(5) and (6) · Richard Kuhner v European Commission (33/79, 75/79)

(5) and (6)With regard to the complaints which the applicant raises in his second application (Case 75/79) the defendant contends first that the period prescribed in the last paragraph of Article 90 (2) of the Staff Regulations to enable the appointing authority to reply to a complaint is not an essential procedural requirement non-compliance with which leads to the reply to the complaint being a nullity. If the appointing authority is allowed, by letting the prescribed period expire, to reply by implication to a complaint, it must a fortiori be able to reply expressly to a complaint even after the expiry of this period. Moreover this hypothesis has been specifically provided for in Article 91 (3) in fine. The defendant submits that in any case, even if the delay in replying to the complaint was of such a kind as to make it irregular, such irregularity cannot have any effect on the determination of the question whether the decisions adversely affecting the applicant, which are the actual subject-matter of the application, were properly taken.The Commission then considers the complaints that the grounds which allegedly serve as the basis of the contested decision were late, incorrect and inadequate and also the submission that there has been a misuse of powers. The grounds referred to have not been stated out of time as the analysis of the circumstances which led to the contested decisions contained in the defence (Case 33/79) indicates. On the other hand the fact that the reply to the complaint did not deal systematically with all the applicant's arguments — in so far as the rejection of the complaint must be regarded as an act adversely affecting the official which the defendant disputes — is not of such a kind as to invalidate that rejection. The statement of the grounds on which a decision adversely affecting an official is based is in fact adequate if those grounds are shown clearly and unambiguously (judgment of 2 July 1969 in Case 27/68, Reinaldas Renckens ν Commission of the European Communities [1969] ECR 255). Although the administration was not under a duty to obtain the views of the applicant the latter nevertheless on several occasions had the opportunity to submit his observations in connexion with the proposed reorganization.The defendant quotes the judgment of the Court of 29 September 1976 (Case 9/76 Carmelo Morello ν Commission of the European Communities [1976] ECR 1415), by virtue of which even if the grounds on which a decision was based were inadequate, the applicant can have no legitimate interest in the annulment of the decision when it could certainly be confirmed in substance in the absence of a mistake of law or of fact.With regard to the submission that there has been a misuse of powers the defendant maintains that no argument has been put forward in support of it and that it must consequently be rejected.

Richard Kuhner v European Commission (33/79, 75/79)

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