(b)

It is common ground that following the rejection of his request the applicant lodged a complaint dated 8 February 1982 in due time. However, the Council takes the view that the complaint had already been rejected by Decision No 211/82 of 23 March 1982. That decision confirmed the decision of 29 January 1982 which had formed the subjectmatter of the applicant's complaint. Therefore the application had to be lodged within three months (in addition to the extension on account of distance for Belgium), that is to say, before the end of June 1982. It contends that even if the decision of 23 March is not regarded as a decision on the applicant's complaint, the latter must in any event be regarded as having been impliedly rejected on 9 June 1982 (Article 90 (2), last sentence). If that is the case, however, the application should have been lodged at the latest, having regard to the extension on account of distance for Belgium, on 11 September 1982. Thus it is established that the application lodged on 21 September 1982 was in either event out of time. (aa) That view is certainly correct in so far as the applicant was seeking the transfer of part of his salary from February 1982 and compensation (on the basis of the difference between the normal exchange-rate and that applicable under Article 17 of Annex VII to the Staff Regulations) for the fact that transfers had not been made under the abovementioned provision in February and March 1982. It is in fact quite clear from Decision No 211/82 that it authorizes transfers of DM 2000 only from April 1982; the request for such an authorization for February and March 1982 is therefore rejected by implication, though not expressly. For that reason the applicant should have brought proceedings before the Court of Justice on that point before the end of June 1982; it is obvious that his claim could not be pursued by means of a complaint which was not lodged until autumn 1982. The same applies to the claim for compensation in respect of February and March (to which reference had already been made in the complaint of 8 February). Since its sole purpose is to restore the position which would have existed if his request of January 1982 had been granted he cannot be permitted to achieve that result by means of a claim for compensation if he failed to take action in due time against the measure which allegedly caused the damage. Were it otherwise, actions based on the liability of the institutions could be used to circumvent the time-limits laid down by the Staff Regulations. (bb) In addition, I accept the Council's view that Décision No. 211/82 contained an implied rejection of the applicant's complaint concerning his request for the application of Article 17 (2) (b) of Annex VII to the Staff Regulations. It is true that in one place that decision refers quite generally to Article 17 of Annex VII to the Staff Regulations. However, the fact that the decision was taken with reference to Article 17 (2) (c) is made clear by the reference to Article 5 of the rules for implementing Article 17 (which refers to Article 17 (2) (c) alone), by the stress on the fact that the authorization of transfers was made ‘à titre tout à fait exceptionnel’ (echoing the language of Article 17 (2) (c) of Annex VII), and by the limitation of the effect of the decision to a period of one year, which would have been incomprehensible if the decision had been taken under Article 17 (2) (b), in view of the unexpired period of repayment of about 10 years which still remained. In any event that is also the way in which the applicant interpreted the decision at the time, as is apparent from his memorandum of 29 May 1982. He points out in that memorandum that Article 5 of the rules for implementing Article 17, to which the decision refers, relates to subparagraph (c), and continues: ‘je persiste de mon côté à penser que ma demande répond pleinement aux critères de la même disposition sous (b), de sorte qu'à mon avis aussi le seul paragraphe (b) aurait pu être appliqué’ [for my part I remain of the belief that my request fully satisfies the criteria of subparagraph (b) of that provision, so that in my opinion only subparagraph (b) was applicable]. In addition he mentions that he expects that Article 6 of the implementing rules will be applied to him by analogy, in other words, he sees that that provision is not directly relevant precisely because it refers only to transfers under Article 17 (2) (a) and (b). There are therefore compelling reasons for concluding that the question whether the applicant was eligible for application of Article 17 (2) (b) of Annex VII to the Staff Regulations could only be resolved in proceedings brought before the Court at the latest three months after the adoption of Decision No 211/82 of 23 March 1982, and that a complaint submitted in September 1982 could not be used for that purpose. Even if it is conceded in favour of the