OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 26 JANUARY 1972 ( 1 )

Mr President,

Members of the Court,

I am today required to give my opinion on the admissibility of an action brought by a former official of the Commission of the European Economic Community. Since it is a dispute which is connected to an earlier case (Case 19/69 [1970] ECR 325) I need not go into the facts in great detail.

From the other case it is known that in 1968 the applicant submitted an application for termination of her employment. This was done on the basis of Regulation No 259/68 of the Council of 29 February 1968 (OJ L 56, 1968, p. 1) which contained special provisions to enable the single Commission to reduce the number of posts and to rationalize its departments. Before she made her application the President of the Commission on 5 March 1968 had requested the officials concerned to obtain information with regard to the pecuniary rights arising in this situation from the relevant departments of the administration of the Commission. The applicant made use of this opportunity. She was informed that upon completion of her 55th year a pension would be granted to her without a percentage reduction. Her application was granted by a decision of the Commission of 20 June 1968 whereby her employment was terminated with effect from 1 October 1968. After this date, to be more exact, on 20 December 1968, the applicant received a telegram from the manager of the Directorate-General for Personnel and Administration informing her that the full pension would only be payable to her upon completion of her 60th year. The applicant protested against this in a letter of 23 December 1968 stating that the contents of the telegram might cause her ‘à réviser la décision de cesser mes fonctions’ (‘to reconsider my decision to leave the service’). When it was confirmed in a notification of 13 January 1969 that an unreduced pension was only payable to the applicant upon completion of her 60th year, she lodged a formal complaint with the Commission on 15 January 1969. She there expressly emphasized that in the event of the full pension not being payable from her 55th year, she demanded the revocation of the decision terminating her employment and her reinstatement in the service of the Commission. As she received no answer to her complaint she brought the matter before the Court of Justice on 23 April 1969. In these proceedings the application was made first for the annulment of the decision of the Directorate-General for Personnel and Administration of 13 January 1969 and of the order of 20 June 1968 terminating her service and for an order that she be reinstated in the service of the Commission. However, in the reply the second part of the application was amended and in place of reinstatement in the service of the Commission, there was only sought an award of compensation. The proceedings ended with the judgment of 28 May 1970 whereby the application for the annulment of the decision of 13 January 1969 and also the application for the payment of financial compensation were dismissed. The Court ruled as follows with regard to the application for financial compensation: ‘The applicants (as you know there were several joined cases) have failed, however, to adduce sufficient evidence to establish that their requests for termination of service were based on the wrong information supplied to them and not corrected in good time. Morover, the fact that they have all waived a request for reinstatement in the departments of the Commission reinforced the conviction that the prospect of a right to an unreduced pension from the age of 55 was not a deciding factor in their decision to request the application of Article 4 of Regulation No 259/68’.

A colleague of the applicant who, in proceedings brought at the same time (Case 23/69, Fiehn v Commission, [1970] ECR 547) also sought inter alia the payment of compensation for being given wrong information in respect of the granting of pensions. In that case the Court ordered the Commission ‘to pay to the applicant from the time when she attains the age of 55 and until she attains the age of 60 a monthly allowance, equal to the pension payments to which she would have been entitled if the provision in the fourth subparagraph of Article 5(7) of Regulation No 259/68 had been applicable to her’. In the grounds of judgment it is stated in this respect that the letter of 20 December 1968 from the applicant to the Director General for Personnal and Administration, and her complaint of 10 February 1969 show that her request for termination of service was a result of the wrong information which she had been given and which was not rectified in due time. It is further stated: ‘Moreover, the fact that in the above-mentioned letter and complaint she asked, in the alternative, to be reinstated in the service of the Commission, lends support to the conclusion that the prospect of a right to receive a full pension from the age of 55 was a deciding in her decision to request the application of Article 4 of Regulation No 259/68’.

As soon as the applicant was informed of the judgment relating to her and of the fact that her counsel had, in the reply, dropped the application for reinstatement, she consulted him on 19 June 1970. On 20 July 1970 he sent a letter with a request for an opinion to the Registrar of the Court of Justice, but without achieving any result (cf. answer of the Registrar of 21 September 1970).

As the applicant takes the view that her legal position is identical to that in Case 23/69 she further submitted a complaint to the President of the Commission on 10 September 1970 in accordance with Article 90 of the Staff Regulations. She demanded to be compensated in the same way as the applicant in Case 23/69 or to be reinstated in the service of the Commission. She received a letter from the Director for Personnel and Administration of 15 December 1970 informing her that the request was being examined and that the applicant would be informed of the result of this examination as soon as possible. In a further letter to the President of the Commission of 15 February 1971 she reminded him of her complaint of 10 September 1970. On 8 July 1971, as she had still received no answer, she again brought the matter before the Court and thus initiated the present proceedings.

