Judgment of the Court (First Chamber) of 15 December 1966. - Fulvio Fonzi v Commission of the EAEC. - Case 28-65.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . PROCEDURE - EXTENSION OF TIME-LIMITS ON ACCOUNT OF DISTANCE - APPLICANT'S PLACE OF RESIDENCE TO BE TAKEN INTO ACCOUNT

( RULES OF PROCEDURE, ANNEX II, ARTICLE I )

2 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - APPEAL THROUGH OFFICIAL CHANNELS MADE WITHIN THE TIME-LIMIT FOR APPEAL TO THE COURT - TIME-LIMIT FOR APPEAL TO THE COURT PRESERVED

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ARTICLES 90, 91 )

3 . PROCEDURE - PRINCIPAL CLAIM - INADMISSIBILITY ENTAILING THAT OF ANCILLARY CLAIM

4 . PROCEDURE - PLEADINGS - DOCUMENTS PREJUDICIAL TO THIRD PARTIES TO BE REMOVED FROM THE FILE OF THE CASE - CONDITIONS

( RULES OF PROCEDURE, ARTICLE 37 )

Summary

1 . THE EXTENSION OF TIME-LIMITS ON ACCOUNT OF DISTANCE IS DEPENDENT SOLELY ON THE FACTS, THAT IS TO SAY, ON WHERE THE APPICANT IS HABITUALLY RESIDENT . THE PLACE OF RESIDENCE OF THE APPLICANT'S LAWYER CANNOT BE TAKEN INTO CONSIDERATION .

2 . CF . PARA . 1, SUMMARY, JUDGMENT IN JOINED CASES 27 AND 30/64, ( 1965 ) ECR 481 .

IT APPEARS FROM ARTICLES 90 AND 91 OF THE STAFF REGULATIONS, READ TOGETHER, THAT APPEALS THROUGH OFFICIAL CHANNELS ARE SUBJECT TO THE SAME TIME-LIMIT AS APPLIES TO APPEALS TO THE COURT OF JUSTICE, PROVIDED THAT THEY WERE THEMSELVES INSTITUTED WITHIN THE TIME LAID DOWN FOR APPEALS TO THE COURT . IN THE CASE OF A REJECTION OF AN APPEAL THROUGH OFFICIAL CHANNELS, THE DATE ON WHICH THE APPLICANT BECOMES AWARE OF THIS REJECTION CONSTITUTES THE TERMINATION OF THE ADMINISTRATIVE PROCEDURE AND MARKS THE DATE FROM WHICH TIME BEGINS TO RUN IN RESPECT OF THE TIME LIMIT FOR LODGING AN APPEAL TO THE COURT .

*/ 664J0027 /*.

3 . THE INADMISSIBILITY OF A PRINCIPAL CLAIM ENTAILS THAT OF ANY ANCILLARY CLAIM BASED ON IT .

4 . DOCUMENTS CAPABLE OF PREJUDICING THIRD PARTIES NOT INVOLVED IN THE PROCEEDINGS AND UNABLE TO DEFEND THEMSELVES MUST BE REMOVED FROM THE FILE OF THE CASE .

Parties

IN CASE 28/65

FULVIO FONZI, A SCIENTIFIC OFFICER AT THE EAEC COMMISSION, ASSISTED BY MARIO GIULIANO, ADVOCATE AT THE CORTE DI CASSAZIONE, ITALY, AND PROFESSOR IN THE FACULTY OF LAW OF THE UNIVERSITA DEGLI STUDI, MILAN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, ANTONIO MARCHINI-CAMIA, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION :

( A ) FOR THE ANNULMENT OF THE DECISION OF 7 OCTOBER 1964, NOTIFIED BY LETTER ON 12 OCTOBER 1964, ALLOCATING THE APPLICANT TO THE DIRECTORATE-GENERAL FOR PERSONNEL AND ADMINISTRATION IN BRUSSELS;

( B ) FOR THE ANNULMENT OF THE DECISION OF 3 FEBRUARY 1965, NOTIFIED BY LETTER OF 5 FEBRUARY 1965, REJECTING THE APPEAL THROUGH OFFICIAL CHANNELS MADE ON 10 DECEMBER 1964 AGAINST THE ABOVEMENTIONED ALLOCATION;

