Judgment of the Court (First Chamber) of 4 April 1973. - Domenico Angelini v European Parliament. - Case 31-72.



European Court reports 1973 Page 00403

Greek special edition Page 00509

Portuguese special edition Page 00181



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - NON-CONTENTIOUS PROCEDURE - COMMENCEMENT - REQUEST STARTING TIME RUNNING - ABSENCE OF SUCH EFFECT

( STAFF REGULATIONS, ARTICLE 90, ARTICLE 91 )

2 . OFFICIALS - FORMER ECSC STAFF REGULATIONS - APPLICATION FOR CALCULATION OF PENSION

3 . OFFICIALS - CONTRACTUAL EMPLOYEES - TRANSFER TO STAFF REGULATIONS - PREVIOUS CONTRACT - EFFECTS - RENUNCIATION

Summary

1 . A LETTER FROM AN OFFICIAL, INTENDED TO DRAW THE ATTENTION OF THE COMPETENT AUTHORITY TO THE RIGHTS HE CLAIMS TO POSSESS IN RELATION TO THE AMOUNT OF HIS PENSION WHICH HAS NOT YET BEEN CALCULATED, CANNOT BE REGARDED AS A REQUEST WHICH STARTS TIME RUNNING SO AS TO GIVE RISE TO AN IMPLIED DECISION OF REFUSAL .

2 . THE QUESTION WHETHER THE FORMER ECSC STAFF REGULATIONS, IN FORCE UNTIL 1 JANUARY 1962, ARE WHOLLY OR PARTLY APPLICABLE TO AUXILIARY STAFF WHO BECAME SUBJECT TO THE EEC STAFF REGULATIONS ON 1 JANUARY 1962, CONCERNS THE MERITS OF THE DISPUTE AND IS NOT NECESSARILY LINKED WITH THE ESTABLISHMENT OF THE APPLICANT IN GRADE A 3 ON 1 JANUARY 1962 .

3 . THE TRANSITION FROM A CONTRACTUAL RELATIONSHIP TO A RELATIONSHIP GOVERNED BY THE STAFF REGULATIONS IMPLIES, IN THE ABSENCE OF ANY CONTRARY PROVISION, THE RENUNCIATION OF THE EFFECTS OF THE PREVIOUS CONTRACT .

Parties

IN CASE 31/72

DOMENICO ANGELINI, OFFICIAL OF THE EUROPEAN PARLIAMENT, APPLICANT REPRESENTED BY GIANCARLO LA SCALA, ADVOCATE AT MILAN, AND HAVING CHOSEN HIS ADDRESS FOR SERVICE IN LUXEMBOURG IN THE CHAMBERS OF MAITRE V . BIEL, 71, RUE DES GLACIS, APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY GENERAL, H . R . NORD, ASSISTED BY AGOSTINO GAMBINO, ADVOCATE AT ROME, AND HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE SEAT OF THE EUROPEAN PARLIAMENT, KIRCHBERG, C/O THE SECRETARY GENERAL,

Subject of the case

APPLICATION FOR ANNULMENT OF A DECISION OF THE PRESIDENT OF THE EUROPEAN PARLIAMENT OF 7 MARCH 1972, REJECTING THE REQUEST MADE IN A LETTER OF 4 JANUARY 1973 WHEREBY THE APPLICANT SOUGHT, FIRST, THE CALCULATION OF HIS PENSION ON THE BASIS OF THE TRANSITIONAL PROVISIONS OF THE OLD ECSC STAFF REGULATIONS AND, SECOND, THE REVISIONS OF HIS CLASSIFICATION WITH EFFECT FROM 1 JANUARY 1962 IN GRADE A 3, TAKING ACCOUNT OF THE STEP WHICH HE HAD HELD PREVIOUSLY IN GRADE A 4 .

