JUDGMENT OF 22. 6. 1967 — CASE 10/67 MOULIJN v COMMISSION

In Case 10/67

THE COURT (Second Chamber) composed of: R. Monaco, President of Chamber, A. M. Dormer (Rapporteur) and W. Strauß, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows:

By a letter or 22 December 1965 the applicant, an official of the EEC who had been established since 1 January 1962, requested the Director-General of the Commission to treat Mrs Pircher, his former spouse, as if she were a dependent child, in accordance with Article 2 (4) of Annex VII to the Staff Regulations of Officials of the EEC.

In a note of 4 February 1966 the Director-General of Administration refused this request. By letters of 13 February 1966 and 13 May 1966 the applicant requested the Director-General to reverse this decision. By notes of 1 April 1966 and 28 June 1966 the Director-General confirmed his decision.

The applicant again repeated his request, this time by sending a letter of 11 November 1966 to the Commission. As the applicant did not receive a reply to this last request within the period laid down by Article 91 (2) of the Staff Regulations, he lodged the present application against the implied decision of refusal to be inferred from the silence of the Commission.

II — Conclusions of the parties

The applicant leaves the question of the admissibility of his application to be determined by the Court.

The defendant contends that the Court should:

‘decide the question of the admissibility of the application in accordance with Article 91 of the Rules of Procedure without hearing the main application; dismiss the application as inadmissible; order the applicant to pay the costs in accordance with the provisions applicable’.

III — Submissions and arguments of the parties

The defendant takes the view that the application is inadmissible because it was filed out of time.

As the applicant did not file an appeal against the decision of the Director-General of Administration within the prescribed period, he is precluded from so doing. According to the principle repeatedly laid down in the decided cases of the Court, a request under Article 90 of the Staff Regulations of Officials of the EEC and EAEC can only cause a new period for appeal to the Court to run if the express or implied decision in question does not amount to a mere confirmation of an earlier decision.

Although the applicant leaves the question of the admissibility of his application to the wisdom of the Court, he takes the view that the decisive factor is not the question whether the contested decision does or does not confirm previous decisions, but whether in the meantime new factors have arisen which are capable of altering the legal position. He admits, moreover, that no such factors have arisen in this case.

In addition the applicant submits that all the correspondence to which the Commission refers may be regarded as an attempt to setde the dispute out of court, so that his only official complaint is his request of 11 November 1966 based on Article 90 of the Staff Regulations.

IV — Procedure

The procedure followed the normal course.

The defendant in an interlocutory application of 17 April 1967 raised the objection of inadmissibility and asked the Court to rule on this preliminary objection in accordance with Article 91 (1) of the Rules of Procedure.

In his application of 10 May 1967 the applicant left the question of the admissibility of his application to the wisdom of the Court.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Second Chamber of the Court decided that no measure of inquiry was necessary.

The parties did not appear at the hearing on 14 June 1967.

The Advocate-General delivered his opinion at the hearing on 14 June 1967.

Grounds of judgment

The defendant has raised the objection of inadmissibility on the ground that the application was filed after the expiry of the prescribed time-limit.

The applicant's request for the implementation of Article 2 (4) of Annex VII to the Staff Regulations of Officials of the EEC was refused by the Director-General of Administration, the competent authority in this matter, by a decision of 4 February 1966 as set out in notes dated 1 April 1966 and 28 June 1966.

The present application is directed against the implied decision of refusal to be inferred from the silence of the Commission after receiving the applicant's complaint of 11 November 1966 whereby he repeated his request. Therefore this implied refusal amounts to a confirmation of the decision of the Director-General of Administration.

Under the provisions of Article 91 (2) of the Staff Regulations of Officials appeals shall be filed within three months from the date of notification of the decision to the person concerned.

Although it is true that a complaint under Article 90 of the Staff Regulations may be submitted at any time, it can only extend the period allowed under Article 91 (2) if lodged before the expiration of that period.

In this case the applicant's appeal to the Commission through official channels was made after the expiry of the period prescribed for appeal to the Court against the decision of the Director-General of Administration of 4 February 1966, which is the origin of this dispute and which all the subsequent measures have merely confirmed.

The present application is therefore inadmissible as being out of time.

Costs

The applicant has failed in his application.

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

However, under the terms of Article 70 of the said Rules of Procedure, in proceedings brought by officials or other servants of the Communities the institutions shall bear their own costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court or Justice or the European Economic Community; Having regard to the Staff Regulations of Officials of the European Economic Community, especially Articles 90 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70, THE COURT (Second Chamber) hereby:

I Dismisses the present application as inadmissible;

2 Orders the applicant to pay the costs of the action, with the exception of those incurred by the Commission.