( C ) FOR PAYMENT OF THE DAILY SUBSISTENCE ALLOWANCE FOR OFFICIALS ON MISSION PROVIDED FOR IN ARTICLE 13 OF ANNEX VII TO THE STAFF REGULATIONS;

( D ) FOR PAYMENT OF DAMAGES;

Grounds

P.490

I - ADMISSIBILITY

A - APPLICATIONS FOR ANNULMENT

THE DEFENDANT ALLEGES THAT THE APPLICATIONS FOR ANNULMENT OF THE DECISION TO ALLOCATE THE APPLICANT TO BRUSSELS, NOTIFIED ON 15 OCTOBER 1964, AND THE DECISION REJECTING THE APPEAL THROUGH OFFICIAL CHANNELS, NOTIFIED ON 7 FEBRUARY 1965, ARE INADMISSIBLE BECAUSE THEY ARE OUT OF TIME . APPLICATION 28/65 WAS NOT, IN FACT, LODGED UNTIL 12 MAY 1965, WHEREAS THE PERIOD OF THREE MONTHS FOR LODGING AN APPEAL PRESCRIBED BY ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS, EXTENDED BY TWO DAYS ON ACCOUNT OF DISTANCE, EXPIRED ON 9 MAY 1965 .

P.491

THE APPLICANT REPLIES THAT THE EXTENSION ON ACCOUNT OF DISTANCE APPLICABLE IN THIS CASE WAS TEN DAYS, NOT TWO, SO THAT THE PERIOD FOR LODGING AN APPEAL DID NOT EXPIRE UNTIL 17 MAY 1965 . IN SUPPORT OF THIS INTERPRETATION HE FIRST CLAIMS THAT, BECAUSE HE WAS BEING KEPT ON IN THE POST TO WHICH HE WAS APPOINTED UNDER THE STAFF REGULATIONS, HE SHOULD BE CONSIDERED AS RESIDENT AT ISPRA AND AS MERELY ON TEMPORARY MISSION TO BRUSSELS . HE GOES ON TO SAY, BASING HIS ARGUMENT ON ARTICLES 37 AND 58 OF THE RULES OF PROCEDURE, THAT IN CALCULATING THE EXTENSION OF TIME ON ACCOUNT OF DISTANCE THE COUNTRY TO BE REFERRED TO IS NOT THE ONE WHERE THE APPLICANT HAPPENS TO BE, BUT THE COUNTRY WHERE THE LAWYER ASSISTING HIM IS RESIDENT AND PRACTISING .

IT IS NOT DISPUTED THAT ON 7 FEBRUARY 1965, THE DATE FROM WHICH THE PERIOD ALLOWED FOR LODGING AN APPEAL BEGINS TO RUN, AND FOR THE WHOLE OF THAT TIME, THE APPLICANT WAS IN FACT WORKING IN BRUSSELS AND NOT AT ISPRA . CONSEQUENTLY, ACCORDING TO THE WORDING OF THE DECISION ON EXTENSION OF TIME-LIMITS ON ACCOUNT OF DISTANCE COMPRISING ANNEX II TO THE RULES OF PROCEDURE, THE APPLICANT WAS HABITUALLY RESIDENT IN BELGIUM BOTH ON 7 FEBRUARY 1965 AND DURING THE SUBSEQUENT MONTHS AND COULD NOT, THEREFORE, ENJOY MORE THAN TWO DAYS' EXTENSION ON ACCOUNT OF DISTANCE . MOREOVER, THE RESULT OF THE EXPRESS WORDING IN THE SAID ANNEX II : ' PARTIES...HABITUALLY RESIDENT ' IS THAT WHAT IS TO BE CONSIDERED IS THE HABITUAL PLACE OF RESIDENCE OF THE PARTIES, NOT OF THEIR LAWYERS .