Grounds

1 BY HIS APPLICATION OF 6 JUNE 1972, WHICH REACHED THE COURT' S REGISTRY ON 12 JUNE 1972, THE APPLICANT INSTITUTED PROCEEDINGS FOR THE ANNULMENT OF A DECISION OF THE PRESIDENT OF THE EUROPEAN PARLIAMENT OF 7 MARCH 1972 REJECTING HIS CLAIM OF 4 JANUARY 1972 WHEREBY THE APPLICANT SOUGHT TO HAVE HIS PENSION CALCULATED ON THE BASIS OF THE ( MORE FAVOURABLE ) TRANSITIONAL PROVISIONS OF THE OLD ECSC STAFF REGULATIONS AND TO OBTAIN, WITH EFFECT FROM 1 JANUARY 1962, THE BENEFIT IN GRADE A 3 OF THE STEPS WHICH HE HAD REACHED BY THAT DATE IN HIS FORMER GRADE A 4 .

ADMISSIBILITY

2 THE DEFENDANT PLEADS IN THE FIRST PLACE THAT THE PROCEEDINGS ARE INADMISSIBLE, BECAUSE THEY SHOULD HAVE BEEN DIRECTED AGAINST THE IMPLIED DECISION OF REFUSAL, TO BE INFERRED FROM THE DEFENDANT' S FAILURE TO TAKE A DECISION WITHIN TWO MONTHS IN REPLY TO THE CLAIM PUT FORWARD IN THE LETTER OF 4 JANUARY 1972 .

3 THIS TIME LIMIT EXPIRED ON 5 MARCH 1972 . THE DEFENDANT EXPRESSLY REJECTED THE APPLICANT' S CLAIM BY A LETTER OF 7 MARCH 1972 . THE LETTER OF 4 JANUARY 1972, INTENDED TO DRAW THE COMPETENT AUTHORITY' S ATTENTION TO THE RIGHTS TO WHICH THE APPLICANT CONSIDERED HIMSELF ENTITLED, CONCERNING THE AMOUNT ( WHICH HAD NOT YET BEEN CALCULATED ) OF HIS PENSION, CANNOT BE REGARDED AS A REQUEST WHICH STARTS TIME RUNNING SO AS TO GIVE RISE TO AN IMPLIED DECISION OF REFUSAL . THE APPLICANT WAS THEREFORE RIGHT TO BRING PROCEEDINGS AGAINST THE EXPRESS DECISION OF 7 MARCH 1972; THE TIME LIMIT FOR THE PROCEEDINGS MUST BE CALCULATED FROM THE NOTIFICATION OF THAT DECISION .

4 THE DEFENDANT PLEADS IN THE SECOND PLACE THAT, EVEN IF THIS IS SO, THE PROCEEDINGS ARE TIME-BARRED BECAUSE THEY WERE BROUGHT OUTSIDE THE THREE MONTHS TIME LIMIT .

5 BECAUSE THE APPLICANT RESIDED IN ITALY, THE TIME LIMIT MUST BE INCREASED BY 10 DAYS IN ACCORDANCE WITH ARTICLE 1 OF ANNEX II TO THE RULES OF PROCEDURE, AND THEREFORE EXPIRED AT THE EARLIEST ON 18 JUNE 1972 . THIS PLEA OF INADMISSIBILITY MUST THEREFORE BE DISMISSED .

6 THE DEFENDANT GOES ON TO ARGUE THAT THE PROCEEDINGS ARE INADMISSIBLE BECAUSE THEY SEEK TO RE-OPEN THE VALIDITY OF ACTS WHICH HAVE BECOME FINAL, AND WHICH THE APPLICANT DID NOT ATTACK AT THE APPROPRIATE TIME .

