C-5/76

1. An express decision rejecting a to run without any delay in complaint, adopted within the period notification being taken into account. for commencing proceedings and after the implied decision rejecting it 2. In the event of the belated within the meaning of the second notification on an act adversely indent of Article 91 (3) of the Staff affecting an official the period for Regulations, must be regarded as commencing proceedings must be arising at the date on which it was calculated from the date of adopted by the competent authority notification if the delay is not and as starting a new period to begin attributable to the person concerned.

In Case 5/76

HEINZ GÜNTHER JÄNSCH, an official of the Commission of the European Communities, residing at 23 rue des Cigales, Luxembourg, represented by Marcel Slusny, Advocate at the Cour d'appel, Brussels, 272 avenue Brugmann, 1180 Brussels, with an address for service at the home of Mr Jänsch,

applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, with an address for service in Luxembourg

1 — Language of the Case: French.

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

gives the following

JUDGMENT

Facts

The facts and arguments advanced by the An exception is provided for in the parties in the course of the written second paragraph of Article 98 of the procedure may be summarized as Staff Regulations in respect of officials follows: covered by Article 92, that is to say officials 'who occupy posts in the field of nuclear science calling for scientific or I — Facts technical qualifications and who are paid from appropriations in the research and 1. Article 45 (2) of the Staff Regulations investment budget'. of Officials (hereinafter referred to as 'the Staff Regulations') makes promotion 2. The applicant entered the service of from one category to another conditional the Commission of the EAEC in August on a competition. 1960 as a laboratory technician. As from

JÄNSCH v COMMISSION

3. On 16 December 1974 the By letter dated 2 October 1975 the Commission published in the Staff Commission replied expressly to the Courier under the second paragraph of applicant's complaint of 3 March 1975. Article 98 of the Staff Regulations The Commission informed him in

'procedures to be implemented prior to particular that it could not, on obvious decisions on the transfer from Category grounds of natural justice, extend the B to Category A of officials in the application of the 'Procedures' to officials scientific and technical services'. These other than those expressly covered by 'Procedures' stated that they related only Article 92 without infringing the express to officials covered by Article 92 of the provisions of Article 45 (2) of the Staff Staff Regulations. Regulations. Further the Commission said that it had organized general The applicant while recognizing that his competitions giving access to Category A post was paid from appropriations in the to candidates with a university degree in operational budget and not in the the field in question. In these research and investment budget, applied circumstances the Commission on 22 January 1975 for promotion to considered that it had acted in Category A using the form suggested in accordance with the principle of equality the annex to the above mentioned of treatment 'Procedures'. The letter from the Commission dated 2 On 12 February 1975 the applicant October 1975 addressed to the submitted a request under Article 90 (1) applicant's place of work was not

JUDGMENT OF 15. 6. 1976 — CASE 5/76

2. In his application the applicant 5. On hearing the report of the alleges in particular, as regards the Judge-Rapporteur and the views of the substance, that the 'Procedures' should Advocate-General, the Court (Second according to Article 110 of the Staff Chamber), decided to open the oral Regulations have been adopted after procedure on the objection without any consulting the Staff Committee and the preparatory inquiry. Staff Regulations Committee. Moreover, the 'Procedures' derogate from the provisions of Article 92 of the Staff III — Submissions and argu­ Regulations since the latter was not ments of the parties on the confined, as were the contested admissibility of the action 'Procedures', to officials belonging to the scientific and technical service. The 1. The defendant, the applicant with condition contained in the last part of regard to the procedural issue, claims the first paragraph of Article 92 of the that in so far as the action asks for the Staff Regulations that the officials in annulment of the decision of the question must be paid from Commission of 2 October 1975 and of appropriations in the research and the 'Procedures', an implied decision investment budget is not an additional rejecting the applicant's complaint of 3 requirement but an explanation. To March 1975, registered on 6 March 1975, consider it otherwise would lead to the took effect on 6 July 1975 in accordance introduction of discrimination contrary with Article 90 (2) of the Staff to the principle of equality between Regulations. This implied decision officials, enshrined in particular in should have been contested before 7 Article 5 (3) of the Staff Regulations. If October 1975 in accordance with the Article 92 of the Staff Regulations does second indent of Article 91 (3) of the discriminate there would be reason for Staff Regulations. The Commission's regarding it as contrary to the principle express rejection dated 2 October 1975 of equality between officials. was not notified to its addressee until 16

October 1975 on his return from leave. It also seem to be inadmissible since it has could not cause another period for not been preceded by any prior bringing an action to start to run since complaint through official channels. its notification was subsequent to the expiration of the period within which the 3. In so far as the application claims previous implied decision should have that Article 92 of the Staff Regulations been contested (second indent of Article should be annulled or at least declared 91 (3) of the Staff Regulations). inapplicable, the defendant submits that this claim can be considered only if the The action is likewise out of time on

by the fact that on 20 June 1975 the 4. The applicant, the defendant as applicant considered that he should ask regards the procedural issue, submits that his previous complaint, which had that as regards the annulment of the already been registered on 6 March 1975, decision of the Commission of 2 October should be re-registered. 1975 and the 'Procedures' he agrees that the request of 20 June 1975 has no effect 2.

Article 90 (2) of the Staff Regulations. The applicant then alleges that the Court in its judgment in Joined Cases 109/63 More particularly as regards the decision and 13/64, Muller [1964] ECR 663, took notified to the applicant on 30 June the view that the publication of a table 1975 the claim for its annulment would defining the duties and powers attaching

administration to retract a decision with regard to classification which can no The defendant could certainly not be longer be contested. mistaken as to the applicant's claims and submissions. According to the applicant only notification causes new periods to run Further the appointments which are the and the effect of the reply is suspended ultimate result of the implementation of until it is notified. the 'Procedures' should be annulled by the defendant of its own accord. The Whatever the legal construction the question of a prior complaint through Court considers it must adopt, whether it official channels does not arise in respect be the doctrine to be deduced from the of the necessary consequences of an judgement in Marcato, the judgment in annulment. Muller or the argument suggested by the applicant, the solution is to make the With regard to the argument that the new period run from notification of the contested measure does not adversely express rejection, that is to say in the affect him, the applicant says that if the present case, 16 October 1975. A posts which he can claim were filled, he would be frustrated even if the Moreover the applicant's normal leave 'Procedures' were ultimately annulled from 29 September to 15 October 1975 and the Court upheld him as regards the was not for the purpose of relaxation. annulment of Article 92 of the Staff The applicant remained at home in Regulations. Luxembourg to prepare for the L/A competitions. Up to 6 October 1975 at The arguments which the applicant has least he was at home in Luxembourg and set out with regard to the general subsequently he could easily have been consequences of the annulment of the reached at the administrative offices 'Procedures' apply likewise with regard where he was at the time of these more particularly to the annulment of competitions. Notification of the letter of the decision notified to the applicant on 2 October 1975 was thus unduly delayed 30 June 1975. and the defendant should in this respect produce the applicant's leave record sheet where all the details are to be 6. With regard to the annulment of found. Article 92 of the Staff Regulations the applicant is in complete agreement with Moreover to the three legal constructions the defendant in regarding the mentioned above may be added that admissibility of the objection to it as which consists in recognizing that depending on the admissibility of the periods are suspended when the end of a application. period falls during absence on normal leave or mission. If the inapplicability of Article 92 of the Staff Regulations were to result in Article 5. With regard to the annulment of the 45 (2) of the Staff Regulations being left decisions taken in implementation of the as the sole rule applicable to promotions 'Procedures', the applicant alleges that it the applicant would already obtain partial has always been recognized that it is satisfaction by reason of the fact that all possible in the course of the procedure to the officials covered by Article 92 of the give more details of one's claims and Staff Regulations would thus be in the even, according to the case-law of the same position.

Law

1 The application lodged at the Court Registry on 16 January 1976 seeks in particular the annulment of a decision of the Commission of 2 October 1975 rejecting a complaint brought by the applicant on 3 March 1975 and directed against the 'Procedures to be implemented prior to decisions on the transfer from Category B to Category A of officials in the scientific and technical services' published in the Staff Courier on 16 December 1974.

2 By an application on a procedural issue lodged on 20 February 1976 the defendant raised under Article 91 of the Rules of Procedure a preliminary objection of inadmissibility on the grounds of the alleged lateness of the application.

JUDGMENT OF 15. 6. 1976 — CASE 5/76

3 In support of this preliminary objection the defendant states in the first place that the applicant's complaint registered on 6 March 1975 was rejected by the refusal implied by the absence of a reply within the four months prescribed in the last subparagraph of Article 90 (2) of the Staff Regulations, that is in the present case before 7 July 1975, and this implied decision of refusal should therefore have been contested by an application to the Court before 7 October 1975 und the second indent of Article 91 (3) of the Staff Regulations.

4 It states that since the express decision of the Commission was not notified to the applicant until 16 October 1975, that is after the expiration of the period for bringing an appeal, it was impossible for it to have activated the last sentence of that provision, which provides that 'where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh'.

10 Only the notification enables him to have effective knowledge of the existence of the decision and the grounds by which the administration justifies it

11 Since notification took effect in the present case on 16 October 1975 the application lodged on 16 January 1976 was brought within the three months laid down in Article 91 (3) of the Staff Regulations.

12 Accordingly the preliminary objection of inadmissibility must be rejected.

On those grounds,

THE COURT (Second Chamber)

hereby:

Registrar President of the Second Chamber