JUDGMENT OF 15. 6. 1976 — CASE 5/76 JÄNSCH v COMMISSION

In Case 5/76

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

gives the following

JUDGMENT

Facts

I — Facts

II — Procedure

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

Law

I —. Facts

1. Article 45 (2) of the Staff Regulations of Officials (hereinafter referred to as the Staff Regulations) makes promotion from one category to another conditional on a competition.

2. The applicant entered the service of the Commission of the EAEC in August 1960 as a laboratory technician. As from September 1961 his place of employment was the Joint Nuclear Research Centre at Ispra. In January 1962 he was established as an official in Grade B 4 and in January 1966 he was promoted to Grade B 3.

3. On 16 December 1974 the Commission published in the Staff Courier under the second paragraph of Article 98 of the Staff Regulations procedures to be implemented prior to decisions on the transfer from Category B to Category A of officials in the scientific and technical services. These Procedures stated that they related only to officials covered by Article 92 of the Staff Regulations.

II —. Procedure

1. On 16 January 1976 the applicant brought the present action in which he claims that the Court should:

2. In his application the applicant alleges in particular, as regards the substance, that the Procedures should according to Article 110 of the Staff Regulations have been adopted after consulting the Staff Committee and the Staff Regulations Committee. Moreover, the Procedures derogate from the provisions of Article 92 of the Staff Regulations since the latter was not confined, as were the contested Procedures, to officials belonging to the scientific and technical service. The condition contained in the last part of the first paragraph of Article 92 of the Staff Regulations that the officials in question must be paid from appropriations in the research and investment budget is not an additional requirement but an explanation. To consider it otherwise would lead to the introduction of discrimination contrary to the principle of equality between officials, enshrined in particular in Article 5 (3) of the Staff Regulations. If Article 92 of the Staff Regulations does discriminate there would be reason for regarding it as contrary to the principle of equality between officials.

3. On 20 February 1976 the Commission lodged an application in accordance with Article 91 of the Rules of Procedure that the Court should decide on a preliminary objection to the admissibility of the action, declare the action inadmissible and order the applicant to bear the costs.

4. In his statement dealing with the objection of inadmissibility lodged on 22 March 1976 the applicant asked the Court to order the defendant to produce his leave record sheet for 1975. When the parties have if necessary discussed this document the Court must either fix the time-limit before which the defendant may lodge its defence or order the oral procedure to be opened with regard to the objection of inadmissibility in accordance with Article 91 (3) of the Rules of Procedure of the Court and reserve the costs.

5. On hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (Second Chamber), decided to open the oral procedure on the objection without any preparatory inquiry.

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

1. The defendant, the applicant with regard to the procedural issue, claims that in so far as the action asks for the annulment of the decision of the Commission of 2 October 1975 and of the Procedures, an implied decision rejecting the applicant's complaint of 3 March 1975, registered on 6 March 1975, took effect on 6 July 1975 in accordance with Article 90 (2) of the Staff Regulations. This implied decision should have been contested before 7 October 1975 in accordance with the second indent of Article 91 (3) of the Staff Regulations. The Commission's express rejection dated 2 October 1975 was not notified to its addressee until 16 October 1975 on his return from leave. It could not cause another period for bringing an action to start to run since its notification was subsequent to the expiration of the period within which the previous implied decision should have been contested (second indent of Article 91 (3) of the Staff Regulations).

2. In so far as the appeal asks for the annulment of the decisions taken under the Procedures other than that notified to the applicant on 30 June 1975, the defendant states that the very summary manner in which the applicant cites these decisions leads to doubt whether this head of claim complies with Article 38 (1) of the Rules of Procedure.

3. In so far as the application claims that Article 92 of the Staff Regulations should be annulled or at least declared inapplicable, the defendant submits that this claim can be considered only if the appeal itself is admissible.

4. The applicant, the defendant as regards the procedural issue, submits that as regards the annulment of the decision of the Commission of 2 October 1975 and the Procedures he agrees that the request of 20 June 1975 has no effect on the time-limits.

5. With regard to the annulment of the decisions taken in implementation of the Procedures, the applicant alleges that it has always been recognized that it is possible in the course of the procedure to give more details of one's claims and even, according to the case-law of the Court, formulate arguments and submissions amplifying previous arguments.

6. With regard to the annulment of Article 92 of the Staff Regulations the applicant is in complete agreement with the defendant in regarding the admissibility of the objection to it as depending on the admissibility of the application.

1. The application lodged at the Court Registry on 16 January 1976 seeks in particular the annulment of a decision of the Commission of 2 October 1975 rejecting a complaint brought by the applicant on 3 March 1975 and directed against the Procedures to be implemented prior to decisions on the transfer from Category B to Category A of officials in the scientific and technical services published in the Staff Courier on 16 December 1974.

2. By an application on a procedural issue lodged on 20 February 1976 the defendant raised under Article 91 of the Rules of Procedure a preliminary objection of inadmissibility on the grounds of the alleged lateness of the application.

3. In support of this preliminary objection the defendant states in the first place that the applicant's complaint registered on 6 March 1975 was rejected by the refusal implied by the absence of a reply within the four months prescribed in the last subparagraph of Article 90 (2) of the Staff Regulations, that is in the present case before 7 July 1975, and this implied decision of refusal should therefore have been contested by an application to the Court before 7 October 1975 und the second indent of Article 91 (3) of the Staff Regulations.

4. It states that since the express decision of the Commission was not notified to the applicant until 16 October 1975, that is after the expiration of the period for bringing an appeal, it was impossible for it to have activated the last sentence of that provision, which provides that where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh.

5. However a decision must be regarded as arising within the meaning of this provision at the date on which it is adopted by the competent authority.

6. The latter, having adopted an express decision within the period for bringing an appeal, must except a new period to begin to run in favour of the person concerned without any delay in notification being taken into account.

7. It is proper therefore to conclude that in the present case the express decision of the Commission of 2 October 1975 caused a new period for bringing an appeal to begin to run.

8. The problem then arises as to the date from which this period must be calculated.

9. In this respect the date of notification is the criterion in all cases where as in the present case the delay in notification is not attributable to the person concerned.

10. Only the notification enables him to have effective knowledge of the existence of the decision and the grounds by which the administration justifies it

11. Since notification took effect in the present case on 16 October 1975 the application lodged on 16 January 1976 was brought within the three months laid down in Article 91 (3) of the Staff Regulations.

12. Accordingly the preliminary objection of inadmissibility must be rejected.

On those grounds, THE COURT (Second Chamber) hereby:

1 Declares the application to be admissible;

2 Orders the procedure to continue with regard to the substance;

3 Reserves the costs.