JUDGMENT OF 15. 12. 1966 — CASE 31/65 FONZI v COMMISSION

In Case 31/65

THE COURT (First Chamber) composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and R. Lecourt, Judges, Advocate-General: K. Roemer Registrar: H. J. Eversen, Deputy Registrar

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts

The facts of the case may be summarized as follows:

In an earlier application (Case 27/64) the applicant asked the Court to annul the decision containing the promotions for the year 1963, posted up at Ispra on 9 January 1964. The Judgment of the Court (First Chamber) of 8 July 1965 dismissed the application as being unfounded (Rec. 1965, pp. 637 to 639).

The decision containing the promotions for the year 1964 was posted up on 9 October 1964.

The applicant, whose name did not appear on the list of officials promoted, appealed through the official channels against the abovementioned decision on 10 December 1964.

By letter dated 16 February 1965 the defendant notified the applicant of the decision rejecting his appeal through official channels taken on 3 February 1965.

In his application, lodged on 28 May 1965, the applicant asks the Court to annul the decision on promotions posted up on 9 October 1964 and the decision rejecting his appeal through official channels which reached him on 17 February 1965.

II — Conclusions of the parties

A —. In his application the applicant claims that the Court should:

‘1. Declare the application admissible and well-founded and, accordingly:

2. Annul the decision or group of decisions on promotion adopted by the defendant for 1964, at least to the extent that they concern promotions from Grade A 5 to Grade A 4, after first declaring unlawful all those resolutions of the defendant which constituted the logical and legal bases for the decision or group of decisions in question;

3. Annul the decision adopted by the defendant with regard to the applicant on 3 February 1965;

4. Order the defendant to pay costs;

5. Note that the applicant reserves all rights including the right to amplify at a later stage the submissions and arguments already set out, to raise new submissions and arguments if necessary, to produce new documents and request any measures of instruction which may prove necessary or desirable.’

B —. In its statement of defence the defendant contends that the Court should:

‘1. Declare Application 31/65 inadmissible;

2. Alternatively, declare it unfounded;

3. Order the applicant to pay the costs subject to the requirements of Article 70 of the Rules of Procedure.’

C —. In his reply the applicant claims:

‘On all the above grounds, and with all such reservations as have been made on the basis of the judgment since given by the Court in Joined Cases 27 and 30/64, and subject to the usual reservations, the applicant repeats the conclusions he has submitted and leaves to the discretion of the Court, should it see fit, to order of its own motion such measures of inquiry as are best suited to clarify the facts which have been set out.’

D —. In its rejoinder the defendant contends that the Court should:

‘1. Declare Application 31/65 inadmissible;

2. Alternatively, declare it unfounded;

3. Order the applicant to pay the costs subject to the requirements of Article 70 of the Rules of Procedure.’

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

A — Admissibility

The defendant contends that the application is inadmissible because it is out of time. The facts are, it says, that the decisions of promotion for the year 1964 were published by being posted up on 9 October 1964. The appeal through official channels lodged on 10 December 1964 by the applicant against these decisions was rejected by a decision of which he was notified on 17 February 1965.

According to the defendant, the period for lodging an appeal to the Court was extended by two days on account of distance, the applicant being habitually resident in Brussels at the time when he was notified of the decision rejecting his appeal through official channels and consequently the applicant should have lodged his application at the Court on 20 May 1965 at the latest, and he did not do so until 28 May 1965.

The applicant replies that his application was lodged within the limits.

1) In calculating the extension of the time-limits on account of distance what must betaken into account is not, he says, the country in which the applicant happens to be but the country where the advocate assisting him is resident and carries on his business. This is proved by the compulsory requirement that an official be assisted before the Court (Rules of Procedure, Article 58), the fact that the pleadings are signed by the advocate (ibid, Article 37) and the option of the parties to be assisted by an advocate resident in a country other than that in which they habitually reside.

