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

OFFICIALS - ACTIONS - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - ABSENCE OF EXPRESS DECISION OF REJECTION - TIME-LIMIT FOR BRINGING AN ACTION - TIME-LIMIT LAID DOWN FOR IMPLIED DECISIONS
( STAFF REGULATIONS , ARTS 90 AND 91 )

IN CASE 38/84
J . K ., RESIDING IN SCHWEICH , LUXEMBOURG , REPRESENTED BY A . BIERENBROODSPOT , ADVOCAAT AND PROCUREUR IN THE AMSTERDAM DISTRICT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 8 RUE NOTRE-DAME ,
APPLICANT ,
V
EUROPEAN PARLIAMENT , REPRESENTED BY MANFRED PETER , HEAD OF THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION , ASSISTED BY F . HERBERT OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT MANFRED PETER ' S OFFICE , CENTRE EUROPEEN , PLATEAU DU KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF A DECISION OF THE EUROPEAN PARLIAMENT REFUSING TO GRANT A HOUSEHOLD ALLOWANCE ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 13 FEBRUARY 1984 , J . K ., AN OFFICIAL OF THE EUROPEAN PARLIAMENT , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF REJECTION IMPLIED BY THE EUROPEAN PARLIAMENT ' S FAILURE TO REPLY WITHIN THE PERIOD LAID DOWN IN ARTICLE 90 OF THE STAFF REGULATIONS TO A COMPLAINT TO THE EFFECT THAT HE SHOULD BE GIVEN THE HOUSEHOLD ALLOWANCE PROVIDED FOR IN THE STAFF REGULATIONS .

2 ON 22 NOVEMBER 1982 THE APPLICANT REQUESTED THAT HE BE GIVEN THE HOUSEHOLD ALLOWANCE PROVIDED FOR IN ARTICLE 1 OF ANNEX VII TO THE STAFF REGULATIONS ON THE GROUND THAT HE COHABITED WITH MR C ., WHO WAS HIS DEPENDANT WITHIN THE MEANING OF THE SAID ARTICLE 1 .
3 ON 21 FEBRUARY 1983 THE HEAD OF THE PARLIAMENT ' S PERSONNEL DIVISION INFORMED THE APPLICANT THAT HIS REQUEST COULD NOT BE GRANTED .

4 ON 25 FEBRUARY 1983 THE APPLICANT SENT A FURTHER LETTER , IN WHICH HE REPEATED HIS REQUEST AND ASKED THAT THE APPOINTING AUTHORITY TAKE A SPECIAL REASONED DECISION ON THE MATTER ; HE STATED THAT THE DECISION SHOULD , IN HIS VIEW , REACH HIM BEFORE 22 MARCH 1983 . FAILING THAT HE WOULD BE ' OBLIGED TO TAKE FURTHER STEPS ON THE BASIS OF ARTICLE 90 OF THE STAFF REGULATIONS ' .

5 ON 21 APRIL 1983 THE PARLIAMENT , ACTING THROUGH ITS DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS , ANSWERED THAT IF HE CONTESTED THE DECISION TAKEN IN HIS REGARD HE WAS ' ENTITLED TO INITIATE THE PROCEDURE LAID DOWN IN ARTICLE 90 OF THE STAFF REGULATIONS ' .

6 ON 11 JULY 1983 THE APPLICANT NOTIFIED THE PARLIAMENT THAT HE HAD BROUGHT AN ACTION BEFORE THE COURT OF JUSTICE CHALLENGING THE DECISION OF 21 APRIL 1983 . IN THE SAME LETTER THE APPLICANT ALSO STATED THAT IN THE EVENT THAT THE PARLIAMENT WISHED TO INTERPRET ITS DECISION OF 21 APRIL 1983 IT SHOULD VIEW THE ARGUMENTS SET OUT IN THE ACTION AS FURTHER GROUNDS IN SUPPORT OF HIS OBJECTIONS .

7 THE PARLIAMENT REPLIED ON 2 AUGUST 1983 THAT IT ADHERED TO ITS DECISION OF 21 APRIL 1983 . IT ADDED THAT , IN THE ABSENCE OF A PRIOR COMPLAINT WITHIN THE MEANING OF ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS , IT WAS UNABLE TO REPLY TO THE ARGUMENTS SET OUT IN THE ACTION .

8 IN A FURTHER LETTER , DATED 5 AUGUST 1983 , THE APPLICANT ASKED THE PARLIAMENT TO DEFINE THE STATUS OF ITS LETTER OF 21 APRIL 1983 . HE STATED , HOWEVER , THAT IN HIS VIEW THE LETTER INFORMED HIM OF A DEFINITIVE DECISION ON A REQUEST , AND NOT OF A DECISION ON A COMPLAINT . THE APPLICANT ADDED THAT IF THE PARLIAMENT CONFIRMED THAT INTERPRETATION HE WOULD WITHDRAW THE ACTION .

