4.

The applicant maintains, and this is his most important argument, that he was misled by a letter from an authority working for his institution dated 31 March 1970, and he was notified in that letter that it was envisaged that these rules would be altered so as to be favourable to his argument and that letter finished with the following sentence: ‘I would therefore ask you to be so good as to wait a little longer for the final solution of this question. When the Heads of Administration have come to their decision you will be officially informed’. it is certain that, as the applicant maintains, this letter was likely to mislead him as regards the beginning of the period for lodging an appeal. But the question is whether that fact enables the Court to remove the bar to the applicant's lodging an appeal. I do not think so. I was surprised to near Mr Müllers' representative claim that French caselaw enables the Court to remove the bar to the applicant's lodging an appeal in such a case. In fact all French caselaw goes against this. The French Conseil d'État in particular considers that since time-limits for lodging appeals are a matter of public policy it does not have the right to lift the bar on the applicant's lodging an appeal and that administrative courts on the contrary must even raise objections to this bar of their own motion. The judgment quoted the other day in the oral procedure—French Conseil d'État 7 May 1954, Société Chocolaterie Fine du Rhone, Recueil du Conseil d'État français, page 260 — is one of many judgments which apply this caselaw. As for the passage from the treatise of Messrs Aubry and Drago, to which reference has been made, this militates against the applicant's argument. These authors show in fact how the French Conseil d'État has upheld its case-law, even in cases where it was subject to the keenest criticism from the point of view of fairness and how this situation has led the legislature to intervene in certain very special cases. Among these special cases there is one recent case which is particularly significant. The decisions of the Minister of Ex-Servicemen on pension rights of Frenchmen who were deported to Germany during the war involved a printed notice giving those concerned incorrect information as to the period within which they could lodge an appeal to contest decisions which fixed their rights before administrative courts. In spite of the enormity of the mistake made by the Administration and in spite of the very serious consequences that it could have had for thousands of war victims, the French Conseil d'État, giving a ruling in proceedings brought before them, raised the objection of the bar which followed from the law to the applications of those concerned. However, they were, like everyone else, aware of the injustice of this solution and acting as an Administrative Assembly it suggested to the Government that they ask Parliament to pass a special law enabling courts in this particular case to lift the bar on the applicants making an appeal which they had unwittingly fallen foul of and this was done. The question is whether solutions of the same type should be applied to proceedings brought by the European Administration. I would perhaps have hesitated to suggest it to the Court, but the Court has already decided this in its judgment of 14 December 1965 in the Pfloeschner case, [1965] ECR 981, in accordance with the opinion of Mr Advocate-General Gand. For several reasons I am of the opinion that you should uphold this case-law. (a) The time-limits for lodging appeals are a matter of public policy, as you have already held on other occasions. (b) In contrast to certain national rights, there is no regulation which provides for the general power of the Court of Justice to lift a bar on the applicants making an appeal which relates to time-limits for lodging an appeal. This power is only given to the Court by Article 42 of the Staff Regulations in two very specific and very clearly defined situations: unforeseeable circumstances or a case of force majeure. In my opinion it is impossible to give these general or legal concepts a wide interpretation for their application to procedural matters which is incompatible with their field of application in other spheres. Therefore I do not think that the letter of 31 March 1970, however unfortunate, can have the effect of authorizing you to lift the bar on the applicant's making an anneal.