JUDGMENT OF 14. 4. 1970 — CASE 24/69 NEBE v COMMISSION

In Case 24/69

THE COURT (First Chamber) composed of: R. Monaco, President of Chamber, A. M. Donner and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

1 — The retroactive effect of the appointment

2 — The temporary posting

Grounds of judgment

Costs

I —. Facts and procedure

II —. Conclusions of the parties

1. Declare null and void, or at any rate illegal, the decision of the Commission of the European Communities of 14 March 1969 rejecting the complaint made by him based on Article 90 of the Staff Regulations, and annul that decision ;

2. Declare null and void, or at any rate illegal, point 3 of the decision of the Commission of the European Economic Community of 23 May 1966 relating to the applicant's posting to a post in Grade A 5, his appointment as Principal Administrator and his promotion to Grade A 5, and annul this provision ;

3. Rule that

4. Remit the case to the appointing authority;

5. Order the defendant to bear the costs.

1. Reject the appeal as unfounded;

2. Order the applicant to bear the costs.

(a). Order that Mr Korth, Head of Division, Mr Amiet, Director, and Mr Heringa, Deputy General, be heard on the facts set out under point 2;

(b). Order that Mr Heinz Bruns, Assistant to the Director General for Agriculture be heard on the facts set out under point 3 above;

(c). Order the production of the complete correspondence which passed between the Directorate General for Agriculture and the Directorate General for Personnel and Administration on the subject of the applicant's promotion, based on the declarations by the latter under points (2) (e) and (7).

III —. Submissions and arguments of the parties

1 —. The retroactive effect of the appointment

(a). The applicant submits that whilst the Staff Regulations are silent on the retroactive effect of appointments or promotions, it nevertheless allows this and the provisions being silent on the point, the case ought to have been dealt with according to the practice currently followed by the Commission, as required by the principle of equality of treatment and this all the more so since the recruiting and promotion procedure has in the event taken more than two years for no obvious reason.

(b). The applicant alleges that whatever the rules in the matter of retroactive appointment, the defendant has acted towards him in a discriminatory manner. According to him other appointments with retroactive effect were made at the same time as his and he offers to provide proof of this fact.

2 —. The temporary posting

1. The application, registered at the Court on 5 June 1969, is first for annulment of the decision of the Commission of 23 May 1966 to the extent to which, in fixing 1 May 1966 as the date on which the promotion of the applicant to Grade A 5 takes effect, this decision refuses him the benefit of retroactive treatment as from 1 November 1964, to which he claims to be entitled.

2. The applicant who claimed actually to have performed his duties since the beginning of the month of February 1964, in the Grade A 5 post to which he was subsequently appointed, sought by his complaint to obtain a modification of the decision of 23 May 1966 with a view to its taking effect as from 1 November 1964, a date on which he satisfied the minimum seniority in Grade A 6 required for promotion.

3. By reason of the periods which have elapsed it is necessary to examine whether the appeal must not be regarded as out of time.

4. Under Article 91 of the Staff Regulations, failure on the part of the competent authority to give a decision in reply to a request or complaint must at the expiration of a period of two months be regarded as an implied decision rejecting the request or complaint and such decision may be contested within a period of two months.

5. The two combined periods under Article 91 of the Staff Regulations are intended to ensure within the Community institutions the legal certainty indispensable to their proper functioning.

6. The letter of 24 August 1966 does not constitute a decision in reply to the applicant's complaint. It cannot moreover, of itself, have any other legal effect sinceit has the sole purpose of intimating the carrying out by the Commission of an obligation already provided for, as in Article 91 of the Staff Regulations.

7. It follows that if at the expiration of the period of two months the examination of which the applicant had been informed had not led to an express decision, the complaint must be regarded as rejected by implication.

8. As regards the express decision of rejection contained in the letter of 14 March 1969, whilst this letter sets out the grounds for adhering to the previous decision, it nevertheless contains no new factor relating to the position in law or in fact existing at the time of the implied rejection of the original decision.

9. The applicant has failed in his application.

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 Economic Community; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 91 ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber)

1 Dismisses the application as inadmissible;

2 Orders the parties to bear their own costs.