JUDGMENT OF 21. 2. 1974 — JOINED CASES 15-33, 52, 53, 57-109, 116, 117, 123, 132 AND 135-137/73 SCHOTS-KORTNER AND OTHERS v COUNCIL, COMMISSION AND PARLIAMENT

In Joined Cases

THE COURT (Second Chamber) composed of: M. Sørensen (Rapporteur), President of Chamber, P. Pescatore and Lord Mackenzie Stuart, Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Pleas and arguments of the parties as to the admissibility of the appeals

Grounds of judgment

Costs

A —. The facts of the cases, the subject matters of the applications and the views of the parties may be summarized as follows:

I —. Facts and procedure

1. The applicants, who are officials of the institutions of the European Communities, as a result of their marriage and application of Article 4 (3) of Annex VII of the Staff Regulations in the then current version before its deletion by Regulation No 558/73 of the Council of 26 February 1973 (OJ L 55 of 28 February 1973, p. 1), had their expatriation allowance withdrawn or refused by decisions of the institutions to which they belonged.

2. By applications lodged with the Court between 27 February and 23 May 1973, the applicants asked the Court to order payment of the arrears of the expatriation allowance as from the date when that allowance was withdrawn or refused up to the date when it was restored and, to the extent necessary, to annual the decisions on the part of the defendants withdrawing or refusing this allowance.

3. In statements lodged between 4 April 1973 and 26 June 1973, the defendants raised objections concerning the admissibility of the applications and asked the Court, in conformity with Article 91 of the Rules of Procedure, to decide upon these objections without going into the substance of the matter.

4. In statements lodged between 14 June 1973 and 23 July 1973, the applicants argued that the objections as to admissibility were not well-founded.

5. By orders of 19 March, 21 March, 27 March and 30 May 1973 the Court, having heard the Advocates-General, decided to assign Cases 28 to 32, 52 and 53, 57 to 104, 116 and 117, 132 and 135 to 137/73 to the Second Chamber.

6. By orders of 11 April and 30 July 1973, the Court (Second Chamber) after hearing the report of the Judge-Rapporteur, and the opinion of the Advocate-General, decided to join the cases for the purposes of the oral procedure and judgment.

7. The Court (Second Chamber) after hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General, decided to open the oral procedure without any preparatory inquiry.

II —. Pleas and arguments of the parties as to the admissibility of the appeals

B —. The oral hearings took place on 27 September and 15 November 1973.

C —. The Advocate-General presented his opinion at the hearing of 13 December 1973.

1. The actions, filed at the Court between 27 February and 23 May 1973, are for payment to the applicants of arrears of expatriation allowance calculated from the day when this was withdrawn or refused, in application of Article 4 (B) of Annex VII to the Staff Regulations, up to the date when it was restored to them.

2. They are further for annulment — to the extent necessary — of the defendants' decisions withdrawing or refusing the applicants the benefit of the, expatriation allowance, and of the decisions rejecting their complaints with a view to obtaining the grant of the allowance for the period prior to 1 July 1972.

3. By preliminary documents, on the basis of Article 91 of the Rules of Procedure the defendants raised arguments of inadmissibility by reason of the lateness of the appeals, arguing that these had not been lodged in compliance with the rules laid down by Articles 90 and 91 of the Staff Regulations.

4. Under Article 91, an appeal to the Court of Justice shall lie only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90 (2) within the period prescribed therein.

5. Under Article 90, any complaint against an act adversely affecting an official must be submitted to the appointing authority within a period of three months from the date of notification of the decision to the person concerned but in no case later than the date on which the latter became aware of it.

6. A simple examination of the dates of withdrawal or refusal of the expatriation allowance on the one hand and the dates of the appeals on the other, shows that the latter are inadmissible since they were lodged after the expiration of the time limits laid down by Articles 90 and 91 of the Staff Regulations.

7. The applicants retort that, the appeals are in the first place actions for payment of arrears and that such actions constitute an autonomous form of action which is not subject to the time limits of Articles 90 and 91 of the Staff Regulations.

8. The actions described in this way in fact seek to obtain the annulment of decisions taken by the defendant institutions and are based on the alleged illegality of those decisions.

9. In none of the applications is the payment claimed presented as a claim for compensation for damage caused by the institutions.

10. Even if the applicants intended to claim compensation for damage caused by the institutions in the exercise of their functions, such an action in the present case has its origin in the alleged illegality of the institutions' decisions and cannot therefore be distinguished from an action for annulment.

11. The basis for the appeals thus lies exclusively in Article 179 of the EEC Treaty, which provides that the Court shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations.

