In Case T-47/92,
Manfred Lenz, an official of the Commission of the European Communities, residing at Kraainem (Belgium); Erika Lenz, formerly an official of the Commission of European Communities and the wife of the first-named applicant, residing at Kraainem; Volker Lenz, the son of the aforementioned applicants, residing at Osnabrueck (Germany), represented by Juergen Schacht, Rechtsanwalt, Hamburg, with an address for service in Luxembourg at the office of J.P. Meyer, 14 Rue Prince Jean, Ettelbrueck,
applicants,
v
Commission of the European Communities, represented by Henri Étienne, Principal Legal Adviser, acting as Agent, assisted by Barbara Rapp-Jung, Rechtsanwalt, Frankfurt, with an address for service in Luxembourg at the office of Roberto Hayder, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for the annulment of the decisions of the Commission rejecting a request for assistance and compensation and the complaint objecting to the rejection, and also for the Commission to be ordered to make good the material and non-material damage allegedly suffered by the applicants,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of: D.P.M. Barrington, President, K. Lenaerts and A. Kalogeropoulos, Judges,
Registrar: H. Jung,
makes the following
Order
The facts
1 By application lodged at the Registry of the Court of Justice on 17 June 1992, the applicants brought an action, first, for the annulment of the Commission' s decisions, one of which rejected their request for assistance and compensation and the other of which dismissed their complaint objecting to the rejection and, secondly, for an order that the Commission should make good the material and non-material damage which they consider they suffered as a result of the medical treatment received by two of them.
2 By letter of the same day, the Court Registry informed the applicants that it had forwarded the application to the Registry of the Court of First Instance, which received it that same day.
3 By letter of 18 June received on 24 June 1992 by the Commission, the application was served on the Commission by the Registry of the Court of First Instance.
4 By letter registered at the Registry of the Court of First Instance on 2 July 1992, the applicants informed the Court of First Instance that for the purposes of the proceedings their address for service was at the office of J.P. Meyer in Ettelbrueck.
5 On 27 July 1992, the Commission' s defence was registered at the Registry of the Court of First Instance, together with its annexes, namely two letters in French sent by the Commission' s Legal Service to the first applicant on 29 April and 27 May 1991. Those letters were not accompanied by a translation into German, the language of the case. The document containing the authority granted to the Commission' s representatives was however enclosed with the defence.
6 On the same day, the Commission' s defence was served on the applicants, together with notice of the date by which the reply had to be lodged, which was set at 3 September 1992.
7 By decision of 18 August 1992, the President of the Court of First Instance assigned the case to the Fifth Chamber and designated the Judge-Rapporteur.
8 On 1 September 1992, the reply was registered at the Registry of the Court of First Instance.
9 On 2 September 1992, the Registry of the Court of First Instance registered the translations into the language of the case of the two letters annexed to the Commission' s defence and served the translations on the applicants.
10 On the same day, the Registry of the Court of First Instance notified the parties of the latest date for lodging the rejoinder, which was set at 5 October 1992.
11 On 3 September 1992, the applicants received a fax copy of the translation of the two letters annexed to the Commission' s defence.
12 On 2 October 1992, the rejoinder was registered at the Registry of the Court of First Instance.
13 On 5 October 1992, the Registry of the Court of First Instance received the present application made by the applicants under Article 114 of the Rules of Procedure.
Subject-matter of the application
14 The applicants claim that the Court of First Instance should:
° refer the case to the competent Chamber, in accordance with Article 14 of the Rules of Procedure;
° designate an Advocate General, pursuant to Articles 17 and 18 of the Rules of Procedure;
° for the purposes of treating all the pleadings equally, order service by post against a receipt at the address, 56 Honnekinberg, B-1950 Kraainem, of the applicants Manfred and Erika Lenz, who agree to accept service of all documents on behalf of the applicant Volker Lenz;
° order full access to the preliminary inquiry file at the Public Prosecutor' s Office in Brussels in the cases of Dr Coulie, Dr Boon and others, including the doctors' original documents and those of the Clinique St-Luc, which have been seized.
15 The Commission contends that the Court of first Instance should:
° dismiss the application.
16 On 6 October 1992, the Registry registered the certificate stating that the lawyer assisting the Commission' s Agent was entitled to practise before the courts in Frankfurt.
Arguments of the parties
17 The applicants claim first of all that, having regard to the importance of the case and to the status of two of the three applicants, who are not officials, the case ought to have been assigned to a Chamber of five Judges and an Advocate General ought to have been designated.
18 Secondly, they state that the designation of the "Belgian Judge" as Judge-Rapporteur in this case is "problematic", "if his legal background is taken into account", in so far as this case concerns Belgian doctors and cases pending before the Belgian courts.
19 Thirdly, the applicants claim that the written procedure has been vitiated by various defects. In the first place, the defence was lodged more than one month after the application was registered at the Registry of the Court of First Instance. Next, they assert that there was an infringement of the rules relating to languages because the documents annexed to the defence, written in French, were lodged without translations, which did not reach the applicants until 3 September 1992, that is to say after the reply was lodged. Lastly, the Commission did not produce to the Court evidence that the lawyer assisting its representative was entitled to practise before a court.
20 Furthermore, the applicants believe that "examination of the documents in the case shows that the principle of equality of treatment of the two parties regarding procedure has not been complied with". In support of that claim, they state that "the person authorized to accept service of all documents on behalf of the defendant was designated before the other party had chosen a like person in this case" and that "several times pleadings were served on the defendant by courrier, while the applicants have to be content with registered letters with acknowledgement of receipt and therefore have to put up with unilateral shortenings of time-limits".
21 The applicants claim that "both the assignment of the case to the Fifth Chamber and the decision to assign made by the President of the Chamber ... are improper".
22 The applicants further request the Court of First Instance to refer to inquiry reports made by the Public Prosecutor' s Office and to medical documents.
23 In reply, the Commission states in the first place that on 17 June 1992 the Court of Justice, with the applicants' consent, referred the case to the Court of First Instance which has jurisdiction inter alia in disputes between the Communities and their servants. It was therefore the Court of Justice that decided that this was a staff case. The Commission adds that it is for the Court of First Instance to decide, in the exercise of its discretion, whether the case is to be assigned to another Chamber and whether, specifically, it should be assigned to the Second Chamber.
24 The Commission further points out that neither Article 51 nor Article 18 of the Rules of Procedure provides any possibility for the parties to request the designation of an Advocate General. According to the Commission, it follows from Article 18 of the Rules of Procedure that the decision to designate an Advocate General is a matter for the Court of First Instance alone.
25 Secondly, the Commission states that it follows from the provisions of Articles 16 and 44 of the Protocol on the Statute of the Court of Justice of the EEC, read together, that a party may not apply for a change in the composition of a Chamber of the Court of First Instance on the ground of the nationality of a Judge.
26 Thirdly, it contends that it is apparent from an examination of the documents in the case, first of all, that the period allowed for lodging the defence began to run as from 24 June 1992, the date on which the application was served on the Commission, and it expired therefore on 27 July 1992, that is to say, one month later plus two days' extension on account of distance.
27 The Commission then states that, as the written procedure has been closed, any criticism relating to compliance with the language rules may be expressed only during the oral procedure. Moreover, reading the annexes in question ° two short letters ° should not have presented any great difficulty for the first applicant, since he has always defined his active and passive knowledge of French as "very good", as is shown in his staff reports for the years 1989/1991 and 1985/1987. The Commission considered that the information about his knowledge of French given in an official document by the first applicant reflected the true situation.
28 Lastly, the Commission notes that the applicants repeat an offer of evidence which was first made by them in the reply, that is to say out of time, and which was therefore already inadmissible under Article 48(1) of the Rules of Procedure.
Findings of the Court of First Instance
29 The Court of First Instance finds, that for the purposes of Article 12(1) of the Rules of Procedure, this action concerns a dispute between the Community and one of its servants. The first applicant is in fact an official of the Commission and the second and third applicants are members of his family, with respect to whom the Commission has no obligations, other than indirectly through the first applicant' s status as an official. If this action did not ° as is wrongly claimed by the applicants ° concern a dispute between the Community and one of its servants, it would have to be declared inadmissible on the ground that the Court of First Instance had no jurisdiction.