2) Moreover, in view of the fact that the applicant was kept in the post under the Staff Regulations to which he had been appointed, he must be considered as still resident at Ispra and merely on temporary mission to Brussels. The defendant replies that the applicant's argument that the extension on account of distance should be calculated on the basis of the residence of the lawyer assisting the party is open to the following objections:

1) The period for lodging an appeal to the Court runs from the date on which notification of the contested measure which precedes the application was received; thus the extension cannot be calculated by reference to the residence of a lawyer who has yet to be appointed.

2) This theory would mean that an applicant for whom the period has expired could prolong it by ten days by choosing a lawyer resident in Italy.

3) The fact that the extension of time-limits on account of distance provides for habitual residence in European non-member countries and even in non-European countries confirms that it was intended to depend on the residence of the parties, not of their lawyers; for it is highly unlikely that any lawyer appearing before this Court, who must always be a member of the Bar of a Member State, would reside in a non-member country or in another continent. The defendant goes on to remark that the extra time allowed on account of distance is calculated on the place of residence of the person concerned, that residence is a question of fact, and that for the whole period of three months allowed for making an appeal by Article 91 of the Regulations, the applicant resided in Brussels. It adds that the application is also inadmissible on the ground that the improper application of Article 4 of the Regulations, the only remaining ground of complaint brought by the applicant, does not seem capable of prejudicing the regularity of the promotion procedure adopted by the Commission or, consequently, of prejudicing the applicant's chances of promotion.

B — The substance of the case

The applicant alleges that the decision on promotions for the year 1964 and also the previous decisions on the procedure to be followed with regard to promotions, while they are measures of a general nature, concern him directly and as an individual. They prevented his being considered for promotion to Grade A 4, they improperly excluded him from the consideration of the comparative merits of officials eligible for promotion and they were preceded by a procedure which infringed Article 4 of the Regulations.

The procedure followed with regard to promotions for 1964 is identical in all respects with that followed in 1963. Consequently the applicant refers the Court to the submissions and arguments already set out in Case 27/64, together with those presented by him in his appeal through official channels of 10 December 1964.

To sum up, the contested decisions are defective by reason of infringement of rules of law relating to the application of Community law, infringement of an essential procedural requirement and lack of competence:

they were adopted without having been preceded by the (written) consideration of the comparative merits of the officials eligible for promotion prescribed by Article 45 (1) of the Regulations;

they were adopted when the number of vacant posts, their nature, the duties attaching to them and the requirements to be met by candidates had not been previously brought to the notice of staff, as provided for by Article 4 of the Regulations ;

they were adopted after an irregular procedure whereby it was sought to substitute for the express provisions of Article 45 of the Regulations, which the Court has on several occasions declared to be a rule of law not requiring any measures to put it into operation, a devious and complex procedure, the practical result of which is to ride roughshod over the right of officials to claim a responsible assessment based on objective and comparable information, having regard also to Article 43 and others of the Regulations;

they were also adopted after an irregular procedure because the latter was in conflict with the procedures adopted by the other European Communities with regard to promotions and, consequently, was capable of giving rise to grave imbalances and discrimination between European officials;

they were adopted after a procedure which failed to guarantee officials their independence and their promotion on the basis of merit ‘on the broadest possible geographical basis from among nationals of Member States of the Communities’, which it is the essential aim of the Regulations to ensure;

in any event they were adopted in disregard of the provisions of Article 110 of the Regulations.

The applicant goes on to examine the judgment given by the Court (First Chamber) on 8 July 1965 (Rec. 1965, pp. 637 to 639), with regard to the rejection of the application for the annulment of the promotion decisions for 1963. He notes that this judgment has for the parties the force of res judicata, but only in respect of the matters on which the Court actually gave judgment.

The applicant states however that one of the points to which he had drawn attention during the oral proceedings was not settled by the Court; during those proceedings he alleged as part of the ground of infringement of essential procedural requirements and infringement of the Treaty and of rules of law relating to its application, that the defendant had infringed, besides numerous provisions in the Regulations, Article 4 of those Regulations, which lays down that every vacant post shall be notified to staff once it has been decided that the vacancy is to be filled.