The present action has principally the same purpose as her complaint to the President of the Commission of 10 September 1970, that is, she seeks an award of compensation equivalent to that awarded in Case 23/69 or reinstatement in the service of the Commission. Alternatively, and in the case the Commission should rely on the force of res judicata of the judgment in Case 19/69 (Richez-Parise v Commission [1970] ECR 325) she requests that her action be regarded as an application for revision of a judgment in accordance with Article 41 of the Protocol on the Statute of the Court of Justice of the EEC.

I must now examine the admissibility of these claims. This is necessary as the Commission is convinced of their inadmissibility and has applied under Article 91 of the Rules of Procedure for the action to be dismissed as inadmissible, without examining the substance of the case. Let us therefore consider this aspect of the matter.

I — The principal claims

1. The Commission has raised a series of objections to the admissibility of the principal claims. One of the more important relates to the observation of the limitation period. Since the application was caused by the failure to answer a complaint, the decisive provision is Article 91 of the Staff Regulations. This provides: ‘Where the competent authority takes no decision in respect of a request or a complaint from a person covered by the Staff Regulations within two months from the date on which it was lodged, this shall be deemed to constitute an implied decision rejecting it; an appeal against such decision shall be lodged within a further two months’. It can certainly not be said that this provision was complied with once one accepts that the abovementioned periods began to run on 10 September 1970, that is, when the complaint was lodged with the Commission. Since no decision capable of being challenged was issued within two months the application should have been lodged within a further two months. In fact it only reached the Court on 8 July 1971. In the opinion of the applicant account must be taken, in this respect, of the fact that in a letter of 15 December 1970 she was informed that her request was being examined and that she would be informed of the result of the examination as soon as possible. The impression was thus created that the Commission was dealing with the request and the applicant was thus persuaded that it was not appropriate to institute legal proceedings. When we consider what weight to give to this argument, we are bound to say, however, that the previous decided cases of the Court do not appear favourable to the applicant. Properly understood, temporizing answers of this kind are basically of no relevance for the purposes of the application of Article 91 of the Staff Regulations. This is shown by the decided cases relating to Article 35 of the Coal and Steel Treaty. In one case (Joined Cases 42 and 49/59, Snupat v High Authority, Rec. 1961, p. 109) where the Markets Department of the High Authority informed the undertaking concerned within two months after the questions had been submitted to it that these were being examined, it was held that this answer did not constitute a decision, but that there was an implicit decision of rejection and the application was therefore to be regarded as inadmissible. In another case (Joined Cases 7 and 9/54, Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority, Rec. 1956, p. 89) where a reasoned decision was issued after the expiry of the period prescribed by Article 35 of the Coal and Steel Treaty, the Court of Justice pointed out that upon the expiry of the period of two months there is deemed to be an implied issue of a decision of rejection and that thereupon the party concerned has an unqualified right of action. Reference should also be made to more recent case-law (Case 4/67, Müller v Commission, [1967] ECR 365) according to which since the periods prescribed for instituting proceedings are governed by mandatory provisions they are not subject to the discretion of the parties or of the Court. In the judgment in Case 24/69 (Nebe v Commission, [1970] ECR 145) it was held that this principle applies to both periods set out in Article 91 of the Staff Regulations. Therefore if no decision is taken in respect of a request or complaint within the meaning of Article 91 of the Staff Regulations, then the request or complaint is deemed to be rejected upon the expiry of the two months period and, as is expressly stated in that judgment, ‘such decision may be contested within a period of two months’. Accordingly, in the judgment in Case 52/64 (Fred Pfloeschner v Commission, [1965] II ECR 981) it was pointed out that a reply stating that the complaint or request submitted is under consideration does not cause a period to start to run afresh; in fact it amounts to a failure to take a decision. Thus it can be held that in spite of the reply of the Commission of December 1970 the application must be regarded as out of time. This result would be no different if (and this does not appear to be possible) one were to start with the letter sent by the applicant on 15 February 1971 to remind the Commission. It may be accepted that this letter arrived at the latest one week after the date on its postmark in Brussels. Therefore, 22 April 1971 would have to be regarded as the day on which a negative decision was deemed to have been issued by implication. Taking into account the extension on account of distance of six days applicable for the applicant, as she is resident in France, the application should have been received by 28 June 1971 at the latest. However, in fact, as we have seen, it was only received on 8 July 1971. Therefore, however one considers compliance with the periods prescribed in Article 91 of the Staff Regulations there can be only one conclusion, namely that the application is out of time.