30 It follows that the President of the Court of First Instance was correct in assigning this case, on the basis of Article 12(1) of the Rules of Procedure, to a Chamber composed of three Judges.
31 The Court of First Instance next points out that Articles 14, 18 and 51 of the said Rules give the Chamber hearing a case the right to request the Court of First Instance sitting in plenary session to refer the case either to the Court of First Instance sitting in plenary session or to a Chamber composed of a different number of Judges and to designate an Advocate General. That is a right and not an obligation, and its exercise is subject to the criteria specified in the Rules of Procedure; these are, for a referral to a Chamber composed of a different number of Judges, the legal difficulty or the importance of the case or special circumstances and, for the designation of an Advocate General, the legal difficulty or factual complexity of the case.
32 In the present case, it must be observed that none of the matters put forward by applicants justifies either a referral to a Chamber composed of a different number of Judges or the designation of an Advocate General.
33 The Court of First Instance considers furthermore that the applicants' reference to the "Belgian Judge' s legal background" must be understood as a reference to his nationality. It must therefore be rejected on the basis of the last paragraph of Article 16 of the Protocol on the Statute of the Court of Justice of the EEC, according to which a party may not apply for a change in the composition of the Court or of one of its Chambers on the ground of the nationality of a Judge. Moreover, it is not true that, as the applicants claim, in this case the Judge-Rapporteur, acting in his capacity as President of a Chamber replacing the President of the Court of First Instance pursuant to Article 9 of the Rules of Procedure, designated himself. He was in fact designated by the President of the Court of First Instance himself pursuant to Article 13(2) of the Rules of Procedure.
34 As far as the various procedural defects alleged by the applicants are concerned, the Court of First Instance points out, first, that although the defence was lodged more than one month after the application was registered, that was due solely to the length of time which elapsed between the application' s being sent to the defendant and its receipt. The period of one month for lodging the defence does not begin to run against the defendant until the date of receipt of the application, which in this case was 24 June 1992. Since the defence was received by the Registry of the Court of First Instance on 27 July 1992, it was lodged within the period prescribed, taking into consideration the extension of time on account of distance (two days) and the fact that, pursuant to Article 101(2) of the Rules of Procedure, if the period would otherwise end on a Sunday (in this case, Sunday 26 July), it is to be extended until the end of the first following working day (in this case, 27 July).
35 Secondly, as regards proof of Ms Rapp-Jung' s entitlement to practise before a court of a Member State, which, it must be added, was produced when the Commission lodged a certificate on 6 October 1992, it is sufficient to point out that the Commission' s pleadings are signed by Mr Étienne as Agent duly appointed by the Commission for this case and that the absence of a certificate for the lawyer instructed to assist him cannot therefore constitute an irregularity for the purposes of Article 46(1) or 44(3) of the Rules of Procedure.
36 Thirdly, the Court of First Instance notes that, as stated by the applicants, the two documents annexed to the defence lodged by the Commission are written in French and were not accompanied by translations into the language of the case. Those translations did not reach the applicants until after they had lodged their reply. While it is true that the applicants did not, as they could have done, seek an extension of the time-limit for lodging their reply to enable them to study the translation of those documents into the language of the case, the Court of First Instance considers that they should be allowed a period of one month in which to lodge their observations on the said documents and that the Commission should subsequently be allowed to submit its own observations on theirs.
37 The Court of First Instance considers that the applicants' assertion to the effect that the Commission received more favourable treatment than they did in the course of these proceedings is wholly unfounded, especially as far as "unilateral shortenings of time-limits" are concerned.
38 Finally, the Court of First Instance considers that the offers of evidence set out in this application are out of time, since the applicants have put forward no circumstance that might have prevented them from including those offers of evidence in their application. The evidence offered by them must therefore be rejected in accordance with Article 48(1) of the Rules of Procedure.
39 It follows from the foregoing considerations that the applicants must be allowed a period of one month in which to submit their observations exclusively on the two letters annexed to the defence and that their other claims must be dismissed.
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
hereby orders:
1. The applicants shall be allowed a period of one month in which to submit their observations on the letters of 29 April and 27 May 1991 annexed to the Commission' s defence;
2. For the rest, the application is dismissed;
3. Costs are reserved.
Luxembourg, 14 December 1992.
