JUDGMENT OF 8. 2. 1973 — CASE 56/72 GOETH v COMMISSION

In Case 56/72

THE COURT (Second Chamber) composed of: P. Pescatore, President of the Chamber, R. Monaco and H. Kutscher (Rapporteur), Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Submissions of the parties

III — Pleas and arguments of the parties

Grounds of judgment

Costs

I —. Facts and procedure

1. The applicant, of Belgian nationality, is an official of the Commission and carries out her duties in Luxembourg. On 1 October 1971, she married the Austrian national Mr Goeth who is in private employment and resident in Luxembourg.

2. On 28 October 1971, the Head of the Personnel Division of the Directorate-General for Personnel and Administration of the Commission addressed a memorandum to the applicant in the following terms:

3. By judgments dated 7 June 1972 (Cases 20/71 Mrs Bertoni-Sabbatini v European Parliament; 32/71 Mrs Bauduin-Chollet v Commission), the Court (Second Chamber) held that in making the continuance of the said allowance dependent, in case of an official marrying a person not complying with the conditions for the grant of this allowance, upon acquiring the status of head of household as defined by Article 1 (3) of Annex VII of the Regulations, the latter had created an arbitrary difference in treatment between officials. In consequence, the Court annulled the decisions withdrawing the allowance.

4. On 3 August 1972, the applicant submitted the present application.

II —. Submissions of the parties

(a). say that the implied refusal to accept the complaint of 5 April is illegal and must therefore be annulled;

(b). in any case, and on the same grounds as in the Bertoni case 20/71, say that the withdrawal of the expatriation allowance is illegal and must therefore be annulled;

(c). order the defendant to bear all the costs and expenses of the proceedings;

III —. Pleas and arguments of the parties

1. The application, filed in the Court Registry on 3 August 1972, seeks first the annulment of the implied decision of rejection which the applicant considers to have arisen from the silence observed by the Commission oh the complaint of 5 April 1972.

2. It further seeks that the Court should declare illegal the withdrawal of the applicant's expatriation allowance and declare the Commission bound to pay to her the amounts alleged to have been wrongly withheld.

3. The Commission, by interlocutory pleading, in reliance on Article 91 of the Rules of Procedure, has raised an objection of inadmissibility based on the delay in filing the application.

4. It asserts that the memorandum of the Head of the Personnel Division dated 28 October 1971 stating that the applicant no longer fulfils the conditions for the grant of the expatriation allowance, as well as the actual withdrawal of this allowance, shown for the first time in the salary slip of 15 November 1971, constituted acts adversely affecting the applicant within the meaning of Article 91 of the Staff Regulations, so that the applicant, under pain of being ruled out of time, ought to have presented a complaint or an application in February 1972 at the latest.

5. However, she failed to do this, the letter of 22 December 1971, addressed to the Head of Division and not to the appointing authority, not being susceptible of constituting a complaint.

6. On the other hand, supposing it to have constituted a complaint, the applicant would have had to file, in April 1972 at the latest, an application contesting the implied decision of refusal which would then have resulted from the two months' silence on this letter observed by the Commission.

7. The preliminary objection must be judged in the light of Articles 90 and 91 of the Staff Regulations as they appeared at the time of the measures in dispute — hereinafter called former Article 90 and former Article 91 — that is without taking account of the modifications introduced by Articles 38 and 39 of Council Regulation No 1473/72 (Euratom, ECSC, EEC) of 30 June 1972 (OJ L 160, p. 1) and taking effect only on 1 July 1972, under the terms of Article 90 of this Regulation.

8. The memorandum of 28 October 1971 constituted an act adversely affecting the applicant within the meaning of former Article 91 (1) of the Regulations.

9. The applicant is wrong in objecting that since the memorandum did not anywhere employ the expression decision or the term decide, it did not contain any element likely to draw her attention to the decisive character of the measure in question.

10. In stating in the memorandum that the conditions envisaged in Article 4 (3) of Annex VII of the Regulations do not allow you to retain the expatriation allowance and that steps will be taken to withdraw it from 1 October 1971 the Head of Division in clear and unconditional terms took a measure adversely affecting the applicant.

11. The applicant did not take all the steps in her power with regard to the memorandum of 28 October 1971, that is to say she did nothing either to present an application directly within the time limit provided by the first sentence of former Article 91 (2) of the Regulations, or to preserve her right to an application by filing a complaint with the appointing authority under former Article 90 of the Regulations.

12. The letter of 22 December 1971 did not constitute a complaint, the applicant herself not having intended to give it this character; this conclusion is chiefly supported by the fact she did hot address it to the appointing authority and that she did file a complaint with this authority, within the meaning of former Article 90 of the Regulations, by her letter of 5 April 1972 addressed to the President of the Commission.

13. Accordingly, the applicant's right to impugn the decision of 28 October 1971 before the Court had expired at the end of the month of January 1972.

14. Whilst it was open to her, by virtue of former Article 90 of the Regulations, to file a complaint at any time with the appointing authority, as she did by her letter of 5 April 1972, such a complaint could not confer on her a new right of action.

15. Finally, the memorandum of the Head of Division of 14 January 1972, being simply a confirmation of the decision of 28 October 1971, cannot be taken into consideration when calculating the relevant time limits.

16. The action, being out of time, must therefore be dismissed as inadmissible.

17. The applicant has failed in her action.

18. By Article 69 (2) of the Rules of Procedure the losing party must bear the costs.

19. However, by Article 70 of the Rules of Procedure, costs incurred by the institutions, in actions by the staff of the Communities, remain the liability of the institutions.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral arguments of 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 Regulation of the European Communities, especially Articles 90 and 91 as they appeared prior to 1 July 1972; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 70 and 91; THE COURT (Second Chamber) hereby:

1 Dismisses the action as inadmissible;

2 Orders each party to bear its own costs.