2. Examination of further considerations is therefore essentially superfluous. (a) However, I should at least like to point out that the reference to the force of res judicata of the judgment in Case 19/69 is important. The present application, let me repeat, is for the award of compensation for wrong information about the pension rules and in the alternative for the reinstatement of the applicant in the service of the Commission. However, after the alternative claim for reinstatement had been dropped in the reply in Case 19/69 and a claim for damages substituted, the claim for compensation had been the subject of those earlier proceedings and of the judgment therein given against the applicant. Therefore at least in this respect the objection of res judicata can be upheld against the applicant in the present proceedings and thus her alleged claim for compensation cannot be considered anew. (b) The same objection cannot succeed against the alternative claim for reinstatement in the service of the Commission which was originally put forward in Case 19/69 since when the decision was given the claim no longer formed part of the subject-matter of those proceedings. In this respect however it should be remarked that this claim in fact seeks nothing more than the annulment of the decision of 20 June 1968 terminating the applicant's employment which was notified to her on 21 June 1968 and which became effective on 1 October 1968. However such a claim can certainly no longer be persued since the relevant limitation periods have long since expired. This is so whether the abovementioned dates are taken as the starting point or later dates such as the date of the letter in which the applicant was informed that she would only be entitled to receive full pension upon completion of her 60th year (13 January 1969).

3. Therefore I can only repeat that the principal claims made by the applicant must certainly be dismissed as inadmissible.

II — The alternative claim for revision of the judgment

With regard to the alternative claim for the revision of the judgment in Case 19/69 the applicant, as we know, attempts to support it with the argument that in fact she had never agreed to refrain from seeking to be reinstated in the service of the Commission. She says that the amendment to her claim contained in the reply in Case 19/69 had occurred without her knowledge and the Court had therefore based its judgment in Case 19/69 on a false view of her intentions.

In this respect too the Commission has raised a series of objections. I should like to make the following observations on them. According to Article 41 of the Protocol on the Statute of the Court of Justice an application for revision may be made ‘on discovery of a fact which is of such a nature as to be a decisive factor, and which, when the judgment was given, was unknown to the Court and to the party claiming the revision’. Article 99 of the Rules of Procedure lists the requirements which must be complied with in an application for revision. In addition Article 98 of the Rules of Procedure provides: ‘An application for revision of a judgment shall be made within three months of the date on which the applicant receives knowledge of the facts on which the application is based’.

If one first examines whether the provisions of Article 98 of the Rules of Procedure are complied with and whether the application is submitted in good time, it is not long before, in this respect, too, one has to find against the applicant. In her complaint of 10 September 1970 she herself admits that on 19 June 1970 she received knowledge of the judgment in question and also of the fact that the Court proceeded on the basis that she was not concerned to be reinstated in the service of the Commission. Therefore an application for revision based upon this factor should have been lodged at the Court by 25 September 1970 at the latest, taking into account an extension on account of distance of six days, or, if one takes the letter in reply from the Registrar of 21 September 1970 as the starting-point, then before the end of 1970. In fact, however, it was only made in July 1971 at the same time as the claims which have been discussed above. This delay cannot be justified by the bringing of an administrative complaint against the Commission. What is decisive in this respect is that the revision of a judgment is a matter for the Court alone; the fact that the matter was brought before the Commission at the same time can be the very nature of the case be of no relevance to the revision proceedings. In addition it should be noted that the Commission only issued a temporizing answer in December 1970, that is, at a time when the period for applying for revision under Article 98 of the Rules of Procedure had long since expired. Failure to comply with this time-limit cannot be ascribed to the conduct of the Commission. Since the principle that the parties do not have the right to vary the appropriate limitation periods as they see fit as regards the institution of proceedings, the same must clearly also apply as regards revision of a judgment, that is, a matter in which the principle of the force of res judicata is no longer absolute and where the principle of legal certainty undoubtedly has particular force.

Thus it must be held that the alternative application for revision must also be dismissed as inadmissible on the ground of failure to comply with the limitation period. Since this conclusion is beyond all doubt, in my opinion there is no need to examine the further objections raised by the Commission in this respect.

III — Costs

Under Article 70 of the Rules of Procedure, in proceedings under Article 95(1), institutions generally bear their own costs even if they are successful. However, it is provided that this shall be without prejudice to the second subparagraph of Article 69(3); therefore the applicant may be ordered to bear the costs of the defendant institution if they were caused unreasonably or vexatiously. In the present case the Commission raised the question whether application of this provision might not be justified. It left the decision on this point to the discretion of the Court.

There can be no doubt as to the justification of raising this question. The admissibility of the application founders on requirements which are easily inferred from the relevant provisions and from the case-law. This is obvious from even a superficial examination of the facts. As was said in the judgment in Case 47/70 (Kschwendt v Commission, [1971] ECR 258) the inadmissibility of the application is ‘self-evident’. Therefore in the present case the application of Article 70 in conjunction with the second subparagraph of Article 69(3) of the Rules of Procedure may in fact be considered. It is ultimately for the Court to decide, taking into account all the circumstances in which the two actions were brought, whether to apply those provisions.

IV — My opinion is therefore as follows :

The application submitted by Mrs Richez-Parise must be dismissed as inadmissible in its entirety. In application of Article 70 and the second subparagraph of Article 69 (3) of the Rules of Procedure it may be considered whether the applicant should bear the costs which she may unreasonably have caused to the Commission.

( 1 ) Translated from the German.