applicant that Decision No 211/82 of 23 March 1982 did not contain a rejection of his complaint of 8 February 1982, that complaint was rejected by implied decision at the latest on 9 June 1982 by effluxion of time (last sentence of Article 90 (2) of the Staff Regulations). In that case the period within which proceedings must be brought expired on 11 September 1982. The application lodged on 21 September is therefore out of time on that basis as well. Decision No 629/82 of 18 June 1982 cannot be regarded in any event as a decision on the applicant's complaint of 8 February 1982. Nor is there any case for saying that Decision No 629/82 made it possible to apply Article 91 (3) of the Staff Regulations, which provides: ‘... nevertheless, where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh.’ That argument fails for the simple reason that the aforementioned decision nowhere contains an express rejection of the complaint relating to the application of Article 17 (2) (b) of Annex VII to the Staff Regulations, but — if we leave aside point 2 of that decision and the authorization it contains — only provides for the withdrawal of the authorization in Decision No 211/82 (which was based on Article 17 (2) (c)). Another consideration arises from the applicant's attempt in these proceedings to give Decision No 211/82 a different interpretation from the one he gave it in his memorandum of 29 May 1982. As far as the Council was concerned (as is clear at least from the memorandum dated 26 July 1982, although there are other grounds for that view), Decision No 211/82 was adopted as a provisional measure to compensate for the measures adopted in Belgium in December 1981 in relation to currency convertibility. The applicant, however, maintains that that was unnecessary because for the purpose of meeting obligations to pay fixed instalments in a foreign currency it would also have been possible for him to be given authorization for more than 25% of his salary in Belgian francs to be transferred by a Belgian bank at the controlled rate (a possibility of which he himself had taken advantage, to the knowledge of the Council's administration, on 9 March 1983). He adds that in any event it was not appropriate in his case to have recourse to Article 17 (2) (c) since that provision envisages only isolated transfers (whereas the applicant had standing commitments) and because it would not have permitted a transfer by an official of Netherlands nationality in German marks. Furthermore, in view of the fact that such a departure from the provisions of the Staff Regulations could not have been justified on grounds of urgency (the effect of the aforementioned Belgian measures could have been obviated in another way, by payments in convertible francs), and the fact that only Article 17 (2) (b) entitled the applicant to have transfers made in German marks, the only conclusion to be drawn is that Decision No 211/82 was in fact based on subparagraph (b) and that for that reason it did not contain an implied rejection of his complaint. Notwithstanding those arguments, it must be said that the facts I have stated above place it beyond doubt that Decision No 211/82 was actually based on Article 17 (2) (c). Similarly, it is certain — and here I agree with the Council — that whether Article 17 (2) (c) could have been applied in the applicant's favour is not significant for the purposes of determining the admissibility of an application based on Article 17 (2) (b). The only relevant point is that that provision was intended and that it was thereby made clear that an application of Article 17 (2) (b) could not be considered in the applicant's case. Finally, it is also clear from this that the applicant cannot argue that his action is admissible on the basis of the judgment in Case 54/77 ( 1 ) (the judgment states that where the decision initially complained of has been amended the period for lodging an application is extended and begins to run only after a reasoned and definitive decision on the applicant's claim). In that case, which related to the withdrawal of an expatriation allowance, the original negative decision was subsequently amended by the grant of a differential allowance ad personam so that it was in fact possible to say that the decision to withdraw the expatriation allowance had been reconsidered. In this case, however, the facts are different because Decision No 211/82 did nothing to alter the refusal of the request based on Article 17 (2) (b) but instead confirmed it and confined itself by the same token to the adoption of another measure under Article 17 (2) (c), which was in turn rescinded by Decision No 629/82. In the light of that it is difficult to maintain that the time-limit for challenging the refusal of the request based on Article 17 (2) (b) should be calculated from the adoption of Decision No 629/82, which did not express a position on the applicant's actual request.