law://eu/cjeu/1973/c-15-73/hd_1_1_2@2026-11-14The Council makes the point, as regards Cases 15 to 27 and 33/73, that it follows from Article 87 of Regulation No 147/72 (OJ L 160/72) that the complaints lodged after 30 June 1972 are subject to the rules laid down by the new Articles 90 and 91 of the Staff Regulations. In fact the applicants in disregard of these provisions introduced their complaints too late. The decisions criticized were taken between August 1961 and April 1971; the complaints were only sent to the administration in October 1972. The period between the decisions of the authority and the complaints therefore amounted to well beyond the three months' period specifically laid down by Article 90 of the Staff Regulations. Besides, the applications are not admissible under Article 91 of the Regulations. In none of the cases was a complaint received by the authority within the periods laid down by Article 90.The Commission points out that as regards Cases 28 to 32, 52 and 53, 57 to 104, 116 and 117, 132 and 135 to 137/73, a simple examination of the dates when the allowance was stopped or refused and the date when the applications were lodged, shows that the applications are inadmissible because they are time-barred, having been made after the expiration of a period of three months from the act complained of, laid down by Article 91 of the Staff Regulations applicable at the time, as it stood prior to the alterations introduced by Regulation No 1473. This Regulation in no way grants the applicants relief against the bar to which they had previously become subject und which therefore had crystallized.The Parliament points out that it is legally unable to accede to the complaints on the part of the interested parties in Cases 33, 105 to 109 und 123/73. It has no authority to modify the past effects of administrative decisions not capable of being re-opened. The position of the applicants is governed by acts that occurred between June 1965 and September 1970. These had not been the subject matter of either an administrative complaint or of legal proceedings, and are no longer capable of being impugned. The complaints made by the applicants in September 1972 are not admissible since they were made outside the period laid down in Article 90 (2) of the Staff Regulations, as amended. It follows that pursuant to Article 91 (2) of the Regulations as amended, the appeals likewise are not admissible.The applicants in all the cases, except Case 137/73, reply that the appeals are in the first place actions for payment of arrears and that actions for payment of money due constitute an autonomous form of action that is not subject to the time limits of Article 91 of the Staff Regulations. As a subsidiary point, the applicants argue that, at any rate in the majority of cases, they were, able to ascertain that the expatriation allowance had been discontinued or had remained unpaid only by reading their salary statements, there not having been any express and written communication on this point, stating reasons. As regards the salary statements, these have no value except simply for information. That being the case, the decisions resulting in the discontinuance or refusal of the allowance were not properly notified to the applicants within the meaning of Article 25 of the Staff Regulations, and in the absence of a proper notification, the periods laid down in the former Article 91 of the Staff Regulations had not started to run.As a further subsidiary point, the applicants maintain that the time for the applications started running afresh by reason of new facts supervening. The first new fact was the judgments of the Court of 7 June 1972 previously mentioned. Without disregarding the Court's case law according to which a judgment constitutes a new fact only in relation to the persons directly affected by the annulled act, the applicants emphasize that the Court has applied this priciple when pronouncing judgments involving annulment by reason of either the disregard on the part of the administrative authority of a specific rule of law, or the wrong interpretation or application thereof. But the annulment effected by the judgments of 7 June 1972 was based upon the illegality found to exist in the rule of law applied to the parties involved — as is was to the applicants. Accordingly the declaration of annulment contained in the judgments of 7 June 1972 involves a judgment not only in the specific case but of general import, since it is concerned with the legality of a provision of general applicability which was applied equally and under the same conditions to the applicants in the present appeals.In the applicants' opinion it is permissible in these special circumstances to argue that the circle of persons directly concerned by the judgments extends to all those affected by the provision of the Regulations held to have been illegal.The second new fact cited by the applicants is the decision taken by the respondents henceforth, or again, to grant the applicants the expatriation allowance with effect from 1 July 1972. Whilst it had previously been held that the applicants, by reasen of their marriage, did not fulfil — or no longer fulfilled — the conditions for the grant of the expatration allowance, the new decision — the actual situation being unchanged and the provision in question not yet having been abolished — recognized that these conditions were satisfied. In the applicants' opinion these decisions taken together, might even be called a general change of course in administrative practice, thus constituting a new fact. As regards the judgment of 15 December 1966 given in Case 34/65 (Mosthaf v Commission, Rec. 1966, p. 745) where the Court held that where the authorities take action to give effect to judgments of the Court it is not so much the administrative act but rather the judgment itself that can be called the new fact, the applicants argue that in the present case the new decisions amount to a modification of the legal view of the administrative authority vis-à-vis the applicants themselves, whilst in the Case of Mosthaf v Commission it was a matter of modification of the legal view of the administration vis-à-vis officials other than the applicant, from which the latter claim to benefit.The applicant in Case 137/73 maintains that in the light of the general principles and of principles of internal law accepted in the Member States it is important to clarify the nature, the effect and the extent of the judgments of the Court of 7 June 1972, holding Article 4 (3) of Annex VII to the Staff Regulations to be illegal. She argues that an appeal to the Court aiming at the annulment of an illegal decision should be regarded as an appeal based on an ultra vires act, and that judgments given on such appeals have an effect not only vis-à-vis the applicants but erga omnes.The Court's judgments cover alk officials and consequently also the applicant. She maintains that the effects of the nullity of a legal act are reducible to the cardinal principle that, the void act being deemed never to have existed, its consequences are retrospectively nullified. It would be shocking to find that by the prior application of a legal provision that was in fact null and of no effect und the illegality of which extends erga omnes, one might be refused compensation on the ground that the period for appeal had expired.In the applicant's view the case law recognizes that a void act involving a degree of irregularity or illegality that is too striking or too unjust, must be regarded as non-existent. The concept of non-existence is used by the case law in order to correct certain rules of procedure that might seem too rigorous in particular circumstances. The applicant points out that the gravity of the illegality of Article 4 (3) of Annex VII to the Staff Regulations is all the more evident by reason of the fact that the Community institutions are obliged to abolish, in the field of remuneration in the internal law of Member States, all discrimination between the sexes.The applicant further cites the legal relationship between the Commission and its officials: the officials are involved in a legal situation over which they have no control but which they must, if necessary, endure, at the mercy of modifications or new decisions by the Commission. It follows from this situation that the Commission, which itself is the author of the provisions of the Staff Regulations, creates in the official a strong presumption that these are in accordance with that legality on which all its actions rest. Moreover, the applicant considers that it would be only equitable for all pecuniary consequences of a unilateral act declared void by reason of illegality to be wholly assumed by the party responsible for it. Finally, it is essential that an executive authority, having a rule-making power, should not with impunity be able to make provisions to its advantage, disregarding the legality to which it must conform.The applicant concludes that the legal provision under which the decision to ease payment of the expatriation allowance was taken ought to be considered as non-existent and that accordingly Articles 90 and 91 of the Staff Regulations must be applicable as from the Commission's decision of 1 September 1972, restoring the allowance as from 1 July 1972, without more extensive retrospective effect.
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