7 AS REGARDS THE FIRST PART OF HIS CLAIM, THE APPLICANT ARGUES THAT HIS PENSION SHOULD BE CALCULATED ON THE BASIS OF THE PROVISIONS OF THE ECSC STAFF REGULATIONS IN FORCE UNTIL 1 JANUARY 1962 . THE QUESTION WHETHER THESE REGULATIONS ARE, IN WHOLE OR IN PART, APPLICABLE TO AUXILIARY SERVANTS WHO WERE BROUGHT UNDER THE EEC STAFF REGULATIONS ON 1 JANUARY 1962, CONCERNS THE MERITS OF THE DISPUTE; CONTRARY TO THE DEFENDANT' S ARGUMENTS, THIS QUESTION IS NOT NECESSARILY LINKED TO THE APPLICANT' S ESTABLISHMENT IN GRADE A 3 UNDER THE EEC STAFF REGULATIONS ON 1 JANUARY 1962 . THE PROCEEDINGS ARE ADMISSIBLE IN THIS RESPECT .

8 THE PROCEEDINGS ARE DESIGNED, IN THE SECOND PLACE, TO GIVE THE APPLICANT, WITH EFFECT FROM 1 JANUARY 1962, THE BENEFIT IN GRADE A 3 OF THE STEPS WHICH HE CLAIMS TO HAVE REACHED BY THAT DATE IN GRADE A 4 .

9 IF THE APPLICANT QUESTIONED THE LEGALITY OF THE TERMS ON WHICH HE WAS ESTABLISHED WITH EFFECT FROM 1 JANUARY 1962, BY A DECISION OF 13 DECEMBER OF THE SAME YEAR, HE SHOULD HAVE SOUGHT THE ANNULMENT OF THAT DECISION WITHIN THE PRESCRIBED TIME LIMIT . HIS PRESENT PROCEEDINGS ARE, FROM THAT POINT OF VIEW, TIME-BARRED AND THEREFORE INADMISSIBLE .

MERITS

10 THE APPLICANT ARGUES THAT THE CALCULATION OF HIS PENSION SHOULD TAKE INTO ACCOUNT THE PROVISIONS OF THE STAFF REGULATIONS OF THE COAL AND STEEL COMMUNITY IN FORCE UNTIL 1 JANUARY 1962 .

11 HOWEVER, BEFORE THE APPLICANT WAS BROUGHT UNDER THE EEC STAFF REGULATIONS AND ESTABLISHED AS AN OFFICIAL OF THE EUROPEAN PARLIAMENT, HE WAS NEVER SUBJECT TO THE STAFF REGULATIONS OF THE ECSC, BUT WAS EMPLOYED AS AN AUXILIARY SERVANT ON A CONTRACTUAL BASIS . NOTHING PREVENTED THIS CATEGORY OF SERVANTS, AT THE MOMENT WHEN THEY WERE BROUGHT UNDER THE NEW STAFF REGULATIONS, FROM WAIVING THEIR RIGHTS ( INCLUDING THEIR ACQUIRED RIGHTS ) UNDER THEIR PREVIOUS CONTRACTS, IN ORDER TO OBTAIN INSTEAD THE BENEFITS OF THE STAFF REGULATIONS .

12 SUCH A WAIVER MUST, IN THE ABSENCE OF PROVISIONS TO THE CONTRARY, WHICH DO NOT EXIST IN THE PRESENT CASE, BE IMPLIED FROM THE TRANSITION FROM A CONTRACTUAL RELATIONSHIP TO A RELATIONSHIP GOVERNED BY THE STAFF REGULATIONS, AND WAS MOREOVER CONFIRMED BY THE APPLICANT' S EXPRESS WAIVER ON 2 JANUARY 1963 OF THE CLAUSES OF THE CONTRACT WHICH PREVIOUSLY EXISTED BETWEEN HIM AND THE EUROPEAN PARLIAMENT . THE PROCEEDINGS MUST THEREFORE BE DISMISSED ON THIS POINT .

Decision on costs

13 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANT HAS BEEN UNSUCCESSFUL . HOWEVER, ACCORDING TO ARTICLE 70 OF THE RULES OF PROCEDURE, COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THOSE INSTITUTIONS .

Operative part

THE COURT ( FIRST CHAMBER )

1 . DISMISSES THE ACTION .

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .