B —The oral hearings took place on 27 September and 15 November 1973.The applicants were all represented by Maître Grégoire, except the applicant in Case 137/73, who was represented by Maître Chomé and Maître Haas, of the Brussels Bar; the Council was represented by its Legal Adviser Mr Lesort, the Commission by its Legal Adviser Mr Griesmar, and the Parliament by its Secretary-Gieneral Mr Nord, assisted by Maître Bonn.At the hearing the three institutions persisted in their pleas for the appeals to be rejected for reasons of inadmissibility. They refer in particular to the judgment of 8 February 1973 in Case 56/72 (Goeth v Commission, [19731 E.C.R. 181) in which the Court confirmed its case law relating to the non-admissibility of appeals presented after the expiration of the timelimits.As regards the applicants' view that the applications constitute an autonomous form of action, the institutions reply that only Article 179 of the EEC Treaty can provide the legal basis for appeals. And according to this provision the limits and conditions determined by the Staff Regulations apply to all legal proceedings between the Community and its staff. Accordingly only Articles 90 and 91 of the Staff Regulations are applicable in this case.Besides, in the applications the payment demanded is in no way presented as a claim for compensation of damage suffered. From any point of view an application on the basis of Articles 178 and 215 of the EEC Treaty would constitute a misuse of procedure since it would aim at achieving by way of Article 178 a result which can only be attained by way of Articles 173 and 179.In the institutions' view it cannot seriously be argued that the formalities provided by Article 25 of the Staff Regulations are mandatory in cases of purely automatic and accountancy application of arithmetical details laid down by the Staff Regulations, that leave no margin for subjective evaluation.They moreover draw attention to the fact that Article 90 (2) of the Staff Regulations provides, on pain of non-admissibility of the subsequent appeal, that the complaint must be lodged within three months calculated from ‘the date of notification of the decision to the person concerned and in no case latter than the date on which the latter received such notification’.There is in fact no doubt that the applicants were aware of the withdrawal of their expatriation allowance more than three months before they lodged their administrative complaint. In this respect the institutions refer to the judgments of the Court of 8 May 1973 and of 30 May 1973 in Cases 33/72 and 36/72 (Gunnella v Commission and Meganck v Commission, [1973] E.C.R. 475 and 527).As regards the arguments based upon the occurrence of new facts capable of starting time running afresh, the institutions refer to the case law of the Court, in particular the judgment of 17 June 1965 in Case 43/64 (Müller v Council, Rec. 1965, p. 500) according to which a judgment constitutes a new fact only as far as the persons directly concerned by the act annulled are concerned. In line with this reasoning, the decision in the present appeals cannot be any different. Besides, this decision would be in conformity with principles recognized more or less absolutely in the law of the different Member States.The institutions moreover stress the fact that the judgments in the Sabbatini and Bauduin cases did not declare any annulment for reasons of illegality of the basic text, that is Article 4 (3) of Annex VII to the Staff Regulations. The annulment only covered the individual decisions to applying the same. It is a matter of principle that where an objection of illegality is allowed, the annulment of the consequential act never has the effect of annulling the original act. One cannot, from a declaration of non-applicability, deduce the absolute retrospective nullity of the provision of the Regulations involved and consider oneself entitled to attach to this nullity effects so contrary to all legal tradition, as to involve the annulment of individual decisions of application that were not appealed against within the time limits laid down. The formal annulment of Article 4 (3) of Annex VII was in fact the work of the legislator, who by Regulation No 558/73 of 26 February 1973 (OJ L 55, p. 1) cancelled this provision, but with a retrospective effect limited to 1 July 1972.As regards the administrative decisions granting the expatriation allowances anew as from 1 July 1972, these did no more than anticipate the advent of a new set of rules, and this was in fact brought into being by the aforementioned Regulation. Any other interpretation ought to be rejected.As regards the argument that Article 4 (3) ought to be considered as non-existent, the institutions argue against this that one can only use as a ground for non-existence the absence of an element essential to the very formation of the act, or such a defect that the act itself can be regarded as manifestly unsuited for use in applying a legislative or regulatory provision. Accordingly there cannot in the present case be any question of non-existence.The institutions point out that the concept of ‘head of household’, involved in the Sabbatini and Bauduin judgments, has in the course of years undergone an evolution in national laws and in legal and social thinking in general.The applicants maintain that they have shown the existence of an administrative breach of duty capable of forming the basis of a request for indemnification and they refer in this respect to the precedent of the judgment of 13 July 1972 in Case 79/71 (Heinemann v Commission), Rec. 1972, p. 579).They point out moreover that in the Sabbatini and Bauduin judgments the Court considered Article 4 (3) of Annex VII to be illegal in that it established an arbitrary difference of treatment between officials. Yet it is in application of this provision of the Regulations that, at the time, the expatriation allowance was withdrawn from the applicants. This withdrawal had therefore taken place by applying a provision declared to have been illegal and which because of this fact is deemed never to have existed and never to have been capable of having an effect in law. Besides, it is established that notwithstanding their marriage the applicants always fulfilled the legal conditions for obtaining the grant of this allowance. The applicants wonder whether this does not essentially constitute a new fact. In their view the declaration of illegality of a rule of law, even if it was in a dictum to a judgment — but a dictum indissolubly linked to the operative part declaring the annulment, for which it provides the necessary basis — has of necessity an effect erga omnes.The applicant in Case 137/73 points out that the system established by Articles 17, 174 and 184 of the EEC Treaty justifies, in certain extreme cases, recourse being had to the theory of non-existence. Since the conditions for an appeal for annulment by reason of illegality are very strict, it is indispensable, in cases where the illegality is of particular gravity, to be able to have recourse to automatic nullity as distinct from ordinary nullity, which is aimed at by Article 174 of the Treaty. The applicant considers that the act in question might be termed non-existent or automatically void. Article 119 of the Treaty constitutes an indirect way of prohibiting the creation of new discriminatory situations; the infringement of a precise provision in the EEC Treaty must be considered a completely unjustifiable act, all the effects of which ought to be cancelled.
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