In his opinion (Rec. 1965, p. 651) the Advocate-General held that the ground of infringement of Article 4 of the Regulations could not be considered because it was not raised until the oral proceedings, that is, too late.

According to the applicant the Court could not, even by implication, accept this point of view, for it has already taken into consideration arguments put forward by the parties in the course of the oral proceedings (See [1962] E.C.R. 462). In addition, the prohibition against raising fresh issues in the course of proceedings (Article 42 of the Rules of Procedure) does not include the grounds mentioned in Article 146 of the EAEC Treaty. And in Application 27/64, he says, the infringement of essential procedural requirements and of the Treaty or any rules of law relating to its application were raised at the start of the proceedings.

The applicant then says that in the present dispute the infringement of Article 4 of the Regulations is mentioned in the original application, as it was in the appeal through official channels (Schedule 6 to the application).

Consequently the application for the annulment of the contested decisions on the ground of infringement of essential procedural requirements and infringement of the Treaty and any rule of law relating to its application, especially Article 4 and the last paragraph of Article 5 of the Regulations, together with Articles 29, 30, 45 of the Regulations and Annex III thereto, is still justified.

The applicant proceeds to analyse the vacancy notice published by the defendant on 1 October 1964 (Notice V/P/4/64, Schedule 1 to the reply).

This document, he says, in no way explains how the defendant intends to fill the post in question and utterly fails to fulfil the strict conditions imposed by the Regulations with regard to promotion to safeguard the rights of officials. Quite simply, it does not say what are to be the powers and duties attached to the vacant posts to be occupied by way of promotion and the requirements to be fulfilled by candidates. There is reason therefore to ask oneself what can be the value of a consideration of the comparative merits of officials eligible for promotion carried out under conditions contrary to the provisions of the Regulations.

The defendant replies that it considers the application wholly without practical significance. The applicant, it says, has acknowledged that the procedure followed by the Commission with regard to promotions for 1964 is identical in all respects with that followed by it for promotions in 1963. And all the arguments invoked by the applicant in Case 27/64 were rejected by the Court in its Judgment of 8 July 1965.

The only submission not raised in Case 27/64 is the complaint that the Commission did not apply Article 4 of the Regulations. The defendant contends that it has always notified the staff of each vacant post, thus complying with the provisions of Article 4. It adds that promotion does not necessarily require the existence of a vacant post, and that promotions from one grade to a higher grade in the same category can be carried out whilst the official concerned remains in the same post.

The applicant replies that the defendant considers it sufficient to say that it has always notified staff of all vacant posts, without bringing any evidence to support the claim. But he observes that at the time of the promotion procedure for 1963 no such notice was ever posted.

As for the statement that promotions within the same category do not involve a change of post, the applicant notes that promotion from Grade A 5 to Grade A 4 for an official in the scientific and technical grades of the EAEC necessarily assumes the existence of a vacant post. Annex IB to the Regulations shows in fact that in the scientific and technical grades an official in Grade A 5 is in a lower career bracket than a Grade A 4 official.

The defendant replies in the following manner to the arguments set out by the applicant in his reply.

1. The applicant's criticisms regarding the judgment in Case 27/64 have no bearing on the present dispute and show a lack of due respect for the Court.

2. According to the defendant, Vacancy Notice No V/P/4/64 published on 1 October 1964 was a perfectly regular communication to staff and in accordance with the requirements of Article 4 of the Regulations. The notice preceded the promotion decisions which are dated 7 October 1964; it states the number of posts to be filled, shows the grade of each one, that is, their level, and names the relevant Directorate-General, the directorate and the department for each vacant post. Thus the definition of each post provides the staff with adequate information. The defendant remarks that Article 4 of the Regulations does not require the institution to explain how it intends to fill the vacant posts and that the applicant is confusing the application of Article 4 with that of Article 29 of the Regulations.

