C-31/65

JUDGMENT OF THE COURT (FIRST CHAMBER) 15 DECEMBER 19661

Fulvio Fonzi

y Commission of the European Atomic Energy Community

Case 31/65

Summary

1. Procedure — Extension of time-limits on account of distance — Applicant's place of residence to be taken into account (Rules of Procedure, Annex II, Article 1)

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, represented by its Legal Adviser, Antonio Marchini-Camia, 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:

(a) The annulment of the decision containing the promotions for the year 1964, dated 7 October 1964, published by being posted up on 9 October 1964;

1 — Language of the Case: Italian.

JUDGMENT OF 15. 12. 1966 — CASE 31/65

JUDGMENT

Issues of fact and of law

I — Summary of the facts II — Conclusions of the parties

The facts of the case may be summarized as A — In his application the applicant claims follows: that the Court should: In an earlier application (Case 27/64) the '1. Declare the application admissible and applicant asked the Court to annul the de­ well-founded and, accordingly: cision containing the promotions for the 2. Annul the decision or group of decisions year 1963, posted up at Ispra on 9 January on promotion adopted by the defendant 1964. The Judgment of the Court (First for 1964, at least to the extent that they Chamber) of 8 July 1965 dismissed the ap­ concern promotions from Grade A 5 to plication as being unfounded (Rec. 1965, Grade A 4, after first declaring unlawful pp. 637 to 639). all those resolutions of the defendant The decision containing the promotions for which constituted the logical and legal the year 1964 was posted up on 9 October bases for the decision or group of deci­ 1964. sions in question; The applicant, whose name did not appear 3. Annul the decision adopted by the de­ on the list of officials promoted, appealed fendant with regard to the applicant on through the official channels against the 3 February 1965; abovementioned decision on 10 December 4. Order the defendant to pay costs; 1964. 5. Note that the applicant reserves all By letter dated 16 February 1965 the defend­ rights including the right to amplify at a ant notified the applicant of the decision later stage the submissions and argu­ rejecting his appeal through official chan­ ments already set out, to raise new sub­ nels taken on 3 February 1965. missions and arguments if necessary, to In his application, lodged on 28 May 1965, produce new documents and request any the applicant asks the Court to annul the measures of instruction which may prove decision on promotions posted up on 9 necessary or desirable.' October 1964 and the decision rejecting his B — In its statement of defence the defend­ appeal through official channels which ant contends that the Court should: reached him on 17 February 1965. '1. Declare Application 31/65 inadmissible;

2. Alternatively, declare it unfounded; taken into account is not, he says, the 3. Order the applicant to pay the costs sub country in which the applicant happens to ject to the requirements of Article 70 of be but the country where the advocate as the Rules of Procedure.' sisting him is resident and carries on his C — In his reply the applicant claims: business. This is proved by the compulsory 'On all the above grounds, and with all such requirement that an official be assisted be reservations as have been made on the basis fore the Court (Rules of Procedure, Article of the judgment since given by the Court in 58), the fact that the pleadings are signed by Joined Cases 27 and 30/64, and subject to the advocate (ibid, Article 37) and the the usual reservations, the applicant repeats option of the parties to be assisted by an the conclusions he has submitted and leaves advocate resident in a country other than to the discretion of the Court, should it see that in which they habitually reside. fit, to order of its own motion such measures 2. Moreover, in view of the fact that the of inquiry as are best suited to clarify the applicant was kept in the post under the facts which have been set out.' Staff Regulations to which he had been D — In its rejoinder the defendant contends appointed, he must be considered as still that the Court should: resident at Ispra and merely on temporary

2. This theory would mean that an appli The defendant contends that the application cant for whom the period has expired is inadmissible because it is out of time. The could prolong it by ten days by choosing facts are, it says, that the decisions of pro a lawyer resident in Italy. motion for the year 1964 were published by 3. The fact that the extension of time-limits being posted up on 9 October 1964. The on account of distance provides for appeal through official channels lodged on habitual residence in European non- 10 December 1964 by the applicant against member countries and even in non- these decisions was rejected by a decision of European countries confirms that it was which he was notified on 17 February 1965. intended to depend on the residence of According to the defendant, the period for the parties, not of their lawyers; for it is lodging an appeal to the Court was ex highly unlikely that any lawyer appear tended by two days on account of distance, ing before this Court, who must always the applicant being habitually resident in be a member of the Bar of a Member Brussels at the time when he was notified of State, would reside in a non-member the decision rejecting his appeal through country or in another continent. official channels and consequently the ap The defendant goes on to remark that the plicant should have lodged his application extra time allowed on account of distance is at the Court on 20 May 1965 at the latest, calculated on the place of residence of the and he did not do so until 28 May 1965. person concerned, that residence is a ques The applicant replies that his application tion of fact, and that for the whole period of was lodged within the limits. three months allowed for making an appeal

JUDGMENT OF 15. 12. 1966 — CASE 31/65

prevented his being considered for pro European officials; motion to Grade A 4, they improperly ex — they were adopted after a procedure cluded him from the consideration of the which failed to guarantee officials their comparative merits of officials eligible for independence and their promotion on promotion and they were preceded by a the basis of merit 'on the broadest possi procedure which infringed Article 4 of the ble geographical basis from among Regulations. nationals of Member States of the Com The procedure followed with regard to pro munities', which it is the essential aim of motions for 1964 is identical in all respects the Regulations to ensure; with that followed in 1963. Consequently — in any event they were adopted in dis the applicant refers the Court to the sub regard of the provisions of Article 110 of missions and arguments already set out in the Regulations. Case 27/64, together with those presented The applicant goes on to examine the judg by him in his appeal through official chan ment given by the Court (First Chamber) on nels of 10 December 1964. 8 July 1965 (Rec. 1965, pp. 637 to 639), with To sum up, the contested decisions are de regard to the rejection of the application for fective by reason of infringement of rules of the annulment of the promotion decisions law relating to the application of Commun

stitute for the express provisions of In his opinion (Rec. 1965, p. 651) the

Advocate-General held that the ground of carried out under conditions contrary to the infringement of Article 4 of the Regulations provisions of the Regulations. could not be considered because it was not The defendant replies that it considers the raised until the oral proceedings, that is, too application wholly without practical signif late. icance. The applicant, it says, has acknowl According to the applicant the Court could edged that the procedure followed by the not, even by implication, accept this point Commission with regard to promotions for of view, for it has already taken into con 1964 is identical in all respects with that sideration arguments put forward by the followed by it for promotions in 1963.

EAEC Treaty. And in Application 27/64, The defendant contends that it has always he says, the infringement of essential pro notified the staff of each vacant post, thus cedural requirements and of the Treaty or complying with the provisions of Article 4. any rules of law relating to its application It adds that promotion does not necessarily were raised at the start of the proceedings. require the existence of a vacant post, and The applicant then says that in the present that promotions from one grade to a higher dispute the infringement of Article 4 of the grade in the same category can be carried Regulations is mentioned in the original out whilst the official concerned remains in application, as it was in the appeal through the same post. official channels (Schedule 6 to the applica The applicant replies that the defendant con

fied. in the scientific and technical grades of the The applicant proceeds to analyse the va EAEC necessarily assumes the existence of cancy notice published by the defendant on a vacant post. Annex I B to the Regulations 1 October 1964 (Notice V/P/4/64, Schedule shows in fact that in the scientific and tech 1 to the reply). nical grades an official in Grade A 5 is in a lower career bracket than a Grade A 4 offi This document, he says, in no way explains

JUDGMENT OF 15. 12. 1966 — CASE 31/65

Grounds of judgment

I — Admissibility

The defendant alleges that the applications for annulment of the decisions con­ cerning promotion from Grade A 5 to Grade A 4 notified by being posted up on 9 October 1964, and the decision rejecting the appeal through official channels, notified on 17 February 1965, are inadmissible because they are out of time. Application 31/65 was not in fact lodged until 28 May 1965 whilst whereas the period of three months for lodging an appeal prescribed by Article 91 of the Staff Regulations of Officials, extended by two days on account of distance, expired on 19 May 1965.

The applicant replies that the extension on account of distance applicable in this

FONZI v COMMISSION

case was ten days, not two, so that the period for lodging an appeal did not expire till the evening of 28 May 1965, 27 May 1965 being a holiday. In support of this interpretation he first claims, as he has already explained in Case 28/65, that because he was being kept on in the post to which he was appointed under the Staff Regulations, he should be considered as resident at Ispra and as merely on temporary mission to Brussels. He goes on to say, basing his argument on Articles 37 and 58 of the Rules of Procedure, that in calculating the extension of time on account of distance the country to be referred to is not the one where the applicant happens to be, but the country where the lawyer assisting him is resident and practising.

However, Article 70 of the Rules of Procedure provides that in actions brought by Community officials costs incurred by institutions shall be borne by the latter.

On those grounds,

Upon reading the pleadings;

JUDGMENT OF 15. 12. 1966 — CASE 31/65

Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Article 152 of the Treaty establishing the EAEC; Having regard to the Protocol on the Statute of the Court of Justice of the EAEC; Having regard to the Staff Regulations of Officials of the EAEC, especially Articles 90 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT (First Chamber)

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 19 OCTOBER 1966

(See Case 28/65, p. 494)