Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

Although the three applications referred to you under Nos 52/64, 12/65 and 47/65 are made by different applicants, all of whom belong to one Translation Department, and although the first two are directed against the Commission of the EEC and the third against the European Parliament, I shall ask your permission to submit one opinion for all three. The circumstances of each one are very similar, if not identical, and each arises out of your judgment in Case 70/63 of 7 July 1964. As regards the first two, the defendant institution contested the admissibility of the applications; as regards the third, an order made by your Chamber of 14 July last decided to apply Article 92 of the Rules of Procedure and to rule first on admissibility.

I

Let us consider the facts according to the order in which the applications were filed.

II

Is such an application admissible? The question arose in almost identical circumstances in Cases 50, 51, 53, 54 and 57/65, Loebisch and Others, which gave rise to your judgment of 15 July last. In that case you replied in the negative and, having considered the special features of the arguments submitted in this case, I can only suggest that you adopt the same solution today.

III

There remains the problem of costs which was argued in detail in the oral proceedings.

The applicants maintain that, even if their applications be declared inadmissible, the defendant must in any event bear all the costs. Whether the admissibility of applications such as theirs was not originally discussed, whether the applications were only made to the Court in the absence of any reply to their administrative complaints, whether, finally, as in other cases—that is, Maudet, Erba and Reynier—the administration had itself accorded the benefit of a judgment to servants who had submitted no complaint, these different circumstances are said to justify an award of all the costs against the institution.

It must be remembered However that, subject to the provision that in proceedings by officials institutions shall bear their own costs, Article 69 (2) of the Rules of Procedure provides that the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading; in this case such a request was made. The Court may only order that the parties bear their own costs in whole or in part where the circumstances are exceptional. You have held that such was the case where errors imputable to the administration encouraged the applicant to appeal to the Court (Case 11/64, Weighardt v Commission of the EAEC,7 April 1965, [1965] ECR), but this does not apply to the present case. In particular, by giving no reply to a complaint or by merely giving a temporizing reply the institution did no more than make use of one of its powers under Article 91 of the Staff Regulations and its attitude cannot be regarded as a wrongful act or an error which necessarily involves the rejection of the principles laid down in Articles 69 (2) and 70 of the Rules of Procedure.

I am therefore of the opinion that:

Applications 52/64, 12/65 and 47/65 should be dismissed as inadmissible;

furthermore, in each case, subject to the provisions of Article 70 of the Rules of Procedure, the costs should be borne by the applicant.

1 Translated from the French.