmissible;

furthermore, in each case, subject to the provisions of Article 70 of the Rules of Procedure, the costs should be borne by the applicant.

( 1 ) Translated from the French.