3. The defendant alleges that even if the abovementioned notice was irregular in some respects, the defect could not have any effect on the applicant's promotion prospects for 1964. The defendant says that the promotion procedure followed by the Commission of the EAEC, the regularity of which was confirmed by the Court in the judgment in Case 27/64, includes a consideration of the comparative merits of officials having completed the requisite length of service. This rule applies equally to promotions within a single career bracket and to promotions involving transfer to the next highest one. In 1964, then, as in preceding years, the comparative merits of the applicant, concurrently with those of other officials, were the subject of a consideration by the Commission. The defendant cannot see, therefore, how an assumed irregularity in the notification to staff carried out under Article 4 of the Regulations could have prejudiced the applicant as regards his eligibility for promotion, nor how the applicant can challenge on that ground the procedure for promotions followed in 1964.

4. The defendant says that it is aware that moving from Grade A 5 to Grade A 4 in the scientific and technical services entails entry into a new career bracket, which presupposes the existence of a vacant post. Precisely for that reason, it says, it applied Article 4 of the Regulations by publishing the vacancy notice on 1 October 1964.

IV — Procedure

According to the defendant the application was lodged after expiry of the period allowed for so doing, which means that it is inadmissible as being out of time.

The other pleadings of the parties were lodged within the prescribed periods and the procedure followed the normal course.

During the hearing on 9 March 1966 the Court (First Chamber), after hearing the preliminary report of the Judge-Rapporteur and the Advocate-General, decided to open the oral procedure without any preparatory inquiry.

The oral submissions of the parties were heard in Court on 6 October 1966.

Mr Advocate-General Roemer delivered his opinion at the hearing on 19 October 1966.

Grounds of judgment

I — Admissibility

The defendant alleges that the applications for annulment of the decisions concerning promotion from Grade A 5 to Grade A 4 notified by being posted up on 9 October 1964, and the decision rejecting the appeal through official channels, notified on 17 February 1965, are inadmissible because they are out of time. Application 31/65 was not in fact lodged until 28 May 1965 whilst whereas the period of three months for lodging an appeal prescribed by Article 91 of the Staff Regulations of Officials, extended by two days on account of distance, expired on 19 May 1965.

The applicant replies that the extension on account of distance applicable in this case was ten days, not two, so that the period for lodging an appeal did not expire till the evening of 28 May 1965, 27 May 1965 being a holiday. In support of this interpretation he first claims, as he has already explained in Case 28/65, that because he was being kept on in the post to which he was appointed under the Staff Regulations, he should be considered as resident at Ispra and as merely on temporary mission to Brussels. He goes on to say, basing his argument on Articles 37 and 58 of the Rules of Procedure, that in calculating the extension of time on account of distance the country to be referred to is not the one where the applicant happens to be, but the country where the lawyer assisting him is resident and practising.

It is not disputed that on 17 February 1965, the date from which the period allowed for lodging an appeal begins to run, and for the whole of that time the applicant was in fact working in Brussels and not at Ispra.

Consequently, according to the wording of the decision on the extension of time-limits on account of distance comprising Annex II to the Rules of Procedure, the applicant was habitually resident in Belgium both on 17 February 1965 and during the subsequent months and could not, therefore, enjoy more than two days' extension on account of distance. Moreover the result of the express wording in the said Annex II: ‘parties … habitually resident’ is that what is to be considered here is the habitual place of residence of the parties, not of their lawyers.

The appeal through official channels, lodged within the period prescribed for an appeal to the Court, has preserved the time-limit under the Staff Regulations for making an appeal to the Court. The extension on account of distance is dependent solely on the facts, that is to say, on where the applicant has his place of residence. Accordingly the applicant, being habitually resident in Belgium, had three months and two days within which to bring an appeal to the Court. Since this period expired on 19 May 1965, the applications for annulment lodged on 28 May 1965 are inadmissible because they are out of time.

II — Costs

The applicant has failed in his submissions.

Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

However, Article 70 of the Rules of Procedure provides that in actions brought by Community officials costs incurred by institutions shall be borne by the latter.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Article 152 of the Treaty establishing the EAEC; Having regard to the Protocol on the Statute of the Court of Justice of the EAEC; Having regard to the Staff Regulations of Officials of the EAEC, especially Articles 90 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

1 Dismisses Application 31/65 as inadmissible.

2 Orders each party to pay its own costs.