C-19/72

The period laid down in Article 91 (2) of the ascertain whether the prolonged silence of Staff Regulations of Officials, as that pro­ the administration following the request or vision was worded prior to 1 July 1972, complaint of the person concerned consti­ is unconditional; in particular, it therefore tutes negligence. applies without its being necessary to

In Case 19/72

Rudolf Thomik, a former official of the European Communities, represented by Maximilian Himmel, Advocate of the Landgericht, Düsseldorf, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 24b rue Phillippe-II,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Jürgen Utermann, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Emile Reuter, 4 boulevard Royal,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and Procedure Registry on 4 May 1972 the applicant claimed, inter alia, that the decision The facts and procedure may be summar­ ('Bescheid') of 21 February 1972, notified ized as follows: on 24 February 1972, should be annulled and that the Commission should be 1. By letter of 21 May 1971 the applicant, ordered to pay him, by way of resettlement on termination of service, applied to the allowance, an additional two months' Commission for the resettlement allowance salary plus interst at 4% as from 15 July provided for by Article 6 of Annex VII 1971. to the Staff Regulations of Officials. By In its statement lodged on 24 June 1972, letter of 25 May 1971 he submitted further the Commission, without adopting an that by virtue, in particular, of certain attitude with regard to the merits, put provisions of the regulations relating forward an objection of inadmissibility particularly to former ECSC officials, he based on Article 91 of the Rules of Pro­ was entitled to a resettlement allowance cedure. The applicant, in his statement equal to four months of his last basic lodged on 31 July 1972, challenged that salary. objection. The Director-General for Personnel and By order of 4 October 1972, the Court Administration of the Commission replied (Second Chamber) decided, having heard by letter of 24 June 1971 that he could the report of the Judge-Rapporteur and claim only two months' salary. Conse­ the views of the Advocate-General, to give quently, an order was made for payment a ruling on the objection without opening of the corresponding sum in German the oral procedure, in accordance with currency on 30 June 1971 and this sum was Article 91(3) and (4) of the Rules of paid to the applicant on 15 July 1971. By Procedure. letter of 8 July 1971 the applicant asked the Director-General to reconsider the position adopted by the Administration; II — Submission and arguments of by letter of 21 February 1972 the Director- the parties with regard to the General replied that he was maintaining admissibility of the action that position. By application lodged at the Court The submissions and arguments of the

It is apparent from the letter of 24 June The applicant replies that his letter of 1971 and from the credit transfer made on 8 July 1971 constitutes a complaint within 15 July that the Commission, in reply to the meaning of Article 91 of the Staff the applicant's requests of 21 and 25 May Regulations; this the Commission rejected 1971, took a decision within the meaning by its decision of 21 February, which was of Article 91 of the Staff Regulations of contested, in due time, by this application. Officials rejecting the applicant's claim for The Commission cannot rely on the expiry two additional months' salary. In order to of the period of two months laid down in challenge this decision in due time, the Article 91 of the Staff Regulations, in other applicant should have lodged, within three words, its own negligence in not replying months of notification, either an applica­ to the said letter until more than seven tion to the Court or a complaint followed months had elapsed and in having thereby by an application lodged within the pre­ disregarded its duty to give assistance, by scribed period. which it is bound even in relation to retired The present application would also be officials. Higher German courts have, on inadmissible if the letter of 8 July 1971 many occasions, rejected as being fraudu­ were to be considered as a complaint lent the plea of prescription relied on by a within the meaning of Article 91 of the debtor who had induced the creditor to Staff Regulations. In fact, in this case, the believe that he would continue negotiations complaint should be regarded as having with regard to the subject-matter of the been rejected by implication at the end of dispute. the period of two months provided for by The argument that the decision of 21 that provision. The applicant should then February 1972 is confirmatory in character have lodged an application against this is erroneous. The Commission justified that implied decision of rejection within a fur­ decision on additional legal grounds. The ther period of two months, in other words, intention to confirm the decision of 24 June at the latest in mid-November 1971. 1971 does not alter the fact that the The letter of 21 February 1971 did not contested decision is a measure deciding on re-open the period for lodging an applica­ the merits, with the result that the applicant tion ; its nature is merely confirmatory since cannot have lost the right on which he it repeats the legal considerations expressed relies.

2 In its statement on the procedural issue the Commission has contended that the application is inadmissable on the ground that it is out of time because the letter of 21 February 1972 merely confirmed the decision conveyed in the letter of 24 June 1971 by which the Director-General, for the first time, rejected the appli­ cant's request. The applicant is said to have failed to contest that decision before the Court within the period of three months laid down by Article 91 of the Staff Regulations of Officials. The Commission asserts that the action is also inad­ missible even if it is found that the letter of 8 July 1971, by which the applicant requested the Director-General to reconsider his attitude, constituted a complaint within the meaning of Article 90 of the Staff Regulations. In fact, in the Commis­ sion's opinion, in accordance with Article 91 of the Staff Regulations, the complaint must then be regarded as having been the subject of an implied decision of rejection taken at the end of a period of two months from the day on which the complaint was lodged and the applicant, on pain of being time-barred, should have contested the decision within a further period of two months, in other words, by mid- November 1971 at the latest.

3 The objection of inadmissibility must be judged on the basis of Articles 90 and 91 of the Staff Regulations of Officials in the form in which they were in force when the abovementioned letters were written — hereinafter referred to respectively as 'the former Article 90' and 'the former Article 91' — that is, without taking account of the amendments introduced by Articles 38 and 39 of Regulation (Euratom, ECSC, EEC) No 1473/72 of the Council, of 30 June 1972 (OJ, English Special Edition 1972, p. 703) which, according to the terms of Article 90 of that regulation, entered into force only on 1 July 1972.

6 Although this application, which is directed against the express decision of rejection of 21 February 1972, was brought in due time, that decision was however merely in confirmation of the implied decision mentioned above and of the letter of 24 June 1971 and, consequently, was not capable of re-opening the period for lodging an application. It cannot be objected in this case that the decision of 21 February 1972 contains new considerations of law or fact relating to the situation at the time of the implied decision of rejection on the ground that the Commission, to justify its attitude, advanced in that decision arguments supplementing those which it had already adduced in its letter of 24 June 1971. In this connexion, it suffices to note that the Commission did not at any time desist from its argument that the applicant's request was unfounded.

7 The applicant has also objected that the defendant cannot in good faith rely on the expiry of the period laid down in the former Article 91 of the Staff Regulations since this would allow it to take advantage of its own negligence in not replying to the letter of 8 July 1971 until more than seven months had elapsed.

8 This argument disregards the fact that the period in question is unconditional, that, in particular, it therefore applies without its being necessary to ascertain whether the prolonged silence of the institution constitutes negligence on its part.

9 The application is therefore inadmissible.

II — Costs

10 The applicant has failed in his application. According to Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. However, according to Article 70 of the Rules of Procedure, in proceedings commenced by servants of the Communities, institutions shall bear their own costs.

1. Dismisses the application as inadmissible;

2. Orders the parties to bear their own costs.

Pescatore Trabucchi Kutscher

Delivered in open court in Luxembourg on 22 November 1972.

A. Van Houtte P. Pescatore

Registrar resident of the Second Chamber