9 ON 12 AUGUST 1983 THE PARLIAMENT REPLIED THAT IT HAD NO OBJECTION TO CONSIDERING THE LETTER OF 11 JULY 1983 TO BE A COMPLAINT AND THAT IT TOOK NOTE OF THE WITHDRAWAL OF THE ACTION LODGED AT THE COURT .

10 LASTLY , ON 9 DECEMBER 1983 , THE APPLICANT SENT THE PARLIAMENT A LETTER ASKING WHAT DECISION HAD BEEN TAKEN WITH REGARD TO HIS COMPLAINT . HE RECEIVED NO REPLY .

11 ON 13 FEBRUARY 1984 THE APPLICANT BROUGHT THIS ACTION , THE ADMISSIBILITY OF WHICH HAS BEEN CHALLENGED BY THE PARLIAMENT IN AN OBJECTION LODGED ON 14 MAY 1984 .
12 THE PARLIAMENT BASES ITS OBJECTION OF INADMISSIBILITY ON THE GROUNDS THAT THE COMPLAINT AND THE ACTION ARE OUT OF TIME .

THE CLAIM THAT THE COMPLAINT WAS SUBMITTED OUT OF TIME
13 IT IS NOT CONTESTED THAT THE APPLICANT SUBMITTED A COMPLAINT TO THE EUROPEAN PARLIAMENT ON 11 JULY 1983 . HOWEVER , THE PARLIAMENT CONSIDERS THAT THAT COMPLAINT WAS SUBMITTED OUTSIDE THE PERIOD LAID DOWN IN ARTICLE 90 OF THE STAFF REGULATIONS , AND HENCE THAT THE PRESENT ACTION IS INADMISSIBLE BY VIRTUE OF ARTICLE 91 OF THE STAFF REGULATIONS .

14 THE PARLIAMENT POINTS OUT THAT THE INITIAL REQUEST WAS MADE ON 22 NOVEMBER 1982 , AND ARGUES THAT THAT REQUEST WAS EXPRESSLY REJECTED ON 21 FEBRUARY 1983 BY THE HEAD OF THE PERSONNEL DIVISION . IF THAT EXPRESS REJECTION IS REGARDED AS INVALID BECAUSE IT DID NOT EMANATE FROM THE APPOINTING AUTHORITY , IT MUST THEN BE HELD THAT THE APPLICANT ' S REQUEST WAS REJECTED BY IMPLICATION ON 22 MARCH 1983 BY VIRTUE OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . IN ANY CASE , THE LATEST DATE ON WHICH A COMPLAINT COULD BE SUBMITTED WAS 22 JUNE 1983 AND SO THE APPLICANT ' S COMPLAINT OF 11 JULY 1983 WAS OUT OF TIME .

15 THE APPLICANT CONTESTS THAT ASSESSMENT OF THE FACTS . IN HIS VIEW , THE PARLIAMENT CONSISTENTLY ALLOWED GREAT AMBIGUITY TO PREVAIL AS TO THE NATURE OF ITS VARIOUS PRONOUNCEMENTS . AS A RESULT , THE APPLICANT MAINTAINS , HE WAS ENTITLED TO CONCLUDE THAT HIS REQUEST HAD NOT BEEN REJECTED UNTIL 21 APRIL 1983 AND THAT HE THEREFORE HAD THREE MONTHS FROM THAT DATE IN WHICH TO SUBMIT A COMPLAINT .

16 IT IS APPARENT FROM THE ABOVE ARGUMENTS THAT THE DISPUTE BETWEEN THE APPLICANT AND THE PARLIAMENT ESSENTIALLY TURNS ON THE DATE ON WHICH THE APPLICANT ' S REQUEST WAS REJECTED , AND MORE PRECISELY ON WHETHER THE REQUEST WAS REJECTED ON 21 APRIL 1983 OR AT AN EARLIER DATE .

17 IT MUST FIRST BE OBSERVED THAT IN ITS LETTER OF 21 APRIL 1983 THE PARLIAMENT DID NOT INTIMATE TO THE APPLICANT THAT A DECISION REJECTING HIS REQUEST HAD ALREADY BEEN TAKEN . THE APPLICANT WAS THEREFORE ENTITLED TO INFER THAT THAT LETTER OF 21 APRIL 1983 CONTAINED THE DEFINITIVE DECISION ON HIS REQUEST AND THAT THE COMPLAINT SHOULD BE SUBMITTED WITH REFERENCE TO THAT LETTER .

18 THE SUBSEQUENT CORRESPONDENCE BETWEEN THE APPLICANT AND THE PARLIAMENT SHOWS CLEARLY THAT THE LETTER OF 21 APRIL 1983 MUST BE CLASSIFIED IN THAT MANNER . INDEED , IN ITS LETTER OF 2 AUGUST 1983 THE PARLIAMENT STATED THAT ' IT ADHERED TO ITS DECISION OF 21 APRIL ' .

