C-12/65

JUDGMENT OF THE COURT (SECOND CHAMBER) <ap note>1</ap note> 14 DECEMBER 1965­

Fred Bauer

v Commission of the European Economic Community

Case 12/65

Summary

1. Officials — Appeals — Expiry of time-limit — Request or complaint within the

to the parties and to the persons directly concerned by the measure annulled —

Judgment constituting a new factor — Concept

1. Whatever difference there may be 2. Cf. paragraph 1, summary in Case between a request and a complaint 52/64 [1965] ECR. neither can make available to their author a fresh period of time for 3. Cf. paragraph 2, summary in Case

filing appeals since they relate to the 52/64 [1965] ECR. legality of a measure which he had refrained from contesting within the 4. Cf. paragraph 4, summary in Case prescribed period. 43/64 [1965] ECR.

In Case 12/65

FRED BAUER , an official of Community, assisted by the European Economic Marcel Slusny, d'Appel, Brussels, Lecturer at the Advocate of the Cour

bourg at the offices of Henri Manzanarès, Secretary of the Legal Department of the European Executives, 2 place de Metz,

defendant,

Application for the classification of the applicant in Grade L/A4, Step 8,

THE COURT (Second Chamber)

composed of: W. Strauß, President of Chamber, A. M. Donner and R. Monaco (Rapporteur), Judges,

Advocate-General: J.Gand Registrar: A.Van Houtte

folows: The applicant claims that the Court

The applicant is in the should: employed

Language Service of the Commission of '1. Annul the decision the Com­ of

the EEC. On 21 December 1962 he mission of 23 September 1963 to

was integrated in Grade L/A5, Step the extent that it fixes the step at

8. By a decision of 23 September 1963 which the applicant must be . classi­

On 26 February 1965 the applicant of the action'.

made this application to the Court. In the reply he adds:

BAUER v COMMISSION

factor' 'Alternatively, order the defendant to a 'new with regard to the ap­

produce: plicant capable causing time to start of

1. The decision of the Commission of to run afresh since it only has effect on

The defendant contends that the Court the Director-General of Administration ap­ should: shows clearly that at that time the care­ in­ plicant's complaint was still under 'dismiss the application as being ful consideration and had not yet been admissible or, alternatively as being decision the subject of an implied of unfounded; rejection. On expiry of the period the order the applicant to bear the costs in of two months from submitting the com­

accordance with the relevant provisions'. plaint no decision had then been taken

confirming the decision of 23 September 1963. The present appeal is therefore III — Submissions and 'failure to take' de­ against an actual a arguments of the cision and was made with the very pur­

parties pose of avoiding the bar to the right

The submissions and arguments of the of arising from Article 91 action of the

Staff Regulations. parties may be summarized as follows: (b) Moreover, the principle that every complaint must be submitted within Admissibility the period for lodging appeals does not The defendant maintains that the appli­ prevent an extension of that period on

It is pointless to rely on the judgment ot complaint is to change an existing legal 7 July 1964 in Case 70/63 (Collotti v situation, and must therefore be lodged

Court of Justice) as a means of over­ within a strict time-limit, it cannot be coming that bar to the right of action. disputed that since a request may have In fact, that judgment cannot constitute as its purpose the recognition of a right

JUDGMENT OF 14. 12. 1965 — CASE 12/65

it may relate to the future and need not of grade affects the budget and fills a

necessarily be submitted within a fixed specified post. However this as not the

period of time. Since under the Staff case when only the step is altered, since Regulations an official's principal rights this affects neither the budget nor the

obliged to guarantee its officials the best the Staff Regulations mention the re­

possible treatment in accordance with quest and complaint at the same time

the most favourable interpretation of the for the sole purpose of making them

Staff Regulations. This is a basic legal subject to the same system.

principle which also corresponds to the The defendant ends by adverting to the requirement of 'maximum efficiency'

judgment of the Court in Joined Cases written into the preamble to the Staff 50, 51, 53, 54 and 57/64. Regulations. be The substance of the case (e) It must moreover noted that

supposes that thestep will only be fixed tion in L/A5, Step 8, was fully in ac­

after the integration procedure. The cordance with paragraphs (1) and (4) (b) purpose of observing this stability, more­ of the said Article 102 which relates to

over, is to prevent the breach of a speci­ the integration procedure. The reclas­

fied administrative or legal system. The sification in L/A4 on the other hand system could also be breached by alter­ does not form part of that procedure.

the Trans- ing a grade, since every determination The basic post of 'Head of

BAUER v COMMISSION

in­ grade, the same step which he had in sification, distinct from that of his accor­ his former grade, taking account of the tegration, that the applicant was provisions of Article 102 (4) (b). ded Grade L/A4 by decision of 23 The defendant on the other hand is or September 1963, because the duties of Section' the opinion that the reclassification in 'Head of the Terminology dispute did not arise from a revaluation which he carried out had to be treated of the post, since the criteria arising as equivalent to those of the 'Head Section' from the judgment in Case 70/63 with of the Translation within the Regu­ regard to steps were inapplicable to the meaning of Annex I to the Staff case in point. That judgment in fact lations. Therefore no infringement of relates to a case of revaluation of a post, Article 102 (1) of the Staff Regulations whilst in the case in question a mere was committed in this instance. evaluation is involved, as no post with­

After replying that both paragraph (1) in the meaning of the Staff Regulations and paragraph 4 (b) of Article 102 of existed —with regard to servants, such the Staff Regulations apply to officials of the Language Service, the applicant ob­ as the applicant, who were engaged by serves that the duties which he carried entry into force of contract — before the

the Staff Regulations. Moreover, al­ out during the period before the Regu­ lation entered into force were those though it is perfectly admissible that, not as in Case 70/63, the new classification of a 'Reviser', but those of a 'Head of

under Article 102 of the Staff Regula­ Regulations, were engaged on a con­

tractual basis. tions, all the more so since: — the decision as to classification in In these circumstances, the only rule

L/A4 was taken with retroactive applicable to the calculation of the step effect to 1 January 1962, the date to be accorded the applicant is that of

when 'the Staff Regulations entered ordinary law which appears to emerge

into force: from the body of the relevant provisions — the Staff Regulations do not provide of the Staff Regulations and which

for transfer to a higher grade other­ tends to avoid, so far as is possible, any wise than as a result of breach in the continuity of an official's promotion, competition or classification under salary structure throughout his career. Article 102 (1); The applicant replies that, even in the —

force, servants engaged by contract tion constitutes a revaluation of the

regula­ really came under a system of post.

tions from which they were unable to

demand particular derogations. On the IV — Procedure one hand, the applicant himself was the subject of a certain number of admin­ The written procedure followed the

istrative measures within a system sub­ normal course.

stantially resembling that of the Staff On the basis of the report of the Judge- Ad­ Regulations; on the other hand, the Rapporteur and after hearing the

The applicant has referred to the Court the Commission's failure to take a

decision with regard to his request or complaint of 30 October 1964, relating to the classification accorded him by the decision of 23 September 1963.

According to the defendant, the application is really directed against the decision of 23 September 1963 and is consequently inadmissible because it is out of time. Under Article 91 (2) of the Staff Regulations of Officials appeals to the Court shall be filed within three months from the date of notification of the disputed decision to the person concerned. A request or complaint

through official channels which has not been submitted within the said period cannot therefore avoid the time-bar resulting from the expiry of this period.

In the present case the decision as to classification of 23 September 1963 was notified to the applicant on 30 September 1963 at the latest. His request or complaint of 30 October 1964 was thus submitted after the expiry of the

period of three months prescribed by Article 91 (2) of the Staff Regulations.

between the two terms employed by Article 90 of the Staff Regulations. In fact neither a complaint nor a request on behalf of the person submitting it is capable of causing the period for lodging an appeal to start to run afresh, when such a complaint or request relates to the legality of a measure which

he has refrained from contesting within the prescribed period.

The notification to the applicant that his request or complaint was under

consideration is not of such a nature as to cause the period to start to run

afresh under Article 91. In fact such an interim reply amounts to a failure to give a decision, within the meaning of Article 91.

It therefore does not cause the time for bringing an appeal to the Court to

judgment can only constitute a new factor and cause the periods for bringing appeals to run afresh as regards these parties and persons.

As this is in is in­ not the case this instance, the application therefore

admissible.

Costs

The applicant has failed in his application.

Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. However, under Article 70 of theRules of Procedure, in proceedings commenced by servants of the Communities, institutions shall bear their own costs;

European Communities, especially Articles 69 and 70;

THE COURT (Second Chamber)

hereby:

1. Rules that Application 12/65 is inadmissible;

2. Orders the applicant to pay the costs of the action, with the excep­ tion of those incurred by the defendant.

Strauß Donner Monaco