Judgment of the Court (First Chamber) of 28 May 1970. - Max Lacroix v Commission of the European Communities. - Case 30-68.



European Court reports 1970 Page 00301

Danish special edition Page 00057

Greek special edition Page 00317

Portuguese special edition Page 00355



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - APPEAL THROUGH OFFICIAL CHANNELS LODGED WITHIN THE PERIOD FOR APPEALING TO THE COURT - TIME-LIMIT FOR APPEALING TO THE COURT PRESERVED

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ARTICLES 90 AND 91 )

2 . OFFICIALS - GENERAL IMPLEMENTING PROVISIONS LAID DOWN BY THE ADMINISTRATION - GENERAL EXAMINATION BY THE COURT - NOT PERMISSIBLE

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ARTICLE 91 )

3 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - APPEAL - SUBJECT-MATTER - INSUFFICIENT PRECISION - INADMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ARTICLE 91 )

Summary

1 . AN APPEAL THROUGH OFFICIAL CHANNELS INTERRUPTS THE PERIOD FOR MAKING AN APPEAL TO THE COURT OF JUSTICE, PROVIDED THAT IT WAS LODGED WITHIN THE PERIOD FOR MAKING AN APPEAL TO THE COURT AND DEALS WITH SUBSTANTIALLY THE SAME COMPLAINTS .

2 . THE QUESTION WHETHER DECISIONS ASSOCIATED WITH THE DECISION WHICH IS THE SUBJECT-MATTER OF AN APPLICATION AFFECT THE APPLICANT ADVERSELY CAN ONLY BE EXAMINED IN THE CONTEXT OF AN APPLICATION PROPERLY MADE AGAINST THOSE MEASURES .

3 . IN ORDER TO PROTECT THE RIGHTS OF THE DEFENCE AND OF THIRD PARTIES CONCERNED, AN APPLICATION WHICH DOES NOT DEFINE PRECISELY THE MEASURES ALLEGEDLY AFFECTING THE APPLICANT IS TO BE REGARDED AS INADMISSIBLE .

Parties

IN CASE 30/68

MAX LACROIX, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 96, RUE D' ARLON, BRUSSELS, REPRESENTED FIRST BY JACQUES MERCIER, ADVOCATE AT THE COUR D' APPEL, PARIS, AND THEN BY MARCEL SLUSNY, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 20 RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION :

- FOR THE ANNULMENT OF THE DEFENDANT' S DECISION OF 21 MAY 1968 IN SO FAR AS IT DID NOT ASSIGN THE APPLICANT TO A POST IN HIS GRADE AND FOR THE ANNULMENT OF ALL DECISIONS TO APPOINT OR ASSIGN OFFICIALS WHICH AFFECT THE APPLICANT ADVERSELY,

- AND FOR THE PAYMENT OF DAMAGES,

Grounds

1 THE APPLICATION SEEKS ESSENTIALLY ON THE ONE HAND THE PARTIAL ANNULMENT OF THE DECISION OF 21 MAY 1968 WHEREBY THE COMMISSION, PURSUANT TO ARTICLE 8 OF REGULATION NO 259/68, ASSIGNED THE APPLICANT TO A POST CORRESPONDING TO A CAREER BRACKET DIRECTLY BELOW THE CAREER BRACKET FOR HIS GRADE AND, ON THE OTHER HAND, THE ANNULMENT OF A NUMBER OF DECISIONS TO APPOINT OTHER OFFICIALS TO POSTS IN GRADES A 2 AND A 3 .

2 THE DEFENDANT CLAIMS THAT THE APPLICATION FOR THE ANNULMENT OF THE DECISION OF 21 MAY 1968 REFERRED TO ABOVE IS OUT OF TIME BECAUSE IT WAS ONLY LODGED ON 11 NOVEMBER 1968, THAT IS, MORE THAN THREE MONTHS AFTER NOTIFICATION OF THE CONTESTED DECISION .

3 HOWEVER, THE APPLICANT REQUESTED THE PRESIDENT OF THE COMMISSION IN A LETTER OF 14 AUGUST 1968 TO VARY THE DECISION OF 21 MAY AS SOON AS POSSIBLE AND TO ASSIGN HIM TO A VACANT POST IN HIS GRADE .