19 LASTLY , IT MUST BE BORNE IN MIND THAT THE APPLICANT BROUGHT HIS FIRST ACTION BEFORE THE COURT ON 11 JULY 1983 , BUT OFFERED TO THE PARLIAMENT TO WITHDRAW THE ACTION ON THE EXPRESS CONDITION THAT THE PARLIAMENT CONSIDERED ITS LETTER OF 21 APRIL 1983 TO BE THE DEFINITIVE DECISION ON A REQUEST . THE PARLIAMENT REPLIED ON 12 AUGUST 1983 , STATING THAT IT ' TOOK NOTE OF THE APPLICANT ' S WITHDRAWAL OF THE ACTION LODGED BEFORE THE COURT ' . THE PARLIAMENT THEREBY AGREED TO CONSIDER ITS LETTER OF 21 APRIL 1983 TO BE THE DEFINITIVE DECISION ON A REQUEST .

20 AS A RESULT , IT MUST BE HELD THAT THE APPLICANT ' S REQUEST WAS REJECTED ON 21 APRIL 1983 , AND SO A COMPLAINT COULD BE LODGED AT ANY TIME PRIOR TO 21 JULY 1983 . SINCE THE COMPLAINT WAS LODGED ON 11 JULY 1983 , IT WAS WITHIN THE PERIOD LAID DOWN IN ARTICLE 90 OF THE STAFF REGULATIONS .

THE CLAIM THAT THE ACTION WAS LODGED OUT OF TIME
21 THE SECOND ARGUMENT ADDUCED BY THE PARLIAMENT IN SUPPORT OF ITS OBJECTION IS THAT THE APPLICANT ' S COMPLAINT WAS EXPRESSLY REJECTED ON 2 AUGUST 1983 . CONSEQUENTLY , THE APPLICANT ' S ACTION SHOULD HAVE BEEN DIRECTED AGAINST THAT EXPRESS REJECTION AND LODGED BEFORE 2 NOVEMBER 1983 .
22 THE APPLICANT CONTENDS THAT WHEN THE LETTER OF 2 AUGUST 1983 WAS SENT THE PARLIAMENT HAD NOT AGREED TO CONSIDER THAT THE APPLICANT HAD LODGED A COMPLAINT ON 11 JULY 1983 . ACCORDINGLY , THE PARLIAMENT COULD NOT HAVE REPLIED TO SUCH A COMPLAINT AT THAT TIME .

23 THE APPLICANT ' S ARGUMENT MUST BE ACCEPTED , SINCE HE COULD NOT HAVE EXPECTED AN EXPRESS REPLY FROM THE PARLIAMENT BEFORE THE PARLIAMENT HAD CONSIDERED HIS LETTER OF 11 JULY 1983 TO BE A COMPLAINT . INDEED , IT WAS NOT UNTIL 12 AUGUST 1983 THAT THE PARLIAMENT EXPRESSLY STATED THAT IT ' HAD NO OBJECTION TO CONSIDERING THE LETTER OF 11 JULY 1983 TO BE A COMPLAINT ' .

24 CONSEQUENTLY , THE PARLIAMENT ' S LETTER OF 2 AUGUST 1983 COULD NOT BE AN EXPRESS REJECTION OF THE COMPLAINT . FURTHERMORE , THAT ASSESSMENT OF THE FACTS IS BORNE OUT BY A PASSAGE IN THE LETTER , THE FINAL PARAGRAPH IN WHICH THE PARLIAMENT STATED THAT IT WAS UNABLE TO REPLY TO THE ARGUMENTS SET OUT IN THE ACTION LODGED BY J . K . ON 11 JULY 1983 SINCE NO PRIOR COMPLAINT HAD BEEN LODGED . IT IS CLEAR FROM THOSE WORDS THAT ON 2 AUGUST 1983 THE PARLIAMENT DID NOT YET CONSIDER THAT A COMPLAINT HAD BEEN LODGED ON 11 JULY 1983 . A FORTIORI THE PARLIAMENT ' S LETTER OF 2 AUGUST 1983 COULD NOT BE DEEMED TO BE AN EXPRESS REPLY TO SUCH A COMPLAINT .

25 SINCE NO EXPRESS REPLY WAS MADE TO THE APPLICANT ' S COMPLAINT , THE PERIOD PROVIDED FOR IN ARTICLE 90 OF THE STAFF REGULATIONS FOR IMPLIED DECISIONS APPLIES . CONSEQUENTLY , THIS ACTION HAS BEEN BROUGHT WITHIN THE PERIOD LAID DOWN BY THE STAFF REGULATIONS .

26 THE TWO ARGUMENTS ADVANCED BY THE PARLIAMENT IN SUPPORT OF ITS OBJECTION OF INADMISSIBILITY ARE UNFOUNDED AND HENCE THE OBJECTION MUST BE DISMISSED .

ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
( 1 ) DECLARES THAT THE APPLICATION IS ADMISSIBLE ;

( 2 ) ORDERS THAT THE PROCEDURE BE RESUMED WITH REGARD TO THE SUBSTANCE ;

( 3)RESERVES THE COSTS .