Judgment of the Court (First Chamber) of 17 November 1965. - Jean Lens v Court of Justice of the European Communities. - Case 55-64.



European Court reports

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German edition Page 01098

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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - APPEALS - TIME-LIMITS - EXTENSION OF TIME BY MEANS OF A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS

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

2 . OFFICIALS - APPEAL AGAINST A MEASURE CONFIRMING A PREVIOUS DECISION - TIME-LIMIT FOR APPEAL AGAINST SUCH DECISION EXPIRED - LOSS OF RIGHT TO APPEAL

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

3 . PROCEDURE - JUDGMENT GRANTING ANNULMENT - LEGAL EFFECTS - LIMITED TO THE PARTIES AND TO THE PERSONS DIRECTLY CONCERNED BY THE MEASURE ANNULLED - JUDGMENT CONSTITUTING A NEW FACT - CONCEPT

Summary

1 . CF . PARAGRAPH 5, SUMMARY IN CASE 28/64, ( 1965 ) ECR 237 .

A REQUEST OR COMPLAINT PROVIDED FOR IN ARTICLE 90 OF THE STAFF REGULATIONS, ALTHOUGH CAPABLE OF BEING SUBMITTED AT ANY TIME, CANNOT NEVERTHELESS EXTEND THE PERIOD FOR LODGING AN APPEAL TO THE COURT UNLESS IT IS MADE WITHIN THE PERIOD LAID DOWN FOR THE LATTER .

*/ 664J0028 /*.

2 . A MEASURE WHICH MERELY CONFIRMS A PREVIOUS DECISION CANNOT REVIVE AN ALREADY TIME-BARRED RIGHT OF APPEAL AGAINST THAT DECISION .

CF . PARAGRAPH 1, SUMMARY IN JOINED CASES 50, 51, 53, 54 AND 57/64, ( 1965 ) ECR 825 .

3 . CF . PARAGRAPH 4 OF SUMMARY IN CASE 43/64 ( 1965 ) ECR 385 .

APART FROM THE ACTUAL PARTIES IN PROCEEDINGS BEFORE THE COURT, THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE ARE, THE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED . SUCH A JUDGMENT CAN ONLY CONSTITUTE A NEW FACTOR AS REGARDS THOSE PERSONS .

*/ 664J0043 /*.

Parties

IN CASE 55/64

JEAN LENS, A PRINCIPAL ASSISTANT IN THE INTERNAL SERVICES DEPARTMENT OF THE ADMINISTRATION OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, REPRESENTED BY FERNAND PROBST, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE AT THE LATTER'S CHAMBERS AT 26 AVENUE DE LA LIBERTE, LUXEMBOURG,

APPLICANT,

V

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS REGISTRAR, ALBERT VAN HOUTTE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE AT THE COURT, 12 RUE DE LA COTE-D' EICH, LUXEMBOURG,

DEFENDANT,

Subject of the case

APPLICATION FOR THE PARTIAL ANNULMENT AND FOR THE VARIATION OF A DECISION OF 8 OCTOBER 1964 BY WHICH THE PRESIDENT OF THE COURT REFUSED TO ALTER THE STEP GRANTED TO THE APPLICANT BY A REGRADING DECISION OF 14 MARCH 1963;

Grounds

P.840

ON 5 DECEMBER 1964 MR LENS LODGED AN APPEAL AGAINST THE DECISION OF THE PRESIDENT OF THE COURT OF 8 OCTOBER 1964, REJECTING HIS COMPLAINT OF 29 SEPTEMBER 1964 . THIS DECISION RELATED TO THE GRADING GIVEN TO HIM BY A DECISION OF 14 MARCH 1963, NOTIFIED TO HIM ON 2 APRIL 1963 .

THE ADMISSIBILITY OF THE APPLICATION ON A PROCEDURAL ISSUE

DURING THE COURSE OF THE PROCEDURE, AND BY A DOCUMENT DATED 19 JULY 1965 HEADED ' APPLICATION ON A PROCEDURAL ISSUE PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE ' MR LENS MADE IT KNOWN TO THE COURT THAT IT SEEMED TO HIM ' PREFERABLE TO DISPOSE OF "TWO QUESTIONS" BEFORE ANY DISCUSSIONS AS TO THE SUBSTANCE OF THE APPEAL '. SINCE THIS DOCUMENT DOES NOT CONTAIN ANY FORMAL CONCLUSIONS IT SEEMS SIMPLY TO EXPRESS A WISH . IT HAS THEREFORE FAILED TO BRING EFFECTIVELY A CLEARLY STATED APPLICATION ON A PROCEDURAL ISSUE BEFORE THE COURT, AND IT MUST BE DECLARED INADMISSIBLE .

