C-34/59

JUDGMENT OF THE COURT (SECOND CHAMBER) 4 APRIL 1960 1

Raymond Elz v High Authority of the European Coal and Steel Community

Case 34/59

Summary

1. Rules of procedure — Replacement — Effects on periods for instituting proceedings

2. Periods — Expiry

defendant,

THE COURT (Second Chamber)

composed of: R. Rossi, President, A. M. Donner (Rapporteur) and Ch. L. Hammes, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

I-Summary of facts tion in a higher grade. As he received no re ply to this letter the applicant made the The facts giving rise to the present case present application on 15 July 1959. may be summarized as follows: II-Conclusions of the parties By a letter of 9 April 1954 the applicant was appointed on a temporary basis for three The applicant claims that the Court should: months as a 'comptable analyste' (book keeper engaged in statistical work) with the '1. Annul the decision of the President of High Authority; this posting was subse the High Authority of 9 July 1956 which quently extended to 31 December 1955. On proposed the application to the appli that date his contract was renewed for one cant of the provisions of the Staff Regu year. lations of Officials of the Community as an established official in Grade 9, Step 3 When the Staff Regulations for Officials of of Category B with effect from 1 July the Communities were established, the 1956 in so far as that proposal placed the President of the High Authority, in a letter applicant in Grade 9; of 9 July 1956, made an offer to the appli cant that the provisions of the Staff Regu

Nevertheless on 25 Sep of Category B, as from 1 July 1956; rule tember 1956 he accepted the offer made to that he is entitled to the emoluments him by the President of the High Authority and advantages of this grade as from 1 on 9 July 1956 while maintaining his com July 1956; plaint. In addition on 5 October 1956 in the presence of the Assistant Director of the Refer the matter for action by the High Personnel and Administration Department Authority;

ELZ v HIGH AUTHORITY

In this case, order the necessary ar­ Procedure of the Court of 21 February 1957. rangements to be made; It argues that the abrogation of the Rules of 5. Order the High Authority to bear the 21 February 1957 by the Rules of 3 March costs including lawyers' fees.' 1959 cannot retroactively confer on the ap­ plicant a right of action which had become The defendant contends that the Court extinguished under the previous rules. should: For his part the applicant relies on the fact '1. Rule that the application is out of time that the Rules of Procedure of the Court of and therefore inadmissible; 3 March 1959 do not fix a time-limit for ac­ tions by servants of the Communities. From 2. In the alternative, rule that the Court the time of the entry into force of these has no jurisdiction to adjudicate upon the Rules of Procedure, Article 110 thereof third and fourth heads of the application abrogated the prior Rules of Procedure of 21 and declare that the action is inadmissible; February 1957. The action was brought on 15 July 1959, that is when the new Rules of 3. Further in the alternative, dismiss the Procedure of the Court were in force. As the application as being without foundation Rules of Procedure of 21 February 1957 had with the ensuing legal consequences.' been abrogated they can consequently not be applied to the present case. III — Submissions and arguments of the parties (b) Secondly, with regard to the refusal to reclassify the applicant to be inferred from The submissions and arguments of the par­ the defendant's failure to answer his letter ties may be summarized as follows: of 5 May 1959, the defendant denies that this refusal had the effect of setting in mo­ A — Objections tion a new period for appealing against the decisions of 1956. The letter of 5 May 1959 1. As to the extinguishment of the right of constitutes nothing more than representa­ action tions which cannot set in motion hew limi­ tation periods enabling contentious pro­ The defendant alleges first that the applica­ ceedings to be instituted, especially as the tion is out of time and is therefore inadmis­ letter merely repeats the objections raised in sible. 1956.