4 ALTHOUGH IT IS TRUE THAT THIS LETTER DID NOT EXPRESSLY REQUEST THE WITHDRAWAL OF THE DECISION IN QUESTION, IT IS, HOWEVER, QUITE APPARENT FROM IT THAT THE APPLICANT WAS TRYING BY THIS APPROACH THROUGH OFFICIAL CHANNELS TO OBTAIN AN AMICABLE SETTLEMENT OF HIS COMPLAINTS .

5 IN THESE CIRCUMSTANCES THE PERIOD FOR LODGING AN APPLICATION AGAINST THE DECISION OF 21 MAY 1968 MUST BE DEEMED TO HAVE BEEN INTERRUPTED BY THE LETTER OF 14 AUGUST 1968 .

6 MOREOVER THE APPLICANT LODGED HIS APPLICATION AS SOON AS HE RECEIVED THE REPLY CONTAINED IN A LETTER FROM THE PRESIDENT OF THE COMMISSION DATED 6 NOVEMBER 1968 .

7 THEREFORE THE APPLICATION AGAINST THE DECISION OF 21 MAY 1968 IS ADMISSIBLE .

8 THE APPLICATION SEEKS THE PARTIAL ANNULMENT OF THE DECISION OF 21 MAY 1968 IN SO FAR AS IT DID NOT ASSIGN THE APPLICANT TO A POST IN HIS GRADE .

9 WITHOUT FORMULATING OTHER COMPLAINTS AGAINST THE LEGALITY OF THE CONTESTED MEASURE, THE APPLICATION SEEKS TO ESTABLISH THAT THERE WAS NO NEED TO ASSIGN THE APPLICANT TO A POST BELOW HIS GRADE BECAUSE THE COMMISSION COULD HAVE APPOINTED HIM TO A POST IN HIS GRADE ON 21 MAY 1968 AND ON SEVERAL SUBSEQUENT OCCASIONS .

10 THE APPLICANT CLAIMS THAT THE CONTESTED DECISION WAS THEREFORE NOT NECESSITATED BY THE INTERESTS OF THE SERVICE .

11 UNDER ARTICLE 8 OF REGULATION NO 259/68, BEFORE TAKING A DECISION UNDER ARTICLE 4 ( 1 ) OF THIS REGULATION ( TERMINATION OF THE SERVICE OF AN OFFICIAL ), THE COMMISSION MAY IN THE INTERESTS OF THE SERVICE REQUEST THE OFFICIAL CONCERNED TO STATE WITHIN ONE MONTH WHETHER HE WILL ACCEPT TRANSFER TO A POST CORRESPONDING TO THE CAREER BRACKET IMMEDIATELY BELOW THAT APPLICABLE TO HIS GRADE .

12 IT FOLLOWS FROM THIS THAT THE ALTERNATIVE TO THE TRANSFER OF THE APPLICANT TO A POST BELOW HIS GRADE WAS NOT TO APPOINT HIM TO A POST CORRESPONDING TO THAT GRADE BUT TO ADOPT A MEASURE TERMINATING HIS SERVICE .

13 FACED WITH THIS OPTION, THE APPLICANT ACCEPTED THE APPLICATION OF ARTICLE 8 SO THAT THE COMMISSION WAIVED THE APPLICATION OF ARTICLE 4 .

14 IT FOLLOWS THAT THE APPLICATION IS DIRECTED NOT ONLY AGAINST THE CONTESTED DECISION BUT ALSO AGAINST THE PREVIOUS IMPLIED DECISION POSSIBLY TO APPLY ARTICLE 4 WITH REGARD TO HIM, ON THE GROUND THAT NEITHER WAS JUSTIFIED IN THE INTERESTS OF THE SERVICE .

15 IT FOLLOWS THAT THE REQUEST FOR PARTIAL ANNULMENT IS NOT BASED ON THE ILLEGALITY OF THE CONTESTED DECISION ITSELF, BUT ON THE ILLEGALITY OF A SERIES OF DECISIONS ALLEGEDLY ASSOCIATED WITH IT AND WHICH RELATE TO THE REORGANIZATION OF DEPARTMENTS NECESSITATED BY THE MERGER OF THE EXECUTIVES AND WHICH THE APPLICANT CLAIMS CONTRIBUTED AS A WHOLE TO DEPRIVE HIM OF HIS RIGHTS .

