C-69/63

JUDGMENT OF THE COURT (FIRST CHAMBER) <apnote>1</apnote> 9 JUNE 1964

Mrs Anne-Marie Marcillat (nee Capitaine)

v Commission of the European Atomic Energy Community

Case 69/63

Summary

1. Officials — Appeals relating to decisions prior to the publication of the Regulations —

applies to previous decisions only period before the entry into force of

from the date of its publication. the Staff Regulations, the rules of This rule applies in particular to the Regulations, and especially those

disputes concerning the application of Article 91, cannot be applied of Article 102 of the Staff Regulations, before establishment has been duly which lays down transitional pro­ granted.

visions to enable the Staff Regula­ 3. It is generally accepted that public

tions to be applied to servants who servants employed on a contractual

are already employed. These pro­ basis are subject to the application of visions are in addition to the rules regulations relating to the function­ prescribed by the Staff Regulations ing of the service and that these for the recruitment of officials. regulations apply to servants taking 2. However, where there is a dispute up their duties.

Goergen, applicant,

v

COMMISSION of the European Atomic Energy COMMUNITY , represented by its Legal Adviser, Jean-Pierre Delahousse, acting as Agent, with an address for service in Luxembourg at the office of Henri Manzanarès, Secretary of the Legal Department of the European Executives, 2 place de Metz,

defendant,

Application for the reversal of the decisions withdrawing the separation

allowance following the applicant's marriage and for an order for the de­ fendant to pay the arrears from the date of such withdrawal;

I — Facts indicate the basic elements of remunera­

tion, namely the basic salary fixed by it The facts may be summarized as fol ws: and certain additional allowances. The

Administration used for this purpose a

The applicant was recruited in March duplicated form which was at that time 1960 a secretary in as the Commission in use for the recruitment of staff. In the of the EAEC. form it was stated that these provisions

The terms of the letter of engagement ' … may be cancelled at any time by (Schedule 1 to the application) which either side on one month's notice', and

was sent on 2 March 1960 and accepted that 'this letter is without prejudice to

condition relating to the residence of the report drawn up at the end of the first servant at the time of engagement. As six months of service. The applicant was the applicant fulfilled this condition, informed in addition that the provisions she received the allowance from the of the letter of engagement remained

first month of taking up her duties. unchanged.

On 6 May 1961 the applicant married By letter of 26 October 1961 (Schedule 7 Gérard Marcillat, an engineer, himself a to the application) the applicant asked

servant of the institution, working for the the Legal Department to resubmit her Centre at Ispra to which she had in the case to the Directorate General of

meantime been transferred. On 14 June Administration, as the decision of 14 1961 the applicant was notified of a June appeared to her to be inconsistent decision 'withdrawing the separation with the letter of engagement and the

following her 29 August. marriage'

The Director-General Administra­ 2 August 1961 opinion'

of expressed on

tion explained to the applicant on and, consequently, the decision of 14 2 August 1961 (Schedule 3 to the June. 'withdrawal'

application) that the of her The applicant lodged her application at separation allowance had been made the Registry on 22 June 1963, at the

in accordance with Article 9 (c) of the expiration of a period of four months

General Staff Regulations of the ECSC from the sending of another written

Moreover, on 29 August 1961, the local express or implied measures of the

directorate of Ispra notified the appli­ Administration directed towards that

cant (Schedule 4 to the application) that same end and that the defendant be her basic monthly salary was increased ordered to pay the arrears.

to 8350 BF, 'corresponding to Step 3 of It is also to be noted that the applicant

Grade 11 of Category C in the salary was established in February 1963 under scale of the ECSC applied provisionally Article 102 of the Staff Regulations of

by the Euratom Commission'. This officials of the EEC and EAEC. She decision, which took effect retroactively was asked in accordance with Article from 1 October 1960, was taken in the 104 of those Regulations to waive in

press agreement of the Administration, 14 June 1961 (Schedule 1A to the

made subject to the following conditon: application), by which the appli­

'Without prejudice to the dispute pend­ cant's separation allowance was with­

ing before the Court of Justice of the drawn following her marriage; European Communities (Case 69/63)'. 2. In so far as they constitute confirma­

tory decisions, the letters sent to the II — Conclusions of the parties applicant on 2 August 1961 and

4 May 1962 (Schedules 3 and 10 to

In her reply she claims that the Court of the Community and, pursuant to

should: Article 1, the status of official stems from Accept the conclusions set out in the the manner of appointment. As she was application and, consequently, order not appointed under the Staff Regula­ the defendant to pay the applicant tions, the applicant cannot be con­

the separation allowance from the sidered Community as an official of the

date of its withdrawal up to the and the time-limits provided for by the day.' present Regulations thus cannot operate against B. The defendant contends that the her. In the absence of provisions which Court should: limit in time the manner of proceeding Declare the application to be out of with this application, it is admissible. time and therefore inadmis ble; The defendant considers that this applica­

alternatively, dismiss it as unfo de; tion falls under the provisions of Article the applicant to costs.'

91 the Staff Regulations that it order pay the of and

lished under the conditions laid down in appeal have been validly lodged could

that Article. With the entry into force of at the Court within three months from

the Regulations, such servants were 14 June 1962, the date of publication, in

automatically made subject to the pro­ other words on 15 September 1962 at

visions of Article 91 as regards methods the latest.

of recourse. By that provision, the The applicant's attempt to obtain for authors of the Staff Regulations have herself a new time-limit by submitting a followed Article 152 of the EAEC complaint on 22 February 1963 to the Establish­ Treaty, by which: 'The Court of Justice administration of the Ispra shall have jurisdiction in any dispute ment was ineffective. That request, in so between the Community and its ser­ far as its aim was to have the case

by the old Staff Regulations of the taken on 14 June 1961 were still present

ECSC. at the time of her establishment. The The defendant then goes on to examine silence with which this complaint was

the admissibility of the application in met, in so far as it can be considered as

respect of each of the impugned deci­ equivalent to an implied decision of

sions. refusal, has thus a purely confirmatory According to the defendant, the present character and cannot have the effect of

application by the applicant is directed making the time-limit for appeal against against a decision of 14 June 1961 which the decision of 14 June 1961 start to

pealed to the Court no later than 31 The applicant denies that the time-limit

March 1962 to avoid being time-barred. for bringing an appeal specified in Although it appears, however, that, Article 91 of the Staff Regulations despite the provisions of the implement­ applies to servants who have not been

JUDGMENT OF 9.6.1964 — CASE 69/63

established. in fact sufficient to read the end of the

(a) Since, in the applicant's opinion, judgment to convince oneself that the

Article 152 of the EAEC Treaty pro­ Court was merely reaffirming the prin­

Authority (Rec. 1955-1956, p. 369, Sum­ concluded before the entry into force mary, paragraph 2), that a time-limit of the Staff Regulations. The applicant similar to that of Article 33 of the ECSC states on this point that the question of

Treaty and of Article 39 of the Statute of admissibility is closely connected with

the Court ofJustice of the ECSC cannot the substance of the case.

be applied by analogy. She infers from this that, as the matter

The Rules of Procedure of the Court in dispute is outside the ambit of the

of Justice of 3 March 1959 did not Staff Regulations, the applicant is not

of Procedure. 'difficulties of application of the Staff In Mirossevich it in­ respect of the decision, Regulations'; on the contrary the defendant replies that, although the cludes on a very general basis any dis­ Court dismissed the plea of inadmissi­ financial nature, pute, especially of a bility raised on the ground that the between one of the Communities and

application was out of time, it was any person to whom the Staff Regula­ because at that time there was no pro­ tions apply. The determinative cri­

vision laying down the time-limits for terion is consequently the status of the

bringing appeals in so-called disputes parties and not the legal nature of the

'concerning officials'. Today, however, relationship of employment which binds such a provision does exist: Article 91 them. From the entry into force of the

of the Staff Regulations. In respect of new rules the applicant possessed the

but sufficient to bring the present dispute their servants.

within the sphere of Article 91. The fact that this dispute has its origin in a 2. The implied decision of refusal result­

divergence interpretation regarding of ing from the silence in respect of the the scope of a contractual provision is request of 22 February 1963 not such as to remove it from the

ambit of Article 91, given that the The applicant asserts that, even if it action concerns one of the financial were admitted that the time-limits in elements of the legal relationship estab­ Article 91 of the Staff Regulations lished between the applicant and the applied to this dispute, the silence in institution employing her. respect of her request of 22 February legis' The 'ratio supports, if that were 1963 cannot be considered as a mere

de­ necessary, the interpretation taken from confirmation of a previous express

the text. To restrict the application of cision of refusal.

to by the very least let con­ given servants governed circumstance and at duration' tracts 'of limited as provided the applicant know what were the

by Article 214 (3) of the EAEC Treaty, consequences, with regard to her claim,

while, at the same time, that protection of the waiver of the contract.

is confined to narrow limits when it is a As the applicant 's legal position had question of officials or those entitled changed, her request of 22 February under them. 1963 deserved a new inquiry forming In short, Article 91 of the Staff Regula­ the basis for a new express decision. tions of officials and correspondingthe The Administration's silence which

provisions of the Conditions of Employ­ lasted for more than four months must

ment of Other Servants, which refer be regarded as an implied decision of

CASE 69/63

waiver of the said contract excludes, as B —

On the substance of the case it must, any retroactive effect to the time before establishment took place The applicant points out that the letter of and is subject, moreover, (with the engagement, which forms the contract

Administra­ her 5 March express agreement of the following acceptance on

tion) to an express reservation as re­ 1960, specifies clearly and fully the

gards the result of the present dispute. conditions for the grant of the separation

clearly provisional nature and it was of the place of residence at the time of

consequently only valid until the advent engagement. To be more precise, she

of subsequent decisions. At the time of comments that it does not in fact her establishment the applicant had mention the withdrawal of the allow­

thus the best reasons for pressing for a ance in the event of the marriage of the

new, and this time definite, decision. person concerned to another servant or

And that is what she did by her request official of the Community. Consequently of 22 February 1963. the Administration is disregarding the The defendant replies that the notes of applicant's right conferred by her con­

rejecting the claim presented by the manner by the new institutions to all

applicant on 24 July 1961, is merely their servants, leads inevitably to an

specifying the reasons for the decision over-formalistic solution which con­

of 14 June 1961 without altering its flicts with the principle of equal treat­

scope. ment accorded to all employees with

The defendant adds that it clearly fol­ the aim of avoiding discrimination.

MARCILLAT v COMMISSION

adversely affect the drawing up of a public law — with its servants. subsequent contract. By a decision of The applicant cannot moreover be 25 January 1958 the Councils authorized responsible for the delay in the imple­ the Presidents of the Institutions to mentation of the Staff Regulations of

Regula­ European Communities. apply the provisions of the Staff officials of the

tions of officials of the ECSC to senior The basic uncertainty in which the

officials. applicant, like the rest of her col­

This principle was then extended to all leagues, lived during the period before the staff of the institutions in Brussels. the entry into force of the Staff Regula­ With regard to this matter, see the tions gave rise to anxieties as numerous

from the date when the institutions applicant agreed with the application

were set up. This practice, which is by analogy of the provisions of the Staff connected with the very nature of the Regulations of the ECSC. From the

allowance at issue and was confirmed in evidence it appears that the opposite is

Luxembourg by the first Staff Regula­ the case. Far from being improper, the tions of the ECSC, became a rule of applicant's allegation is well-founded

good administration and was spon­ in law.

taneously applied in Brussels from the The applicant points out that the note

applicant does not intend to enter into occurred on 6 May 1961, her complaint 'ins of 24 July 1961 and the note of 2 August administration'

the and outs of to

which the defendant refers nor to dispute 1961. 'literal' the argument that a application The applicant then replies to the argu­

of the contract of engagement leads to a ments pleaded by the defendant in its result which is contrary to the principle statement of defence.

of equality of treatment granted to all 1. She by expressing serious starts

with the aim of avoiding discrimination. doubts as legality of the decision to the

the Court in its judgment of 15 July 1960 oneself that this is the case it is enough in Joined Cases 43, 45 and 48/59, von to read the issues of the Official Journal Lachmüller and Others v High Authority of the Communities in which the bud­

(Rec. 1960, pp. 937 and 938, Summary, gets published were (OJ of 28 August

paragraph 4) held that the position of 1959, 987; OJ of 16 February 1960, p.

servants of the ECSC before the entry p. 221; OJ of 7 February 1961, p. 187, into force of the Regulations is different etc.).

from the Com­ 2. The applicant then that of servants of new points out that, munities. during the period before the entry into The defendant replies that it is doubtful force of the Staff Regulations, there was whether Article 214 of the EAEC nothing to prevent the Administration Treaty and the corresponding provision from substituting for a contract of of the EEC Treaty directly confer on engagement of 2 March 1960 a contract the Councils the power of decreeing the based on the provisions of the Staff provisional application of the financial Regulations of officials of the ECSC. system of the ECSC not only in their The defendant replies that it had most

departments but also in those of the certainly been well-founded in its re­

EAEC ECSC The de­ Treaty was carried out, agree­ tions of the necessary.

ment was reached without reservation fendant considers however that it was

from that date to apply the financial not obliged to insist on formalism to

system in question to senior officials of that extent. The clearly brief, pro­

'parties'

the institutions which were to visional and uncertain nature of the 'decision'

by the institutions in Brussels had been, engagement.

even before the engagement of the 3. The applicant finally maintains that

applicant, the general, settled and well­ the application by analogy of the Staff known practice. Regulations of the ECSC to the con­

In addition, its extension to all cate­ tract created by the letter of engage­

gories of servants, which was carried out ment is only possible to the extent that

immediately with the desire for simpli­ the provisions of the said Regulations do fication and with the aim of avoiding not conflict with the terms of the letter

mining the commencement of the right IV — Procedure to the separation allowance following engagement, in other words the condi­ The statements of the parties were lod­ tion relating to the place of residence of ged in due form and within the pres­

the official during the six months before cribed time-limits and the procedure

that date. It is clear that, on this specific followed the normal course.

point, the Brussels contract stipulates a Having heard the preliminary report condition as to distance (70 km) which of the Judge-Rapporteur and the opinion

is different from that laid down by the of the Advocate-General, the First ECSC rules (25 km) and it is obvious Chamber decided at the hearing on

that on that point the contract prevails 22 January 1964 to open the oral pro­

withdrawing the grant of the separation allowance at issue, the time-limits

prescribed in Article 91 of the Staff Regulations began to run from the

publication of the Staff Regulations (14 June 1962) and had thus expired by the time the application was made (22 June 1963); the subsequent decisions, which are also dealt with in the application cannot be taken into account in

calculating the time-limits because they merely confirm the first decision.

The preliminary objection of inadmissibility raised by the defendant cannot be accepted.

Article 91, in so far as it lays down time-limits for the filing of appeals, applies to previous decisions only from the date of its publication.

In fact, if the immediate applicability of the new Staff Regulations to these

matters were to be accepted, this would amount to prejudging the decision to establish which, apart from the case of officials having benefited from establishment granted under the rules of the old Staff Regulations of officials

of the ECSC, is only granted under the conditions prescribed by Articles 102 et seq. of the Staff Regulations of the EEC and of the EAEC.

The applicant pointed out during the written procedure that she had been established on 6 February 1963.

As this claim has not been contradicted by the defendant one can infer from it that the time-limits for appeal against the decision of 14 June 1961 began

to run, in respect of the applicant, from 6 February 1963.

MARCILLAT v COMMISSION

obtain an amicable solution of his dispute with his Administration before

bringing a case to the Court.

The establishment of the applicant on 6 February 1963 had the effect of causing the time-limits under Article 91 to begin to run in respect of the

decision of 14 June 1961.

Thus the applicant acted with both diligence and good judgment in lodging an administrative complaint against the above-mentioned decision as early

The implied decision of refusal dating from 22 April 1963 is only relevant for the computation of the time-limits for the appeal.

In this case there are no grounds for the Court to raise the question of ad­

of its own motion. missibility

As the appeal was lodged within the prescribed time-limits it is admissible.

II — As to the substance of the case

The applicant alleges that her contract of engagement provides for a

The applicant's contract contains no term which derogates from these rules.

The provision of Article 9 (c) of the General Staff Regulations of the ECSC, which lays down a principle which is logically an integral part of the general rules concerning the functioning of the service, establishes that when a husband and wife are employed by the Community the separation allowance is only payable to the spouse whose salary is the higher.

The in rules concerning the system of salaries, allowances and pensions

force in the ECSC were expressly made applicable to servants employed on a contractual basis in the service of the Commission of the EAEC.

It can be seen from the communication published by the defendant in the Official Journal of the European Communities of 28 August 1959, p. 987, that 'in the absence of any other appropriate scale and in order to avoid any

discrimination between the different categories of the staff of Euratom, the Commission has applied the rules in use with the ECSC to all its servants'.

It follows from the foregoing considerations that the decision impugned correctly applied the provisions in force.

The application must be dismissed as unfounded.

III — Costs

The applicant has failed in her application.

Under the terms of Article 70 of the Rules of Procedure, in proceedings

MARCILLAT v COMMISSION

Having regard to the Rules of Procedure of the Court of Justice of the European Com unites;

Having regard to the Staff Regulations of officials of the European Atomic Energy Community;

THE COURT (First Chamber)

her by:

1. Dismisses Application 69/63 as unfounded;

2. Orders that each of the parties shall bear its own costs.

2 March 1960 and was thereby made

Miss Capitaine, a secretary at the Joint subject to the system of so-called Brus­

Nuclear Research Centre at Ispra, was sels contracts. Following her marriage 1 — Translated from the French.