THE ADMISSIBILITY OF THE APPEAL

UNDER ARTICLE 92 OF THE RULES OF PROCEDURE THE COURT MAY AT ANY TIME OF ITS OWN MOTION CONSIDER WHETHER THERE EXISTS ANY ABSOLUTE BAR TO PROCEEDING WITH A CASE . THE ADMISSIBILITY OF THE APPEAL MADE BY MR LENS MUST THEREFORE BE EXAMINED FROM THIS POINT OF VIEW .

ON 29 SEPTEMBER 1964 THE APPLICANT SUBMITTED ' A REQUEST OF COMPLAINT ' THROUGH OFFICIAL CHANNELS UNDER ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS AGAINST THE DISPUTED DECISION OF 14 MARCH 1963 .

THIS REQUEST OR COMPLAINT THROUGH OFFICIAL CHANNELS INVITED THE APPOINTING AUTHORITY TO REVOKE THE SAID DECISION AND TO REGRADE THE APPLICANT RETROACTIVELY ON THE BASIS OF THE PRINCIPLES STATED IN THE GROUNDS OF THE JUDGMENT IN CASE 70/63 .

UNDER ARTICLE 91(2 ) OF THE STAFF REGULATIONS OF OFFICIALS, APPEALS TO THE COURT SHALL BE FILED WITHIN THREE MONTHS BEGINNING WITH THE DATE OF NOTIFICATION OF THE DECISION TO THE PERSON CONCERNED . THEREFORE A REQUEST OR COMPLAINT THROUGH OFFICIAL CHANNELS WHICH IS NOT FILED WITHIN THE SAID PERIOD CANNOT SUSPEND THE EFFECTS OF THIS TIME-LIMIT .

IN THE PRESENT CASE, SINCE NOTIFICATION OF THE DECISION WAS GIVEN TO THE APPLICANT ON 2 APRIL 1963, HIS REQUEST OR COMPLAINT THROUGH OFFICIAL CHANNELS FILED ON 29 SEPTEMBER 1964 WAS THUS MADE ALMOST EIGHTEEN MONTHS LATER, WHICH MEANS THAT IT WAS MADE AFTER THE EXPIRY OF THE PERIOD OF THREE MONTHS LAID DOWN IN ARTICLE 91(2 ) OF THE STAFF REGULATIONS . THEREFORE THE SAID REQUEST OR COMPLAINT COULD NOT SUSPEND THIS LIMITATION PERIOD .

IT IS NOT POSSIBLE TO FIND IN THE ANSWER GIVEN BY THE APPOINTING AUTHORITY ON 8 OCTOBER 1964 TO THE REQUEST OR COMPLAINT THROUGH OFFICIAL CHANNELS ANY FACTORS WHICH COULD ENABLE THE PERIOD REFERRED TO IN ARTICLE 91(2 ) OF THE STAFF REGULATIONS TO START TO RUN AFRESH . IN FACT THIS ANSWER DOES NO MORE THAN CONFIRM THE DECISION OF 14 MARCH 1963 . THEREFORE IT CANNOT HAVE CAUSED THE PERIOD FOR FILING AN APPEAL TO THE COURT BASED ON ARTICLE 91 OF THE STAFF REGULATIONS TO START TO RUN AFRESH .

THE APPLICANT RELIES ON THE NEW FACT CONSTITUTED, ACCORDING TO HIM, BY THE JUDGMENT IN CASE 70/63 DELIVERED BY THE COURT ON 7 JULY 1964 IN A CASE BETWEEN ITS ADMINISTRATION AND ONE OF ITS SERVANTS, MR COLLOTTI . HOWEVER, THIS JUDGMENT WAS DELIVERED IN A CASE TO WHICH THE APPLICANT WAS NOT A PARTY, AND AS REGARDS HIM IT CANNOT CAUSE THE PERIOD FOR LODGING AN APPEAL TO THE COURT TO START TO RUN AFRESH . IN FACT IT MATTERS LITTLE THAT THE DEFENDANT IN THAT CASE AND THE DEFENDANT IN THE PRESENT ONE ARE THE SAME . THIS DOES NOT ALTER IN ANY WAY THE FACT THAT THE APPLICANT WAS NOT DIRECTLY CONCERNED BY THE JUDGMENT DELIVERED IN THE ACTION BROUGHT BY MR COLLOTTI .

THEREFORE THE SAID JUDGMENT IN CASE 70/63 CANNOT CONSTITUTE A NEW FACT IN THE PRESENT CASE .

THE APPEAL IS THEREFORE INADMISSIBLE .

Decision on costs

THE APPLICANT HAS FAILED IN HIS APPEAL .

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

HOWEVER, ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPEAL IN CASE 55/64 AS INADMISSIBLE;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .