C-5/65
ECLI:EU:C:1965:124
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JUDGMENT OF THE COURT (SECOND CHAMBER) <ap note>1</ap note> 14 DECEMBER 1965
Andre Saudray v Commission of the European Economic Community
Case 5/65
Summary
Procedure — Judgment granting annulment — Legal effects — Limited to the parties and to the persons directly concerned by the measure annulled — Judgment constituting a new factor Concept —
Of. paragraph 3, summary in Case 43/64, [1965] ECR.
In Case 5/65
ANDRÉ SAUDRAY , an official of the European Economic Community, residing at Overijse (Belgium), by Marcel Gregoire, Advocate of the Cour assisted
d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 boulevard Grande-Duchesse-Charlotte,
applicant,
v
COMMISSION THE EUROPEAN ECONOMIC COMMUNITY respresented by its OF
,
Legal Adviser, Louis de la Fontaine, acting as Agent, with an address for service in Luxembourg at the offices of Henri Manzanarès, Secretary of the
Legal Department of the European Executives, 2 place de Metz,
defendant,
Application for annulment of the refusal of the defendant on 29 October 1964 to classify the applicant in Grade A6 with effect from 1 January 1962,
THE COURT (Second Chamber)
composed of: W. Strauß (Rapporteur), President of Chamber, A. M. Dormer and R. Monaco, Judges,
Advocate-General: J. Gand Registrar: A.Van Houtte
gives the following
1 — Language of the Case: French.
JUDGMENT OF 14. 12. 1965 — CASE 5/65
JUDGMENT
Issues of fact and of law
I — Facts 2. Rule that the applicant must be re
classified A6, Step 1, in Grade as
The facts upon which the present case from 1 January 1962, with all con
fol is based may be summarized as sequences arising therefrom in 'law; lows: 3. Order the Commission of the EEC T he applicant entered the service or to pay to the applicant the arrears
the defendant on 16 June 1958. He was of salary which, taking into account
first posted to the Salary and Missions his grade, are due to him since 1 Department and classified in accordance January 1962; with the table then in force in Grade 4. By way of damages, order the Com B6, Step 1. mission of the EEC to pay to the
In January 1959, he was given the post applicant interest on the arrears of
of Head of the Special Cases Section salarydue, at a rate to be fixed by which is part of the Staff Administration the Court;
Division; he has 'been in this post until 5. Order the Commission of the EEC the present time. to pay the costs;
Alter being given Step 5 of his grade 6. Take note that the applicant reserves
on 1 December 1961, he was integrated the right to put forward supplemen
by a decision of 12 December 1962 in tary evidence in support of his sub
Step 5 of Grade B1 which corresponds missions during the course of the
to Grade B6 of the old system. proceedings and taking into account
On 3 August 1964, he made an appeal the arguments of the Commission of
through official channels to the de the EEC'. fendant requesting his classification in In his reply he repeats his conclusions, Grade A6 as from 1 January 1962. but amends point 2 to read: 'Step 5'. On 29 October 1964, a letter from the In its statement of defence and its re
President of the Commission informed joinder the defendant contends that the him that the Commission did not con Court should: sider it possible to make a favourable in 'dismiss the present application as reply to his request. admissible and unfounded on all points; it is this decision mat the ap against order the opposing party to pay the plicant has made the present applica
costs in accordance with the applicable tion which was lodged at the Court provisions'. Registry on 26 January 1965.
III — Submissions and II — Conclusions of the arguments of the parties parties
In his application the applicant claims The submissions and arguments of the that the Court should: parties the of concerning admissibility Commis 1. Annul the decision of the the application may be summarized as
sion of the EEC of 29 October 1964 folows:
to the extent to which it refused to The defendant raises the objection of
classify him as from 1 January 1962 the inadmissibility of the application on in Grade A6 with all consequences the ground that it is time-barred. In
arising therefrom in law; fact, the decision of 29 October 1964
SAUDRAY v COMMISSION
simply confirms that of 12 December attempts to obtain that grade by all the 1962, which the applicant failed to means open to him'. In particular, he dispute within the prescribed time- put forward his candidature for the A6 limit. in Notice No post mentioned Vacancy the application is time-barred even if 872; on being refused the post, he made the date on which time started to run a complaint without result.
is taken as 2 October 1963, the date on The defendant replies by relying upon
which the definitions of duties and the case-law of the Court according to
powers attaching to each 'basic post, which a complaint submitted under
adopted by the defendant in accordance Article 90 of the Staff Regulations can
Article 5 Staff Regula with (4) of the not extend the period prescribed by the tions, were brought to the knowledge said Regulations for appeals to 'the
of the staff. Court. Consequently the present appeal The applicant replies that the decision would only have been admissible if the
of 12 December 1962 was 'incapable of complaint to which it relates had been being challenged'. In fact, as appears made at the latest within the 'three
from the judgments of the Court in months following the publication of the
Joined Cases 20 and 21/63 and in abovementioned definitions, and this in- Joined Cases 79 82/63 (Rec. fact de and 1964, dependendy of the that those
213 511 de finitions did not the p. et seq.; p. et seq.), a adversely affect
cision concerning integration must be applicant.
dissociated from the right of every The judgments cited by the applicant
official to have his position regularized, do not amount to new factors, their
where necessary, according to the prin force of res judicata being limited to
between Fur ciple of the correspondence the parties to those proceedings.
de grade and post. Accordingly, this thermore, in those cases, unlike that of
cision could not be regarded as a the applicant, there was no dispute con
refusal to comply with the claims of cerning the level of seniority of the
the person concerned regarding his duties carried out by the person con
grade. cerned. With regard to the decisions as
Further, these decisions amount to new to reclassification taken following the
factors capable of reviving the right of said judgments in respect of officials
de appeal. In fact, they have led the other than the applicants in those cases, fendant to prepare a list of officials who the defendant was not legally obliged to have requested further take them. reclassification; more, prior to the said judgments both Lastly, among all the representations
the defendant and the applicant con made by the applicant to obtain a higher sidered that an official could attain a classification, the only one which counts, higher grade only by promotion or by from the point of view of time-limits,
competition. is the complaint of 3 August 1964. The publication of the definitions of
duties mentioned above must also be regarded as a new factor. Nevertheless IV — Procedure it was still not at this moment that time began to run in respect of the time- The procedure followed the normal
limit in question. In fact, far from ad course.
After Judge- versely affecting the applicant, the said hearing the report of the
definitions basis Rapporteur the Ad constitute the very of and opinion of the
his application. On the other hand, as vocate-General, the Second Chamber of
soon as the definitions enabled him to the Court decided that there was no
determine his grade, he increased 'his necessity for a preparatory inquiry.
JUDGMENT OF 14. 12. 1965 — CASE 5/65
The parties presented their oral argu The Advocate-General delivered his 2'
ments at the hearing on 3 November opinion at the hearing on December 1965. 1965.
Grounds of judgment
I —
Admissibility
The defendant raises an objection of inadmissibility on the ground that the application was not made within the prescribed period.
1. The application is directed against the refusal of the President of the
Commission on 29 October 1964 of the complaint made on the previous 3 August for the reclassification of the applicant in Grade A6 as from 1 January 1962.
This refusal may be regarded as confirmation of the decision of 12 December
1962, in so far as it appointed the applicant to Grade B1.
It is true that the applicant made neither a complaint through official channels
nor an appeal to the Court against this decision within the period laid down
by Article 91 of the Staff Regulations.
Nevertheless, the applicant cites the judgments of the Court in Joined Cases 20 and 21/63 and in Joined Cases 79 and 82/63 (Rec. 1964, p. 213 et seq., p. 511 et seq.), inferring therefrom that he could not have made an appeal
against the abovementioned decision.
In fact, he claims that the Court considered on that occasion that the decision
concerning integration must be dissociated from the right of the servant to
have his administrative position regularized.
The applicant fails to appreciate that, as these judgments accepted in respect of the officials concerned, he could at the time have submitted a request to
the defendant for such regularization and could have disputed a refusal
before the Court.
2. The applicant points out that the publication by the defendant in 1963 of the definitions of the duties and powers attaching to each basic post—the
definitions provided for by Article 5 (4) of the Staff Regulations — constituted
a new factor capable of causing the time in which to bring an appeal against the previous classification to start to run afresh.
SAUDRAY v COMMISSION
Although this argument is correct in itself, it must however be stated further that the applicant did not dispute this classification either within the period
laid down by the aforementioned Article 91, dating from the said publication.
It is true that the applicant alleges that, as soon as the definitions in question had enabled him to determine the grade to which he believed himself to be
entitled, he had 'increased his attempts to obtain that grade by all the means open to him '
Nevertheless, the fact remains that the complaint of 3 August 1964 was the first complaint and the only one dealing with his retroactive reclassification
on integration.
The approaches which he made in order to obtain a higher grade by way of promotion or of competition cannot be regarded as such a complaint, in view of the differences which exist between these two groups of requests in respect of their basis and their possible effects.
3. According to the applicant the abovementioned judgments of the Court also constituted new factors.
The only persons concerned by the legal effects of a judgment of the Court
annulling a measure are the parties to the action and those persons directly affected by the measure which is annulled.
Consequently, such a judgment can only constitute a new factor as regards those persons.
It is true that the judgments in question annulled decisions of the Commis
sion of the EEC refusing to regularize the position of the persons concerned
in accordance with the principle of the correspondence between duties and
grade laid down in Annex I to the Staff Regulations.
As those decisions only applied to the individual position of each person con
cerned, they cannot directly concern third parties, such as the applicant.
In these circumstances, the judgments in question cannot be regarded, in respect of the applicant, as new factors capable of causing the period for lodging an appeal against the decision classifying him in Grade B1 to start to run afresh.
It follows from the foregoing that the present objection is well founded and
that consequently the application must be dismissed as inadmissible.
OPINION OF MR GAND — CASE 5/65
II — Costs
The applicant has failed in his application.
Consequently, in application of the combined provisions of Articles 69 (2) and 70 of the Rules of Procedure, he must bear the costs of the case, with
the exception of those incurred by the defendant.
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 the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70;
Having regard to the Staff Regulations of Officials of the European Economic Community and of the European Atomic Energy Community, especially Article 91;
THE COURT (Second Chamber)
hereby:
I. Dismisses the application as being inadmissible; 2. Orders the applicant to pay the costs of the case, with me exception of the costs incurred by the defendant.
Strauß Dormer Monaco
Delivered in open court in Luxembourg on 14 December 1965.
A. Van Houtte W. Strauß Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL GAND <ap note>1</ap note> DELIVERED ON 2 DECEMBER 1965
Mr President, refusal of the President of the Commis Members of the Court, sion of the EEC on 29 October 1965 of his claim of the previous 3 August The application made to you by Mr that he should he reclassified as from 1 Andre Saudray is directed against the January 1962 in the career bracket of
1 — Translated from the French.