Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1973/C5672.html
Cite as: [1973] EUECJ C-56/72

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61972J0056
Judgment of the Court (Second Chamber) of 8 February 1973.
Godelieve Goeth-Van der Schueren v Commission of the European Communities.
Case 56-72.
European Court reports 1973 Page 00181
Greek special edition 1972-1973 Page 00427
Portuguese special edition 1973 Page 00091

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OFFICIALS - DISPUTES WITH THE ADMINISTRATION - ACT ADVERSELY AFFECTING AN OFFICIAL - MEANING
( STAFF REGULATIONS, ARTICLE 91 )

AN OFFICIAL MEMORANDUM ADDRESSED TO AN OFFICIAL STATING THAT THE PROVISIONS APPLICABLE DO NOT PERMIT THE MAINTENANCE OF AN ALLOWANCE WHICH HE HAS HITHERTO RECEIVED, AND NOTIFYING HIM OF THE WITHDRAWAL OF THAT ALLOWANCE, CONSTITUTES AN ACT ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS .

IN CASE 56/72
GODELIEVE GOETH-VAN DER SCHUEREN, OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY VICTOR BIEL, ADVOCATE AT THE COUR SUPERIEURE DE JUSTICE AT LUXEMBOURG, HAVING CHOSEN HER ADDRESS FOR SERVICE AT LUXEMBOURG IN THE CHAMBERS OF THE SAID ADVOCATE, 71, RUE DES GLACIS, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER PIERRE LAMOUREUX, ACTING AS AGENT, HAVING CHOSEN ITS ADDRESS FOR SERVICE AT THE OFFICES OF ITS LEGAL ADVISER EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

IN THE MATTER ( AT THE PRESENT STAGE OF THE PROCEEDINGS ) OF THE ADMISSIBILITY OF THE APPLICATION FOR ANNULMENT OF THE DECISION BY THE COMMISSION IMPLIEDLY REJECTING THE APPLICANT' S COMPLAINT OF 5 APRIL 1972 SEEKING TO RETAIN THE EXPATRIATION ALLOWANCE AND OF THE MEASURE WITHDRAWING THAT ALLOWANCE,

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 ON 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 NOT 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 .

THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE ACTION AS INADMISSIBLE;
2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .