JUDGMENT OF 9.6.1964 — CASE 69/63 MARCILLAT v COMMISSION

In Case 69/63

THE COURT (First Chamber) composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and W. Strauß, Judges, Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Conclusions of the parties

A. The applicant claims in her application that the Court should:

B. The defendant contends that the Court should:

III — Submissions and arguments of the parties

A — On admissibility

1. The decision of 14 June 1961 and the confirmatory notes dated 2 August 1961 and 4 May 1962

2. The implied decision of refusal resulting from the silence in respect of the request of 22 February 1963

B — On the substance of the case

IV — Procedure

Grounds of judgment

I — As to admissibility

II — As to the substance of the case

III — Costs

I —. Facts

II —. Conclusions of the parties

A. The applicant claims in her application that the Court should:

1. Declare that it has jurisdiction to entertain this dispute;

2. Declare the application to be admissible;

3. Reverse the decisions taken and declare that, despite her marriage, the applicant has the right to the separation allowance prescribed by the letter of engagement of 2 March 1960;

4. Consequently, order the defendant to pay the applicant the arrears of separation allowance as from the date of its withdrawal;

5. Order the defendant to pay the costs and expenses of the proceedings.

B. The defendant contends that the Court should:

III —. Submissions and arguments of the parties

1. The express decision of the Commission, notified to the applicant on 14 June 1961 (Schedule 1A to the application), by which the applicant's separation allowance was withdrawn following her marriage;

2. In so far as they constitute confirmatory decisions, the letters sent to the applicant on 2 August 1961 and 4 May 1962 (Schedules 3 and 10 to the application) by Mr Funk, the Director-General of Administration and Personnel;

3. The implied decision of refusal of the applicant's request to the Deputy Director on 22 February 1963 (Schedule 11 to the application), arising from the silence of the Director of the Centre at Ispra.

A —. On admissibility

1. The decision of 14 June 1961 and the confirmatory notes dated 2 August 1961 and 4 May 1962

(a). Since, in the applicant's opinion, Article 152 of the EAEC Treaty provides for the implementation of the Staff Regulations of officials, the application of time-limits for bringing an appeal is only conceivable after the Regulations have come into force (a situation realized on 14 June 1962) and after they have become applicable to the applicant and to the dispute.

(b). The applicant considers that in this case the conditions for the application of Article 91 of the Staff Regulations are not fulfilled.

2. The implied decision of refusal resulting from the silence in respect of the request of 22 February 1963

(a). On 6 February 1963 the applicant became established. Consequently she was asked, in accordance with Article 104 of the Staff Regulations, to waive the benefit of her contract.

(b). The applicant goes on to assert that, as in its notes of 2 August 1961 and 4 May 1962 the Administration mentioned only suspension of the separation allowance and not its withdrawal, it gave to the decision of 14 June 1961 a clearly provisional nature and it was consequently only valid until the advent of subsequent decisions. At the time of her establishment the applicant had thus the best reasons for pressing for a new, and this time definite, decision. And that is what she did by her request of 22 February 1963.

B —. On the substance of the case

1. She starts by expressing serious doubts as to the legality of the decision of the Councils of 25 January 1958 and denies that it can operate against her, as it was never published, as she was totally unaware of it and in any case as it only applies to senior officials.

2. The applicant then points out that, during the period before the entry into force of the Staff Regulations, there was nothing to prevent the Administration from substituting for a contract of engagement of 2 March 1960 a contract based on the provisions of the Staff Regulations of officials of the ECSC.

3. The applicant finally maintains that the application by analogy of the Staff Regulations of the ECSC to the contract created by the letter of engagement is only possible to the extent that the provisions of the said Regulations do not conflict with the terms of the letter of engagement. But, as regards the separation allowance, there is inconsistency between the terms of the letter of engagement and the provisions of the Staff Regulations of the ECSC.

IV —. Procedure

I —. As to admissibility

II —. As to the substance of the case

III —. Costs

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community; Having regard to Article 152 of the Treaty establishing the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to the Staff Regulations of officials of the European Atomic Energy Community; THE COURT (First Chamber) hereby:

1 Dismisses Application 69/63 as unfounded;

2 Orders that each of the parties shall bear its own costs.