16 HOWEVER, THE QUESTION WHETHER THOSE ASSOCIATED DECISIONS AFFECTED THE APPLICANT ADVERSELY AND INFRINGED HIS RIGHTS UNDER THE STAFF REGULATIONS CAN ONLY BE EXAMINED IN THE CONTEXT OF AN APPLICATION PROPERLY MADE AGAINST THOSE MEASURES .

17 IF NOT, THE COURT WOULD BE LED TO A GENERAL EXAMINATION OF THE NEED AND ADVISABILITY NOT ONLY OF ALL THE MEASURES INVOLVED BUT ALSO OF THE WHOLE POLICY WHICH THE COMMISSION FELT IT SHOULD ADOPT IN APPLYING REGULATION NO 259/68 .

18 SUCH AN EXAMINATION WOULD EXCEED THE LIMITS OF THE REVIEW OF LEGALITY WHICH ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS EMPOWERS THE COURT TO EFFECT .

19 THEREFORE THE APPLICATION MUST BE DISMISSED IN SO FAR AS IT IS DIRECTED AGAINST THE DECISION OF 21 MAY 1968 .

20 THE DEFENDANT ALSO CLAIMS THAT THE APPLICATION FOR ANNULMENT IS INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST A NUMBER OF DECISIONS TO APPOINT OFFICIALS OTHER THAN THE APPLICANT TO POSTS IN GRADE A 2 AND A 3 .

21 IN FACT THE SUBJECT-MATTER OF THIS PART OF THE APPLICATION IS NOT INDICATED WITH SUFFICIENT PRECISION TO ENABLE IT TO BE EXAMINED PROFITABLY .

22 TO BEGIN WITH, SO FAR AS THE ORIGINATING APPLICATION IS CONCERNED, NOT ONLY WAS THERE AN OMISSION IN BREACH OF ARTICLE 22 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC AND OF ARTICLE 19 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC AND EAEC TO APPEND IN AN ANNEX THERETO THE MEASURES THE ANNULMENT OF WHICH WAS SOUGHT, BUT ONLY A GENERAL INDICATION OF THESE MEASURES WAS GIVEN .

23 FURTHERMORE, IN THE REPLY THE COURT WAS REQUESTED TO EXTEND THE SUBJECT-MATTER OF THE APPLICATION TO THE APPOINTMENTS MADE ON THE BASIS OF THE VACANCY NOTICES RELATING TO POSTS IN GRADE A 3 WHICH WERE PUBLISHED SINCE THE APPLICATION WAS LODGED, SO THAT THE SUBJECT-MATTER OF THE APPLICATION IS NOT MERELY INDEFINITE BUT COULD BECOME EVEN WIDER DURING THE COURSE OF THE ACTION .

24 BESIDES, ALTHOUGH THE APPLICANT DID INDICATE THAT, OF THE MEASURES WHICH HE HAS SO GENERALLY DEFINED, HE ONLY INTENDS TO CONTEST THOSE WHICH AFFECT HIM ADVERSELY, HE HAS STILL HOWEVER FAILED TO DEFINE THEM PRECISELY AND HAS THEREBY LEFT THE COURT THE TASK OF FINDING OUT WHICH OF THE MEASURES DESCRIBED ARE REALLY THE SUBJECT OF THE APPLICATION .

25 CLEARLY, IN ORDER TO PROTECT THE RIGHTS OF THE DEFENCE AND OF THIRD PARTIES CONCERNED SUCH IMPRECISE REQUESTS MUST BE REGARDED AS INADMISSIBLE .

26 ALTHOUGH IT IS TRUE THAT DURING THE ORAL PROCEDURE THE APPLICANT GAVE SOMEWHAT MORE SPECIFIC FORM TO HIS APPLICATION BY POINTING TO SOME DECISIONS WHICH HE HAD SPECIALLY IN MIND, NEVERTHELESS, AS THIS EVENT TOOK PLACE IN THE LAST STAGE OF THE PROCEEDINGS IT CANNOT RECTIFY THE OMISSIONS WHICH HAVE BEEN DESCRIBED .

27 THEREFORE THE SECOND HEAD OF THE APPLICATION IS INADMISSIBLE .

28 THUS THE APPLICATION MUST BE DISMISSED IN ITS ENTIRETY .

Decision on costs

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

30 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

31 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT AGAINST THEM BY SERVANTS OF THE COMMUNITIES .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .