JUDGMENT OF 15. 12. 71 — CASE 17/71 TONTODONATI v COMMISSION

In Case 17/71

THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner (Rapporteur) and R. Monaco, 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 par-ties

III — Submissions and arguments of the parties on admissibility of the action

Grounds of judgment

Costs

I —. Facts and procedure

II —. Conclusions of the par-ties

1. Declare the application to be inadmissible and reject it without going into the substance of the case;

2. order the applicant to pay the costs.

III —. Submissions and arguments of the parties on admissibility of the action

1. The defendant Commission (applicant as to admissibility) contends that the action is inadmissible because it has been brought against a non-existent implied decision rejecting a request (silence constituting rejection). For the following reasons, the alleged implied decision at most constitutes no more than confirmation of the previous decision of the administrative authority:

2. The arguments of the applicant (defendant as to admissibility) may be summarized as follows:

1. By letter of 8 December 1970, addressed to the President of the Commission, the applicant lodged a complaint with the object of securing his classification in Category B, career bracket B 3/B 2, with retroactive effect from 1 January 1963. Since he did not receive any reply to the complaint, he brought the present action before the Court in pursuance of the second subparagraph of Article 91 (2) of the Staff Regulations of Officials.

2. In a statement on a procedural issue, the defendant Commission raised an objection of admissibility on the ground that the implied rejection, which was a consequence of the silence of the President of the Commission, was merely confirmation of previous decisions which could no longer be contested.

3. Under Article 91 of the Staff Regulations, appeals against the acts referred to in that article must be lodged within a period of three months. The official concerned cannot revive a limitation period which he has allowed to lapse by lodging a complaint through official channels on the same subject-matter as an act which can no longer be contested and by initiating proceedings before the Court on an alleged implied rejection of that complaint.

4. It is clear from the wording of the complaint of 8 December 1970 that its object was to obtain the applicant's re-classification with effect from 1 January 1963. By decision of 20 February 1963 of the EAEC Commission, communicated on 16 July 1963, the applicant, a servant of the Community since 1959, was integrated as Chief Clerk and classified in Grade C 1, first step, with effect from 1 January 1962. By complaint of 28 February, 1963, addressed to the President of the EAEC Commission, he asked to be classified in a higher grade. He received a reply by letter of 19 September 1963 stating that as the Commission did not find that there was any inconsistency between his grade and the level of his duties, it could not accept this complaint.

5. Neither the decision to integrate him nor the Commission's rejection was challenged within the period prescribed.

6. It is true that, in the course of the written and oral procedure, the applicant contended that at the beginning of 1969 new circumstances arose, which changed his position and justified a re-classification. Nevertheless, the complaint through official channels, the implied rejection of which is the subject of the present proceedings, sought his re-classification with retroactive effect from 1 January 1963 and relied solely on circumstances which existed prior to 1968. No reference to the new circumstances which are alleged to have arisen in 1969 was made in that complaint and such reference would, moreover, be incompatible with its subject-matter inasmuch as it was concerned with re-classification with effect from 1 January 1963.

7. Grounds which have nothing to do with the subject-matter of the complaint of 8 December 1970 cannot be relied upon to support or establish the admissibility of an appeal against the implied rejection of the complaint.

8. The application is, in consequence, inadmissible.

9. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the 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 Treaty establishing the European Atomic Energy Community; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 90 and 91; Having regard to the Rules Of Procedure of the Court of Justice of the European Communities, especially Article 91; THE COURT (First Chamber) hereby:

1 Dismisses the application as inadmissible;

2 Orders the parties to bear their own costs.