Report for the Hearing delivered in Case 152/85

I — Facts and procedure

1. The applicant, Rudolf Misset, a translator in Grade LA 7 in the Translation Department of the Council, at Brussels, was absent from his place of work from 18 July to 3 August 1984. On 25 September 1984 the Director for Personnel and Administration at the General Secretariat of the Council, Mr Gueben, informed the applicant that he was not permitted to submit on that date a medical certificate justifying his absence.

2. By a letter of 19 December 1984 the applicant submitted a complaint against that decision pursuant to Article 90 (2) of the Staff Regulations. The complaint was expressly rejected by a memorandum of 18 February 1985 signed by the Secretary-General of the Council, Mr Ersbøll. That decision was notified to the applicant on the same day.

3. By an application lodged at the Court Registry on 21 May 1985 the applicant brought these proceedings, in which he claims that the Court should:

4. In an interlocutory application the Council raised an objection of inadmissibility on the ground that the action was brought out of time, and asked the Court to rule on its application before proceeding further with the substance of the case.

5. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the orai procedure without any preparatory inquiry on the sole issue of admissibility, without proceeding further on the substance of the case. However, the Chamber asked the Council, the Commission and the European Parliament to provide information on their practice with regard to calculating the expiry of the time allowed for the submission of a complaint pursuant to Article 90 of the Staff Regulations and to express their point of view on the importance of Regulation No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time-limits (Official Journal, English Special Edition 1971 (II), p. 354) for that calculation and for the calculation of time-limits for appeals. The replies provided by the three institutions are indicated below, in Part IV.

6. By an order of 27 February 1986 the Second Chamber referred the issue of the admissibility of the action to the full Court.

II — Conclusions of the parties

1. The Council claims that the Court should:

2. The applicant claims that the Court should:

III — Submissions and arguments of the parties

1. According to the Council, the action was brought out of time. Pursuant to Article 80 (1) of the Rules of Procedure, the period for bringing the action started to run on the day after the day of the event from which the period was to run, that is to say 19 February 1985. The period for bringing an action thus came to an end in the normal way three months later, that is to say on 18 May 1985. The applicant, a Belgian resident, was entitled to two extra days (extension on account of distance pursuant to Article 81 (2) of the Rules of Procedure). However, the action was brought only on 21 May 1985, that is to say one day too late.

2. The applicant considers that the appeal period of three months laid down in Article 91 (3) of the Staff Regulations includes the last day, the dies ad quern, and that the action was therefore brought within the prescribed period. The applicant admits that this problem is resolved neither by the Rules of Procedure nor by the Staff Regulations. However, the method of calculation proposed by the applicant is in line with the provisions of Regulation No 1182/71, referred to above. Article 3 (1) of that regulation provides that where a period expressed in ... months ... is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be considered as falling within the period in question, and Article 3 (2) (c) states that the period shall start at the beginning of the first hour of the first day of the period, and shall end with the expiry of the last hour of whichever day in the last... month ... falls on the same date as the day from which the period runs.

IV — Replies to the questions put by the Court

The following replies were provided by the Community institutions to the questions put by the Second Chamber.

The Council stated that its General Secretariat calculates the date of expiry of the period for bringing a complaint under the second indent of Article 90 (2) of the Staff Regulations in accordance with the plain words of that provision, that is to say three months from the date on which the person concerned receives notification of the decision. It considers, moreover, that Regulation No 1182/71 may be taken into account only in the calculation of periods specified in acts referred to in Article 1 of that regulation, and thus does not cover periods laid down by the Treaty, the Statute of the Court of Justice or the Rules of Procedure.

The Commission emphasized that it has no fixed practice for calculating the date of expiry of the period for bringing a complaint, especially since it replies to all complaints, even those submitted late, but points out the possibility that a subsequent application to the Court may be declared inadmissible. The Commission agrees that there is no provision in Community law which expressly governs the calculation of the date of expiry of the period for bringing an action. It points out, however, that Article 1 of Regulation No 1182/71 provides that save as otherwise provided, this regulation shall apply to acts of the Council or Commission which have been or will be passed pursuant to the Treaty establishing the European Economic Community or the Treaty establishing the European Atomic Energy Community. It may be argued, on the basis of the general wording of that article, that the Staff Regulations, inasmuch as they are laid down in a regulation adopted by the Council, fall within the scope of that regulation and that the regulation therefore also applies to the procedural time-limits. In any event, according to the Commission, the regulation could be applied by analogy.

The European Parliament indicated that in calculating time-limits for complaints it follows the interpretation given by the Court in its judgment of 26 November 1981, referred to above. With regard to the application of Regulation No 1182/71, the Parliament simply applies the provisions of Article 90 of the Staff Regulations.

1 Language of the Case: Dutch.