Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. J. K., an official of Dutch nationality serving the European Parliament, cohabits with a male friend whom he declares to be a dependant. On that ground he applied for the household allowance provided for by Article 1 (2) (c) of Annex VII to the Staff Regulations. His request was refused and on 13 February 1984 he brought this action against the European Parliament for a declaration that the decision refusing him the household allowance is unlawful.

2. In such cases, the date and nature of the documents exchanged by the parties are decisive. The sequence of events, in chronological order, was as follows:

3. In support of its objection, the European Parliament submits the following arguments:

4. In reply, J. K. states that, in view of the difficulty that there was in classifying both his letter of 25 February 1983 (complaint against a decision rejecting a request or reiteration of his previous request of 22 November 1982) and the Parliament's reply dated 21 April 1983 (first definitive decision rejecting a request or confirmation of the previous decision rejecting the request), on 11 July 1983 he lodged an appeal and a complaint concurrently in order to safeguard his rights. He further submits that the employer is acting in bad faith in raising an objection of inadmissibility after the exchange of the letters mentioned above and in relying on the vagueness which arose from the failure to classify its own decisions, which could have been avoided if the possibility of lodging a complaint or an appeal had been expressly mentioned.

5. One might be tempted to uphold the objection of inadmissibility raised by the European Parliament in so far as it is based on the late submission of the complaint lodged on 11 July 1983. Indeed, it might be considered that the request of 22 November 1982 was rejected on 21 February 1983 and that the complaint against that decision ought to have been lodged by 22 May 1983.

6. In support of its submission that the appeal must be held to be out of time, the Parliament contends that the complaint of 11 July 1983 was expressly rejected by its letter of 2 August 1983.

7. I therefore propose that the Court should:

1 Translated from die French.