OPINION OF MR ADVOCATE-GENERAL

DUTHEILLET DE LAMOTHE

DELIVERED ON 3 FEBRUARY 1971

Mr President,

Members of the Court,

The applicant, who is an Austrian by birth, married an official in the service of the Ispra establishment of the Joint Nuclear Research Centre on 16 August 1965.

As was natural, he looked for a job which would not separate him from his wife and he succeeded on 20 September 1965 in being appointed by the same administration and he later became established there.

On his appointment he had stated that his permanent residence was the Austrian town of Graz; consequently, he was entitled in accordance with the Staff Regulations

— first, to a special daily subsistence allowance,

— secondly, to what are called ‘notional removal expenses’, in other words a payment enabling the newly recruited servant to acquire part of his furniture locally.

But it came to the notice of the administration that in actual fact when he was recruited on 20 September 1965 he had been living with his wife in Ispra since his marriage.

From the social point of view this could certainly only be a matter for congratulation but it changed the whole situation from the point of view of the administration. He was not in fact entitled in these circumstances to the above allowances and payments.

The administration informed him of this by decision of 27 June 1966.

Mr Kschwendt then submitted to the administration a series of requests or complaints which were all rejected by successive implied or express decisions. He asks the Court to annul the latest of these decisions, that of 20 March 1970.

There seems to me to be no doubt that this application is inadmissible on the ground that it is out of time and the only point which is open to discussion is, in my opinion, the legal basis for this inadmissibility, for I can see two possibilities.

The simplest solution is perhaps to find that the decision of 20 March 1970 simply confirms an implied decision rejecting previous representations submitted to the administration.

This decision of 20 March 1970 rejects in fact a request of 7 March 1967.

According to Article 91(2) of the Staff Regulations, Mr Kschwendt ought to have considered this previous approach of 7 March 1967 as rejected on 9 or 10 May 1967 and to have lodged his appeal to the Court before 11 or 12 July 1967.

But this appeal was not registered until 6 August 1970, in other words almost three years later.

It is true that the applicant's adviser has asked you to re-establish to his advantage the case-law of the French Conseil d'État which the latter has abandoned whereby when an administrative decision states that it has been taken ‘after further examination’ or ‘after a new inquiry into the case’, this decision does not simply confirm previous implied or express decisions having the same effect.

I cannot advise you too strongly not to follow this reasoning.

In fact, the French case-law invoked was very largely originally war-time case-law whereby the French Conseil d'État sought to enable applicants called up for military service during the 1914-1918 war to avoid being confronted with expired time-limits for appeal, against which it was legally difficult to give relief.

It is true that the French Conseil d'État continued to apply this same case-law between the two wars and even for several years after the Second World War.

But it considerably restricted its scope in the field of public administration because this benevolent case-law only applied in respect of decisions which did not confer rights on other officials, which excluded from its ambit the principal matters relating to actions against the public administration (appointments, promotions, and, in most cases removals from office and dismissals).

The French Conseil d'État later abandoned this case-law declaring that the expression ‘after further examination’ which appears in many letters of reply to appeals submitted by officials is in most cases only a formal expression and that in any case it was inadmissible that the application of procedural time-limits should depend on the form and not on the substance of the administrative correspondence.

I therefore ask you without hesitation to consider, as you have already decided in your judgments of 14 April 1970, Nebe v Commission [1970] ECR 145 and of 25 June 1960, Elz v Commission [1970] ECR 507 that since the express decision contested merely confirmed an implied decision which had already become final, the appeal against the express decision is out of time.

But if you wish, you may also dismiss the application as barred on another legal basis.

In fact, the first decision refusing the applicant the right to the allowances and payments which he claims is dated 27 June 1966.

The applicant maintains that the previous appeals which he has successively submitted to the administration were able to preserve the period for lodging an appeal to the Court until 6 August 1970.

In my opinion, this argument cannot be accepted for two reasons:

1. The preservation of the period for lodging an appeal to the Court by previous representations submitted to the author of the act, or, as the Staff Regulations expressly provide, to the appointing authority (the two approaches being of an identical nature) is in itself a concept which departs from the general principles of procedure. It most certainly exists in the system of appeals to the court in the administrative law of certain Member States but it is not expressly provided for either in the Staff Regulations or in the Rules of Procedure. Your case-law has recognized it, but it must not be extended too far.

2. In so far as it is recognized that a previous approach to the administration preserves the period for lodging an appeal to the Court, it must be recognized, as it is in all the bodies of case-law of Member States which have followed this line of thought, that it can be preserved once and once only. Unless that were so, any applicant would be able through successive preliminary representations to the administration (approaches to the author of the act or to the appointing authority) to threaten the stability of legal situations which the creation of tíme-limits for lodging appeals is specifically intended to establish and to guarantee. If I may make a comparison, I would say that with regard to time-limits for lodging appeals a previous approach to the administration (whoever the addressee may be) is rather like a match: it can only be used once.

This second reason also makes it clear that Mr Kschwendt's application is undoubtedly inadmissible. Therefore, with no hesitation, I advise the Court

— to dismiss Mr Kschwendt's application as inadmissible; and