12. The appeals are therefore subject to the time limits of Articles 90 and 91 of the Staff Regulations.

13. This argument must therefore be rejected.

14. Some of the applicants maintain that time has not started running against them, since the original decisions withdrawing or refusing the expatriation allowance were not properly communicated to them in accordance with Article 25 of the Staff Regulations.

15. The applicants could have realized that their allowance had been withdrawn or refused only by reading their salary statements, without there having in this respect been any express and reasoned written communication.

16. A salary statement does not constitute a decision within the meaning of Article 25 of the Staff Regulations.

17. It is not denied that the applicants had knowledge of the decisions resulting in the withdrawal or refusal to them of the expatriation allowance more than three months before the making of the administrative complaint.

18. The sending of the monthly salary statement has the effect of starting the time for appeal running, where it clearly shows the decision taken.

19. In the present case this condition is fulfilled.

20. This ground of appeal must accordingly be rejected.

21. Finally, the applicants raise various arguments with a view to showing that time had in. any event started to run afresh in their case.

22. One of the applicants in this respect maintains that the provisions of Article 4 (3) of Annex VII to the Staff Regulations amount to illegality of so striking a kind that they must be considered as non-existent.

23. The finding of non-existence of a rule is said to relieve the applicant from being time-barred by reason of the expiry of the time-limits for appeal.

24. All the applicants refer for the same purpose to the occurrence of certain new facts.

25. The Court's judgments of 7 June 1972 in Case 20/71, Sabbatini v European Parliament and Case 32/71, Bauduin v Commission are said to amount to a new fact.

26. The ground of annulment of the individual decisions pronounced by these judgments was the illegality found to exist in Article 4 (3) of Annex VII to the Staff Regulations;

27. It is precisely by application of this provision, found to have been illegal, that the benefit of the expatriation allowance was withdrawn or refused to the applicants.

28. The decisions taken by the defendant institutions consequent upon the Court's judgment, with a view to granting henceforth — or restoring — the allowance to the applicants as from 1 July 1972, is said to constitute a second new fact.

29. These decisions might be termed a general change of direction in administrative practice, and are said thus to constitute a new fact.

30. Following upon the Court's judgments of 7 June 1972 and the steps taken by the institutions, first in favour of the applicants individually and subsequently in favour of all the officials, by the modifications made in the Staff Regulations, the principle of equal treatment of officials in its application to the problem of the expatriation allowance to be granted to female officials, is no longer in issue.

31. The appeals are solely for payment to the applicants of arrears of expatriation allowance for the period prior to the decisions mentioned.

32. It therefore appears that the admissibility of the appeals must be judged with due regard to the need for legal certainty, indispensable to the proper functioning of the Community institutions, reflected in the fixing of time limits by Article 91 of the Staff Regulations.

33. In any event the provisions of Article 4 (3) of Annex VII to the Staff Regulations cannot be termed non-existent, originating as it does with the competent authority and taken with due regard to the procedural and formal conditions laid down by the Treaties.

34. In the first place the parties treat as new facts the circumstance that following upon the judgments of 7 June 1972, the provision in Article 4 (3) of Annex VII to the Staff Regulations appears to have been defective, and accordingly invalid as from the coming into force of the Staff Regulations.

35. Secondly, they take this view of the decisions, consequent upon the same judgments of the Court, taken in respect of them by the defendant institutions, bearing in mind that the effect of these decisions was the recognition with retrospective effect of the nonvalidity of the provision in the Staff Regulations mentioned.

36. The judgments of 7 June 1972 have the authority of res judicata only in relation to the parties involved at that time.

37. It is right to point out moreover that they could not have pronounced the annulment of the regulatory provision involved, within the meaning of Article 174, first paragraph, but that they simply placed on record the inapplicability of this provision and consequent upon this pronounced the annulment of the individual decisions taken on that basis.

38. In these circumstances, the judgments cannot be relied upon by parties who at the appropriate time omitted to make use of the possibilities of appeal offered to them by the Staff Regulations and by the Treaty.

39. The general change in direction of administrative practice following upon these judgments must in the present circumstances be considered as the anticipated application of a formal amendment in the Staff Regulations but must not be understood as permitting the retrospective re-opening of a situation resulting from decisions taken in relation to the applicants, which at the expiry of the time limits for appeals had become final.

40. These pleas must therefore be rejected.

41. It follows from the foregoing taken together that the appeals were presented out of time and that for that reason they must be declared inadmissible.

42. The applicants have failed in their actions.

43. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

44. However, under the terms of Article 70 of the said Rules, the costs incurred by the institutions in actions brought by employees of the Community are to be borne by such institutions.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of the European Communities, especially Articles 25, 90 and 91; 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 actions as inadmissible;

2 Orders each party to bear its own costs.