THE APPEAL THROUGH OFFICIAL CHANNELS, LODGED WITHIN THE PERIOD PRESCRIBED FOR AN APPEAL TO THE COURT, HAS PRESERVED THE TIME-LIMIT UNDER THE STAFF REGULATIONS FOR MAKING AN APPEAL TO THE COURT . THE EXTENSION ON ACCOUNT OF DISTANCE IS DEPENDENT SOLELY ON THE FACTS, THAT IS TO SAY, ON WHERE THE APPLICANT HAS HIS PLACE OF RESIDENCE . ACCORDINGLY THE APPLICANT, BEING HABITUALLY RESIDENT IN BELGIUM, HAD THREE MONTHS AND TWO DAYS WITHIN WHICH TO BRING AN APPEAL TO THE COURT . SINCE THIS PERIOD EXPIRED ON 9 MAY 1965, THE APPLICATIONS FOR ANNULMENT LODGED ON 12 MAY 1965 ARE INADMISSIBLE BECAUSE THEY ARE OUT OF TIME .

B - APPLICATION FOR PAYMENT OF THE DAILY SUBSISTENCE ALLOWANCE FOR OFFICIALS ON MISSION

IN THE CONCLUSIONS IN HIS APPLICATION, THE APPLICANT ASKS THAT THE DEFENDANT BE ORDERED TO PAY HIM THE MISSION ALLOWANCE FOR THE ENTIRE PERIOD OF HIS SERVICE IN BRUSSELS FOLLOWING THE ABOVEMENTIONED DECISION TO TRANSFER HIM .

THIS CLAIM IS OBVIOUSLY DEPENDENT ON THE APPLICATIONS FOR ANNULMENT AND SINCE IT IS ANCILLARY TO THE MAIN APPLICATION IT SHARES ITS FATE AND MUST BE DECLARED INADMISSIBLE .

P.492

THE APPLICANT ALSO ASKS IN HIS REPLY THAT, SHOULD THE COURT, WHILST ANNULLING THE CONTESTED DECISIONS, NOT CONSIDER IT POSSIBLE TO AWARD HIM THE DAILY SUBSISTENCE ALLOWANCE FOR AN OFFICIAL ON MISSION, HE SHOULD NONETHELESS BE AWARDED A CORRESPONDING SUM AS COMPENSATION FOR THE MATERIAL DAMAGE WHICH HE SUFFERED WHEN THE SAID DECISIONS WERE PUT INTO EFFECT .

IT FOLLOWS FROM THE VERY FORM IN WHICH THIS CLAIM IS CAST, WHICH AMOUNTS IN ANY CASE TO A FRESH APPLICATION, THAT IF THE APPLICATIONS FOR ANNULMENT ARE INADMISSIBLE SO TOO MUST BE A CLAIM WHICH IS ANCILLARY TO THE ANNULMENT OF THE CONTESTED DECISIONS . ACCORDINGLY THIS REQUEST MUST BE REJECTED AS INADMISSIBLE .

C - CLAIMS THAT THE DEFENDANT BE ORDERED TO PAY 600 000 FRANCS BY WAY OF DAMAGES

IN THE CONCLUSIONS IN HIS REPLY THE APPLICANT ASKS THE COURT TO AWARD HIM 600 000 FRANCS BY WAY OF DAMAGES FOR THE MATERIAL AND NON - MATERIAL INJURY WHICH HE HAS SUFFERED AND IS YET TO SUFFER AS A RESULT OF THE FALSE STATEMENTS MADE BY THE DEFENDANT CONCERNING THE CONTENT OF THE MINUTES OF THE 249TH MEETING OF THE EAEC COMMISSION ON 24 JUNE 1964 . IN THE COURSE OF THE ORAL PROCEEDINGS ON 6 OCTOBER 1966 THE APPLICANT ALLEGED THAT HIS APPLICATION FOR DAMAGES WAS ALSO JUSTIFIED BY THE FACT THAT HE WAS ORDERED BY THE JUDGMENT OF 8 JULY 1965 TO PAY THREE-QUARTERS OF THE COSTS WHICH HE HAD INCURRED IN CASE 30/64 . THE APPLICANT FURTHER MAINTAINED DURING THE SAME PROCEEDINGS THAT HE WAS ALSO CLAIMING THE DAMAGES ON THE GROUND THAT THE DEFENDANT HAD DEPRIVED HIM OF HIS SCIENTIFIC CAREER .

THE FIRST TWO REQUESTS RELATE BACK TO JOINED CASES 27 AND 30/64 WHICH WERE DISPOSED OF BY THE JUDGMENT OF THE COURT ( FIRST CHAMBER ) OF 8 JULY 1965 . AS A RESULT THEY CAN ONLY BE EXAMINED IN THE CONTEXT OF PROCEEDINGS FOR A REVISION OF THAT JUDGMENT .

AS FOR THE THIRD REQUEST, IT IS A FRESH ISSUE NOT SET OUT IN THE ORIGINAL APPLICATION AND CANNOT THEREFORE BE ENTERTAINED .

ALL THREE REQUESTS MUST ACCORDINGLY BE DECLARED INADMISSIBLE .

II - THE APPLICATION ON A PROCEDURAL ISSUE OF 15 JANUARY 1966

BY AN ORDER OF THE COURT ( FIRST CHAMBER ) OF 10 MARCH 1966 THERE WAS EXCLUDED FROM THE PROCEEDINGS, AS REQUESTED BY THE DEFENDANT, THE DOCUMENT ANNEXED TO THE REPLY AS ITEM NO 23, AND IT WAS ORDERED THAT, FOR THE REST, THE DECISION ON THE PROCEDURAL ISSUE SHOULD BE RESERVED FOR THE FINAL JUDGMENT . IT THEREFORE REMAINS TO EXAMINE THE DEFENDANT'S CONCLUSIONS TO THE EFFECT THAT THE DOCUMENTS CONSTITUTING SCHEDULES 22 AND 34 TO THE REPLY SHOULD BE EXCLUDED FROM THE PROCEEDINGS .

THE INQUIRY BY A PRIVATE DETECTIVE AGENCY INTO THE ACTIVITIES OF EAEC OFFICIALS PRIOR TO TAKING UP THEIR DUTIES ( SCHEDULE 22 TO THE REPLY ) IS CAPABLE OF PREJUDICING THIRD PARTIES NOT INVOLVED IN THE PRESENT PROCEEDINGS AND UNABLE TO DEFEND THEMSELVES . ON THAT GROUND THEREFORE IT MUST BE REMOVED FROM THE FILE .

ON THE OTHER HAND, THE TELEX MESSAGE FROM THE PRESIDENT OF THE STAFF COMMITTEE AT ISPRA TO THE DIRECTOR-GENERAL FOR ADMINISTRATION ( SCHEDULE 34 TO THE REPLY ) IS RELEVANT TO THE PRESENT PROCEEDINGS AND IS MANIFESTLY INCAPABLE OF PREJUDICING THE RIGHTS OF THIRD PARTIES . AS REGARDS THIS DOCUMENT THEREFORE THE DEFENDANT'S REQUEST SHOULD BE REJECTED .

Decision on costs

THE APPLICANT HAS FAILED IN HIS MAIN APPLICATION AND IN APPLICATION 28/65 R ON A PROCEDURAL ISSUE .

THE DEFENDANT HAS BEEN SUCCESSFUL IN ITS OBJECTION OF INADMISSIBILITY OF 15 JUNE 1965 AND IN THE ESSENTIAL CONCLUSIONS OF ITS APPLICATION OF 15 JANUARY 1966 ON A PROCEDURAL ISSUE .

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

HOWEVER, ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT IN ACTIONS BROUGHT BY COMMUNITY OFFICIALS COSTS INCURRED BY INSTITUTIONS SHALL BE BORNE BY THE LATTER .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 28/65 AS INADMISSIBLE;

2 . ORDERS THE REMOVAL FROM THE FILE OF THE CASE OF THE DOCUMENT APPEARING AS SCHEDULE 22 TO THE REPLY;

3 . ORDERS EACH PARTY TO PAY ITS OWN COSTS, BOTH IN THE MAIN ACTION AND IN THE INTERLOCUTORY PROCEEDINGS .