C-40/71

JUDGMENT OF THE COURT (FIRST CHAMBER) 17 FEBRUARY 1972<apnote>1</apnote>

Denise Richez-Parise

v Commission of the European Communities

Case 40/71

Summary

1. Officials — Appeals — Time-limits — Aim — Strict nature (Staff Regulations, Article 91)

defendant,

1 — Language of the Case: French.

JUDGMENT OF 17. 2. 1972 — CASE 40/71

Application :

for the award to the applicant of compensation equivalent to that awarded by the Court to Mrs Fiehn by the judgment delivered on 9 July 1970, or for the reinstate­ ment of the applicant in the post which she held in the Commission before 1 October 1968,

alternatively, for the revision of the judgment given on 28 May 1970,

Issues of fact and of law

I — Summary of facts and proce­ would only have a right to that pension as dure from the age of 60, the applicant protested against this decision by a registered letter The facts giving rise to the present case and dated 23 December 1968 and submitted an the procedure may be summarized as application to the Court of Justice dated follows: 28 April 1969.

The applicant benefited from the excep­ This application was for: tional provisions intended to encourage voluntary termination of service in the (1) a declaration restoring the interpreta­ Commission when the Communities were tion originally adopted by the EEC of merged and left the service of the Com­ the pension rights provided for in mission on 1 October 1968. She maintains Article 5 of Regulation No 259/68 of that she was encouraged to do this by the the Council of 29 February 1968 prospect of having the right to a full (OJ English Special Edition, 1968 (I), pension from the age of 55. p. 30), and for an order that the ad­ When she discovered that the information ministration settle the applicant's previously given by the administration of claims in accordance with the inter­ the Commission was wrong and that she pretation ;

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with all the rights attaching thereto. Personnel replied that the question was under consideration. Having submitted a In the reply of 3 October 1969, submitted new letter of 15 February 1971 to the in Joined Cases 19, 20, 25 and 30/69 President of the Commission of the (Richez-Parise and Others), the applicants European Communities to which she amended their alternative claim as follows : received no reply, the applicant instituted the present proceedings before the Court 'Alternatively, should the above claim be of Justice by lodging an application at the rejected, for the annulment of the decision Court Registry on 8 July 1971. of 20 June 1968 terminating the service By an application of 17 September 1971, of the applicants. containing two separate documents, the Accordingly for an order that the EEC defendant raised the objection of in pay the applicants, including Mr Saudray admissibility in accordance with Article and Mrs Richez-Parise, who renounce 91(2) of the Rules of Procedure with their request for reinstatement, by way regard to the principal claim of the appli of damages sums amounting to three cant and the defendant submitted, in years' salary in each case.' accordance with Article 100 of the Rules of Procedure, its observations on the The Court of Justice dismissed the action alternative claim for the revision of the against the notices of payment of com

Article 5(7) of Regulation No 259/68 had been applicable to her. II — Conclusions of the parties The applicant was convinced that the difference between the two judgments was caused by the indication in the reply that The applicant claims that the Court she would no longer seek, in the alternative, should: her reinstatement whereas in Case 23/69 Mrs Fiehn had retained this claim: she (1) award her the compensation equivalent therefore applied on 10 September 1970 to that awarded by the Court to

Mrs Fiehn by the judgment delivered (b) The applicant's complaint of 10 Sep on 9 July 1970, or her reinstatement in tember 1970, made under Article 90 of the the post which she held in the Com Staff Regulations, to the President of the mission before 1 October 1968; Commission of the European Communities was followed by no express decision from (2) alternatively the Commission and was therefore the revise the judgment given on 28 May subject of an implied decision of rejection 1970. by virtue of the expiry of the period prescribed in Article 91 of the Staff The defendant contends that the Court Regulations. Since under that provision should: the period for making an appeal ran until 11 November 1970, the period had expired (1) rule, in accordance with Article 91 of when the applicant lodged her applica the Rules of Procedure of the Court tion on 8 July 1971. and without examining the substance The defendant further states that the reply of the case, that the applicant's of the Director of Personnel dated 15 principal claims are inadmissible; December 1970 to the complaint of 10 September 1970 was the result of a mistake. (2) rule that the alternative claim is That this action is out of time is further inadmissible or unfounded; evidenced by the fact that the period prescribed for seeking the annulment of (3) make an appropriate order as to costs. the decision terminating the applicant's service which was made in 1968 expired

This is that the parties, the subject-matter and evident from a comparison of the 44th the grounds in this case, 40/71, are ground of the judgment of 28 May 1970 identical with those in Case 19/69. It is and the 23rd ground of the judgment of evident from the content of the application 9 July 1970. The fact that the judgment of that the applicant was aware of this be 28 May 1970 was influenced by the appli cause she faces the consequences of the cant's mistake may constitute a ground identical nature of the actions by stating: for the Court to amend its decision. 'If the Commission invokes the principle The applicant rejects the defendant's of res judicata to avoid replying to the statement that the application was made complaint of 10 September 1970 the out of time: particularly by their letter of applicant requests the Court to revise the 25 December 1970 the departments of judgment given on 28 May 1970'. the Commission had allowed her to

The alternative claim (b) Since Article 99 (2) expressly stipulates : 'The application must be made against all The applicant observes that the conditions parties to the case in which the contested set out in Article 41 of the Staff Regula­ judgment was given', the applicant should tions are complied with if it is accepted have joined to the action the other parties that the Court was misled by the terms of to the judgment of 28 May 1971 in Joined the reply in Joined Cases 19, 20, 25 and Cases 19, 20, 25 and 30/69. The purpose of 30/69 and did not know that the applicant joining the others to the action is to prevent was still seeking to be reinstated in the the judgment from being altered without service of the Secretariat of the Com­ their having the opportunity to make mission, a fact which may have had a known their interests and to present their decisive influence. She does not challenge opinions and arguments. the defendant's opinion that she sub­ mitted the application for revision after (c) By relying on the alteration of the the period prescribed by Article 98 of the initial application in Case 19/69 as the Rules of Procedure, but goes on to state factual basis for this application for revi­ that the failure to observe this period must sion, the applicant is placing a false inter­ be imputed to the reply given by the pretation on the first paragraph of Article defendant on 15 December 1970 which 41 of the Protocol on the Statute of the made her confident that revision of the Court of Justice of the EEC. This provision judgment of 28 May 1970 would not be only applies to the discovery of new factual necessary. elements which constitute a material factor The defendant maintains that the claim in the case to be judged. The alteration, for the revision of the judgment of 28 May possibly by mistake, of a conclusion in 1970 is inadmissible for the following the course of proceedings before the reasons : Court of Justice cannot be regarded as such a fact within the meaning of the first (a) The applicant nowhere indicates the paragraph of Article 41 of the Statute of precise aspects of the contested judgment the Court. which call for revision. She gives no more than the following statement of reasons: (d) The provisions of the first paragraph 'If, therefore, it is quite clear that the of Article 41 require that the fact must Court can undertake a revision of the have been unknown to the party claiming judgment in question, it is equally clear the revision when the judgment was given. that the claim is well-founded. A mere Since legally the alteration in the initial comparison of the judgments given on application in Case 19/69 is deemed to May 1970 and 9 July 1970 and the similar have been made by the applicant herself, position of the applicants subject to these she cannot claim that this alteration was decisions are enough to establish this'. This unknown to her when the judgment was does not show any clear grounds of claim delivered.

1 By an application lodged at the Registry on 8 July 1971, the applicant has brought an action seeking, in the first place, the annulment of the implied refusal of the President of the Commission to award her compensation equivalent to that awarded by the Court of Justice to Mrs Fiehn by its judgment given on 9 July 1970 in Case 23/69 (Fiehn v Commission, [1970] ECR 547) or to reinstate her in the post which she occupied in the service of the Commission until 1 October 1968 and, in the second place, for the revision of the judgment delivered on 28 May 1970 in Joined Cases 19, 20, 25 and 30/69 (Richez-Parise and Others v Com­ mission, [1970] ECR 325).

2 The application therefore comprises two distinct actions governed by different rules as regards both procedure and judgment.

3 Nevertheless, since the claim for revision was only made in the alternative and seeks in substance the same result as the principal claim, it is proper that, for reasons which will appear subsequently, both claims should be adjudicated upon in the same judgment.

4 With regard to the principal claim the defendant Commission has raised various objections as to admissibility, and in particular that the claim was made out of time.

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5 Under Article 91 of the Staff Regulations, where the competent authority takes no decision in respect of a request or a complaint within two months from the date on which it was lodged, this shall be deemed to constitute an implied decision rejecting it against which an appeal may be lodged within two months.

12 In the alternative, in order to obtain the award which she seeks in her principal claim, the applicant seeks the revision of the judgment of 28 May 1970.

13 She states that the reply in Joined Cases 19, 20, 25 and 30/69 contained an amend­ ment of the initial request of the applicant in that it stated that she no longer sought her reinstatement and sought as compensation for the damage suffered by her an amount equivalent to three years' salary.

14 This amendment is said to have been submitted to the Court without her consent and to have misled the Court.

is She further states that this mistake had an influence on the decision given in the judgment of 28 May 1970 since it is expressly contained in the grounds of this judgment.

JUDGMENT OF 17.12. 1972 — CASE 40/71

16 Article 41 of the Protocol on the Statute of the Court of Justice of the EEC

22 It follows from this that the application for revision must be dismissed as in­ admissible.

Costs

23 The applicant has failed in her application.

24 Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

25 The defendant has suggested that in the present case, in derogation from the provisions of Article 70 of the Rules of Procedure, the applicant should be ordered to pay its costs in the case as being vexatiously and unreasonably caused.

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Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties as to the principal claim of the applicant ; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of the European Communities, especially Articles 90 and 91; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community, especially Article 41 ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 91, 92, 98, 99 and 100,

THE COURT (First Chamber)

hereby:

1. Dismisses the application as inadmissible;

2. Orders the parties to bear their own costs.

Mertens de Wilmars Donner Monaco