P.1008
ADMISSIBILITY
THE APPLICANT HAS REFERRED TO THE COURT THE COMMISSION'S FAILURE TO TAKE A DECISION WITH REGARD TO HIS REQUEST OR COMPLAINT OF 30 OCTOBER 1964, RELATING TO THE CLASSIFICATION ACCORDED HIM BY THE DECISION OF 23 SEPTEMBER 1963 .
ACCORDING TO THE DEFENDANT, THE APPLICATION IS REALLY DIRECTED AGAINST THE DECISION OF 23 SEPTEMBER 1963 AND IS CONSEQUENTLY INADMISSIBLE BECAUSE IT IS OUT OF TIME . UNDER ARTICLE 91(2 ) OF THE STAFF REGULATIONS OF OFFICIALS APPEALS TO THE COURT SHALL BE FILED WITHIN THREE MONTHS FROM THE DATE OF NOTIFICATION OF THE DISPUTED DECISION TO THE PERSON CONCERNED . A REQUEST OR COMPLAINT THROUGH OFFICIAL CHANNELS WHICH HAS NOT BEEN SUBMITTED WITHIN THE SAID PERIOD CANNOT THEREFORE AVOID THE TIME-BAR RESULTING FROM THE EXPIRY OF THIS PERIOD . IN THE PRESENT CASE THE DECISION AS TO CLASSIFICATION OF 23 SEPTEMBER 1963 WAS NOTIFIED TO THE APPLICANT ON 30 SEPTEMBER 1963 AT THE LATEST . HIS REQUEST OR COMPLAINT OF 30 OCTOBER 1964 WAS THUS SUBMITTED AFTER THE EXPIRY OF THE PERIOD OF THREE MONTHS PRESCRIBED BY ARTICLE 91(2 ) OF THE STAFF REGULATIONS .
THE APPLICANT MAINTAINS THAT HE SUBMITTED TO THE COMMISSION NOT A COMPLAINT, BUT A REQUEST ' THE PURPOSE OF WHICH WAS THE RECOGNITION OF A RIGHT '. HE EMPHASIZES THAT IT IS NOT NECESSARY FOR SUCH A REQUEST TO BE SUBMITTED WITHIN A PRESCRIBED PERIOD .
IT IS NOT NECESSARY TO GO INTO THE DISTINCTION WHICH THE APPLICANT MAKES BETWEEN THE TWO TERMS EMPLOYED BY ARTICLE 90 OF THE STAFF REGULATIONS . IN FACT NEITHER A COMPLAINT NOR A REQUEST ON BEHALF OF THE PERSON SUBMITTING IT IS CAPABLE OF CAUSING THE PERIOD FOR LODGING AN APPEAL TO START TO RUN AFRESH, WHEN SUCH A COMPLAINT OR REQUEST RELATES TO THE LEGALITY OF A MEASURE WHICH HE HAS REFRAINED FROM CONTESTING WITHIN THE PRESCRIBED PERIOD .
THE NOTIFICATION TO THE APPLICANT THAT HIS REQUEST OR COMPLAINT WAS UNDER CONSIDERATION IS NOT OF SUCH A NATURE AS TO CAUSE THE PERIOD TO START TO RUN AFRESH UNDER ARTICLE 91 . IN FACT SUCH AN INTERIM REPLY AMOUNTS TO A FAILURE TO GIVE A DECISION, WITHIN THE MEANING OF ARTICLE 91 .
IT THEREFORE DOES NOT CAUSE THE TIME FOR BRINGING AN APPEAL TO THE COURT TO START TO RUN AFRESH .
THE APPLICANT RELIES ON THE NEW FACTOR CONSTITUTED, ACCORDING TO HIM, BY THE JUDGMENT OF 7 JULY 1964 IN CASE 70/63 IN A DISPUTE BETWEEN THE COURT AND ONE OF ITS SERVANTS .
THIS JUDGMENT ANNULLED AN INDIVIDUAL DECISION CONCERNING THE CLASSIFICATION OF THE SAID SERVANT .
THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE TAKEN BY AN INSTITUTION ARE THE PARTIES TO THE ACTION AND THOSE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED . SUCH A JUDGMENT CAN ONLY CONSTITUTE A NEW FACTOR AND CAUSE THE PERIODS FOR BRINGING APPEALS TO RUN AFRESH AS REGARDS THESE PARTIES AND PERSONS .
AS THIS IS NOT THE CASE IN THIS INSTANCE, THE APPLICATION IS THEREFORE INADMISSIBLE .
THE APPLICANT HAS FAILED IN HIS APPLICATION .
UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS;
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . RULES THAT APPLICATION 12/65 IS INADMISSIBLE;
2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE ACTION, WITH THE EXCEPTION OF THOSE INCURRED BY THE DEFENDANT .
