C-10/67

In Case 10/67

Johannes Coenraad Moulijn, an official of the Commission of the European Economic Community, represented and assisted by F. Salomonson, Advocate of the Dordrecht Bar, with an address for service in Luxembourg at the office of Jonkheer T.C.H .M .G. van Rijckevorsel, Roodt-sur-Syre, applicant,

Commission of the European Economic Community, represented by its Legal Adviser, L. de la Fontaine, assisted by J. Bourgeois, a member of the Legal Department of the European Executives, with an address for service in Luxembourg at the office of H. Manzanarès, Secretary of the Legal Depart­ ment of the European Executives, 2 place de Metz, defendant,

Application for the implementation of Article 2 (4) of Annex VII to the Staff Regulations of Officials of the European Economic Community and of the European Atomic Energy Community,

THE COURT (Second Chamber)

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

I — Facts dismiss the application as inadmissible; order the applicant to pay the costs in The facts may be summarized as fol­ accordance with the provisions applic­ lows: able'. By a letter or 22 December 1965 the applicant, an official of the EEC who had been established since 1 January III — Submissions and argu­ 1962, requested the Director-General of ments of the parties the Commission to treat Mrs Pircher, his former spouse, as if she were a The defendant takes the view that the dependent child, in accordance with application is inadmissible because it Article 2 (4) of Annex VII to the Staff was filed out of time. Regulations of Officials of the EEC. As the applicant did not file an appeal In a note of 4 February 1966 the Direc­ against the decision of the Director- tor-General of Administration refused General of Administration within the this request. By letters of 13 February prescribed period, he is precluded from 1966 and 13 May 1966 the applicant so doing. According to 'the principle re­ requested the Director-General to re­ peatedly laid down in the decided cases verse this decision. By notes of 1 April of the Court, a request under Article 90 1966 and 28 June 1966 the Director- of the Staff Regulations of Officials of General confirmed his decision. the EEC and EAEC can only cause a The applicant again repeated his re­ new period for appeal to the Court to quest, this 'time by sending a letter of run if the express or implied decision 11 November 1966 to the Commission. in question does not amount to a mere As the applicant did not receive a reply confirmation of an earlier decision. to this last request within the period Although the applicant leaves the ques­ laid down by Article 91 (2) of the Staff tion of the admissibility of his applica­ Regulations, he lodged the present ap­ tion to the wisdom of the Court, he plication against the implied decision of takes the view that the decisive factor refusal to be inferred from the silence is not the question whether the contested of the Commission. decision does or does not confirm pre­ vious decisions, but whether in the II — Conclusions of the meantime new factors have arisen which parties are capable of altering the legal position. He admits, moreover, that no such fac­ The applicant leaves the question of the tors have arisen in this case. admissibility of his application to be In addition the applicant submits that determined by 'the Court. all the correspondence to which the The defendant contends that the Court Commission refers may be regarded as should: an attempt to setde the dispute out of 'decide the question of the admissibility court, so that his only official com­ of the application in accordance with plaint is his request of 11 November Article 91 of the Rules of Procedure 1966 based on Article 90 of the Staff without hearing the main application; Regulations.

The present application is directed against the implied decision of refusal to be inferred from the silence of the Commission after receiving the applicant's complaint of 11 November 1966 whereby he repeated his request. Therefore this implied refusal amounts to a confirmation of the decision of the Director- General of Administration.

Under the provisions of Article 91 (2) of the Staff Regulations of Officials appeals shall be filed within three months from the date of notification of the decision to the person concerned.

Although it is true that a complaint under Article 90 of the Staff Regulations may be submitted at any time, it can only extend the period allowed under Article 91 (2) if lodged before the expiration of that period.

In this case the applicant's appeal to the Commission through official chan­ nels was made after the expiry of the period prescribed for appeal to the Court against the decision of the Director-General of Administration of 4 February 1966, which is the origin of this dispute and which all the sub­ sequent measures have merely confirmed.

The present application is therefore inadmissible as being out of time.

JUDGMENT OF 22. 6. 1967 — CASE 10/67

THE COURT (Second Chamber)

hereby:

I. Dismisses the present application as inadmissible;

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

Monaco Donner Strauß

Delivered in open court in Luxembourg on 22 June 1967.