C-38/84

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 31 January 1985 ( *1 ) Mr President, Members of the Court, 1.  J. K., an official of Dutch nationality serving the European Parliament, cohabits with a male friend whom he declares to be a dependant. On that ground he applied for the household allowance provided for by Article 1 (2) (c) of Annex VII to the Staff Regulations. His request was refused and on 13 February 1984 he brought this action against the European Parliament for a declaration that the decision refusing him the household allowance is unlawful. The defendant institution has raised objections of inadmissibility against the complaint and the appeal lodged by the applicant on the grounds that they are both out of time. At this stage the Court must confirm its decision to the question of the admissibility of the appeal. 2.  In such cases, the date and nature of the documents exchanged by the parties are decisive. The sequence of events, in chronological order, was as follows: (1) November 1982: J. K., in a letter addressed to the European Parliament, applied for the household allowance; (2) February 1983: the Parliament informed him that it could not grant his request; (3) February 1983: pursuant to Article 90 (1) of the Staff Regulations J. K. asked the Parliament for a special reasoned decision to be notified to him no later than 22 March 1983; he stated that if he had received no reply by that date he would be ‘Obliged to take further steps on the basis of the provisions of Article 90’; (4) April 1983: in reply to his letter of 25 February 1983, the Parliament informed J. K. that, if he contested the decision taken in his regard, he was ‘entitled to commence the procedure laid down in Article 90 of the Staff Regulations’; (5) July 1983: J. K.'s lawyer sent the Parliament a copy of the appeal which he had lodged with the Court of Justice on the same day against the ‘decision’ of 21 April 1983; in the accompanying letter he stated that: — According to Netherlands law relating to the civil service, ‘confirmation of the previous decision may still be regarded as the first definitive decision against which reasoned objections may be raised’; — If the Parliament wished to interpret its decision of 21 April 1983, the arguments set out in the appeal lodged on 11 July 1983 should be taken into consideration; — The application would be withdrawn if a favourable decision were taken; (6) August 1983: The Parliament replied to J. K.'s lawyer, informing him that it adhered to its decision of 21 April 1983 to reject the request for payment of the household allowance and that, in the absence of a prior complaint, within the meaning of Article 91 (2) of the Staff Regulations, it was unable, at that stage of the procedure, to reply to the arguments set out in the appeal lodged on 11 July 1983; (7) August 1983: J. K.'s lawyer sent a further letter to the Parliament in which : — He asked whether the Parliament's letter dated 21 April 1983 was to be considered a definitive decision on a request or a decision on a complaint; — He inferred from the letter of 2 August 1983 that the said letter constituted a decision on a request; — He stated that, once that interpretation was confirmed, he would withdraw the appeal lodged on 11 July and change the appeal into a complaint so that the letter of 11 July would refer directly, and not indirectly, to the arguments set out therein; and — He informed the Parliament that he would await its decision on his client's complaint, since an appeal could still be lodged against it if it was unfavourable; (8) August 1983: The Parliament replied to J. K.'s lawyer that it had no objection to considering the letter of 11 July 1983 a complaint and that it took note of the withdrawal of the appeal lodged at the Court of Justice on 11 July 1983. 3.  In support of its objection, the European Parliament submits the following arguments: The request of 22 November 1982 was rejected on 21 February 1983. The letter of 21 April 1983 merely confirms the decision of 21 February rejecting the request. The complaint against that decision ought to have been lodged within a period of three months expiring on 22 May 1983. The complaint of 11 July 1983 was therefore lodged out of time. In any event, the complaint was expressly rejected by the letter of 2 August 1983. On a proper application of Article 91 (3) of the Staff Regulations, J. K. ought to have appealed against the express decision of 2 August 1983 and not against the implied decision rejecting his request to which he refers in his application. The appeal lodged on 13 February 1984 is inadmissible because it is out of time. 4.  In reply, J. K. states that, in view of the difficulty that there was in classifying both his letter of 25 February 1983 (complaint against a decision rejecting a request or reiteration of his previous request of 22 November 1982) and the Parliament's reply dated 21 April 1983 (first definitive decision rejecting a request or confirmation of the previous decision rejecting the request), on 11 July 1983 he lodged an appeal and a complaint concurrently in order to safeguard his rights. He further submits that the employer is acting in bad faith in raising an objection of inadmissibility after the exchange of the letters mentioned above and in relying on the vagueness which arose from the failure to classify its own decisions, which could have been avoided if the possibility of lodging a complaint or an appeal had been expressly mentioned. 5.  One might be tempted to uphold the objection of inadmissibility raised by the European Parliament in so far as it is based on the late submission of the complaint lodged on 11 July 1983. Indeed, it might be considered that the request of 22 November 1982 was rejected on 21 February 1983 and that the complaint against that decision ought to have been lodged by 22 May 1983. However, J. K. did in fact write to the European Parliament before that date. His letter of 25 February 1983, in which he asked for a special reasoned decision by 22 March 1983, the date on which the fourmonth period for an implied rejection expired, suggests that he considered that a final decision had not yet been taken about his case. He possibly thought that the definitive decision had not been taken until 21 April 1983. It is certainly possible to argue that he was mistaken but, if he was, he was implicitly misled by the Parliament itself, which, in its letter of 21 April, failed to point out to him that, in view of the express decision taken on 21 February 1983 rejecting his request, the date of 22 March indicated by J. K. was irrelevant and that he had to lodge a complaint before 23 May 1983. There is every reason to believe that the reason why the Parliament did not make those points to J. K. at that time was that, like J. K., it thought that the date of 21 February 1983 was not to be taken as the date on which time began to run for lodging a complaint. The subsequent correspondence bears out that view. When it mentions, in its letter of 2 August 1983, the decision by which it rejected J. K.'s request, the Parliament does not cite the date of 21 February but that of 21 April 1983. Furthermore, in taking note, in its letter of 12 August 1983, of the withdrawal of the appeal lodged by J. K. on 11 July 1983, when such withdrawal depended on the decision of 21 April 1983 being considered a decision on a request and not on a complaint, the Parliament implicitly adopts those classifications. J. K. was therefore right to consider that the decision rejecting his request of 22 November 1982 was taken on 21 April 1983. Consequently, he had three months in which to lodge a complaint against that decision. That period expired on 21 July 1983. His complaint was lodged on 11 July 1983 and cannot therefore be held to be out of time. 6.  In support of its submission that the appeal must be held to be out of time, the Parliament contends that the complaint of 11 July 1983 was expressly rejected by its letter of 2 August 1983. That argument is not convincing. Although in its letter of 2 August 1983 the Parliament states that it adheres to its decision of 21 April 1983, it expressly refuses, on the ground that ‘no complaint has previously been submitted’, to consider the arguments advanced by the applicant on 11 July. Consequently, the letter of 2 August cannot be construed as an express decision rejecting a complaint. It must therefore be concluded that the complaint of 11 July 1983 was rejected only by implication and that the objection raised in this case must be dismissed. 7.  I therefore propose that the Court should: (1) Dismiss the objection of inadmissibility raised by the European Parliament and therefore examine the substance of the case; (2) Reserve the costs. ( *1 ) Translated from die French.