in the table of grades and posts. This objec tract and of the provisional rules for staff of tion would hold good even if one accepted the institution. the applicant's view that actions brought by servants of the Communities as provided Servants must agree to this renunciation in for by Article 58 of the Staff Regulations writing. are not actions for annulment but actions in which the Court has unlimited jurisdiction. This renunciation cannot be applied to the detriment of servants in respect of the reim While the applicant claims that an action re bursement of expenses already incurred or lating to administrative matters is an action in the course of being incurred.' in which the Court of Justice has unlimited jurisdiction and deduces from this that the The applicant's reference to his letters of 2 Court may substitute a new decision for the August and 25 September 1956 and the fact decision which it annuls and that it may 'is that he obliterated by hand a passage in the sue orders directed against one party', the declaration of 5 October 1956 in his attempt defendant is of the opinion that even in ac to establish that he never intended to re tions brought by servants of the Commun nounce his position before the entry into ities, the Court of Justice does not itself force of the rules are of no effect; the inten have the power to take decisions which it tions of the applicant are of little import regards as justified but that it must confine ance as the only point at issue here is the itself to examining the contested decisions correct interpretation of a clear provision of without involving itself in the exercise of objective law. the powers of the administration. For his part the applicant believes that it is

riment. However, this reasoning cannot be of 'comptable analyste' which was only accepted since, by accepting his establish used in the first exchange of letters in 1954. ment which had in the meantime taken place, the applicant renounced his rights B — The substance of the case under the original contract. These consider ations are evident from the text of Article The applicant alleges that his functions are 60 of the Staff Regulations: those of a 'comptable analyste' according to the contract of 1954 and he further argues 'Appointments on a definitive or probatio that from the time of his appointment they nary basis carried out in implementation of have remained the same. these transitional provisions shall take ef fect from the date set out in the decision ap It is true that the post of 'comptable ana pointing the official. Officials retain the lyste' is in itself mentioned nowhere.

ELZ v HIGH AUTHORITY

The applicant was never an assistant ac­ of the latter in respect of classification. The counting officer; he must be regarded as an High Authority was acting in exercise of accounting officer having special duties; these powers in classifying the applicant in this specialization is an argument in favour Grade 9. of his classification in Grade 7 rather than in Grade 8. The applicant alleges further that the table of posts is intended to guide the High Au­ The defendant replies that the applicant's thority in organizing its departments and reasoning is such as to once again place im­ moreover to guarantee the rights of various portance on his position before the entry officials. In the present case we must exa­ into force of the Staff Regulations and that, mine whether these purposes have been fo­ in spite of the fact that his appointment by lowed as regards the applicant. contract may render him eligible to have the provisions of the Staff Regulations ap­ The defendant replies that the post of plied to him, a distinction must be made be­ 'comptable analyste' has not been inserted tween application of the provisions of the in the table of posts and if the reasoning of Staff Regulations and classification and it is the applicant was adopted one would be en­ thus scarcely possible to talk of a right to a titled to deduce that the post has been abol­ particular classification. On the contrary, ished. However for a precise criterion refer­ having had the provisions of the Staff Regu­ ence may be made to remuneration. The lations applied to him, the applicant may applicant received identical remuneration not derive from his previous position any before and after the application to him of rights other than those constituted by the the provisions of the Staff Regulations. application to him of the provisions of the Staff Regulations. After having the provi­ sions of the Staff Regulations applied to IV — Procedure him, he cannot invoke against the defend­ ant rights capable of restricting the powers The procedure followed the normal course.

a right of action for the bringing of which the period prescribed in the former rules had expired long before the entry into force of the new Rules of Procedure. On the contrary, the entry into force of the new Rules of Procedure affects neither the rights of action accrued before that date nor the extinguishment of rights dur­ ing the time when the former rules were in force.

In the course of the oral proceedings the applicant further alleged that as the con­ tested decisions occurred before the entry into force of the Rules of Procedure of 21 February 1957 he had acquired an unlimited right of action.

This view must be rejected since one of the main purposes of the rules of 1957 was precisely to fill in the substantial gap existing in the Staff Regulations of Of­ ficials by placing an exact time-limit upon the rights of action of servants of the Communities.

The applicant secondly claims that his action is also directed against the implied refusal to be inferred from the failure to reply to his letter of 5 May 1959.

However, this letter merely reiterates the objections already formulated by the ap­ plicant during 1956 and is directed against the fact that the consequences of the decision taken at that time still persist in 1959.

Accordingly, the action against the implied refusal referred to in practice consti­ tutes nothing more than an attempt to acquire a fresh right of action against a de­ cision which the applicant was no longer able to contest.

Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Coal and Steel Community of 21 February 1957 for disputes referred to in Article 58 of the Staff Regulations of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT (Second Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Rossi Donner Hammes