CELEX: 62008TJ0012(01)
Appeal
Staff case
Temporary staff
Invalidity
Application for reconsideration of the decision rejecting a first request that the Invalidity Committee be convened
Action for annulment
Non-actionable measure
Confirmatory act
New and substantial facts
Admissibility
Non-contractual liability
Non-material harm

These proceedings follow the judgment of the Court of Justice of 17 December 2009 in Case C‑197/09 RX‑II
M
v
EMEA
[2009] ECR I-0000, by which that Court, having declared that the judgment of the General Court of 6 May 2009 in Case T‑12/08 P
M
v
EMEA
, not published in the ECR (‘the judgment under review’), on an appeal against the order of the European Union Civil Service
Tribunal (First Chamber) of 19 October 2007 in Case F‑23/07
M
v
EMEA
, not published in the ECR (‘the order under appeal’), affected the unity and consistency of Community law, set aside points
3 and 5 of the operative part of the judgment under review and referred the case back to the General Court.

Facts and procedure at first instance
It is apparent from the judgment under review, paragraph 1 above, that Mr M, a member of the temporary staff who took up employment
with the European Medicines Agency (EMA, known as EMEA until 8 December 2009) in October 1996, suffered an accident at work
in March 2005 after which he went on sick leave. Mr M’s contract with the EMA expired on 15 October 2006 since the EMA decided
not to renew it.
On 17 February 2006, Mr M requested that an Invalidity Committee be convened but the EMA refused that request by letter of
31 March 2006. On 3 July 2006, Mr M lodged a complaint against the refusal, which was rejected by decision of 25 October 2006.
In the intervening period, on 8 August 2006, Mr M had submitted another request that an Invalidity Committee be convened,
attaching a medical report by Dr W to the request.
By letter of 21 November 2006, Mr M asked the EMA to indicate whether the decision of 25 October 2006, confirming the decision
not to refer the case to the Invalidity Committee, constituted a rejection of the request of 8 August 2006.
By letter of 29 November 2006, the EMA informed Mr M that it had duly expressed the view, in its decision of 25 October 2006,
that the request of 8 August 2006 could not be regarded as a new request under Article 59(4) of the Staff Regulations of Officials
of the European Communities and it therefore had to be rejected on the grounds set out in that decision.
By letter of 25 January 2007, Mr M lodged a complaint seeking the withdrawal of the decision of 25 October 2006 in so far
as it rejected his request of 8 August 2006. The following day, he also sent a request to the EMA for compensation for the
material and non-material damage he claimed to have suffered.
By letter of 31 January 2007, the EMA rejected the complaint and the request.
On 7 February 2007, Mr M brought an action before the Civil Service Tribunal, registered as Case F-13/07, for annulment of
the decision of 31 March 2006 by which the EMA rejected his request for an Invalidity Committee to be convened, and, so far
as was necessary, the decision of 25 October 2006.
Subsequently, on 19 March 2007, Mr M brought another action before the Tribunal, registered as Case F-23/07, seeking, first,
annulment of the decision of 25 October 2006 and, second, an order that the EMA pay EUR 100 000 by way of damages for wrongful
acts in the performance of public duties.
The first action was dismissed by the Tribunal as manifestly inadmissible by the order of 20 April 2007 in Case F‑13/07
L
v
EMEA
, not published in the ECR, on the ground that the preliminary complaint had been submitted out of time.
In the context of the second action, the EMA, by separate document, raised a plea of inadmissibility under Article 114(1)
of the Rules of Procedure of the General Court, applicable mutatis mutandis to the Tribunal by virtue of Article 3(4) of Council
Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p.
7) until the entry into force of the Rules of Procedure of the Tribunal, which took place on 1 November 2007.
By the order under appeal, under Article 114 of the Rules of Procedure of the General Court, the Tribunal, without initiating
the oral procedure and without reserving a decision on the plea of inadmissibility for the final judgment, dismissed the action
as inadmissible.
The Tribunal held that the claim for annulment directed against the decision of 25 October 2006, in so far as the EMA had
rejected by that decision Mr M’s request of 8 August 2006, was inadmissible, on the ground that that decision had to be construed
as a decision which merely confirmed the decision in the EMA’s letter of 31 March 2006 and that the claim directed against
that decision had already been held to be inadmissible by the order in
L
v
EMEA
, paragraph 11 above.
The claim for compensation was also rejected as inadmissible in view, in particular, of the close link between that claim
and the claim for annulment considered previously.

The appeal before the General Court
By document lodged at the Registry of the General Court on 4 January 2008, Mr M brought an appeal, under Article 9 of Annex
I to the Statute of the Court of Justice, against the order under appeal.
On that occasion, Mr M requested the Court not only to set aside that order but also to rule on the substance of the case.
The EMA for its part contended that the appeal should be dismissed as manifestly unfounded and confined its submissions to
the inadmissibility of Mr M’s action.
After granting Mr M’s application to be heard at the oral stage of the proceedings, in the judgment under review, paragraph
1 above, the Court set aside the order under appeal, finding that it was vitiated by an error of law in so far as the Tribunal
had found Mr M’s claim for annulment and claim for compensation to be inadmissible.
Taking the view that the state of the proceedings so permitted, within the meaning of Article 13(1) of Annex I to the Statute
of the Court of Justice, the Court proceeded to give judgment in the matter. It held that the claim for annulment was admissible
and well founded, and annulled the decision of 25 October 2006. It also held that Mr M’s claim for compensation was admissible
and ordered the EMA to pay damages of EUR 3 000 to make good the non-material damage suffered by Mr M.
In that connection, the Court stated at paragraph 100 of the judgment under review, paragraph 1 above, that Mr M had submitted
in his application before the Tribunal that, by persisting in its refusal to invoke the invalidity procedure, the EMA had
induced in him a state of anxiety and uncertainty. At paragraph 104 of that judgment, the Court found that Mr M had suffered
non-material damage that could not be entirely remedied by the annulment of the decision of 25 October 2006.

Review by the Court of Justice
Following the proposal of the First Advocate General to review the judgment under review, paragraph 1 above, the special Chamber
provided for in Article 123b of the Rules of Procedure of the Court of Justice decided, by decision of 24 June 2009 in Case
C‑197/09 RX [2009] ECR-SC I-B-2-0000, that there should be a review of that judgment. As is apparent from point 2 of the operative
part of the Court’s decision of 24 June 2009, the purpose of that review was to establish whether the judgment under review,
paragraph 1 above, affected the unity or consistency of Community law in that the General Court, as the appeal court, had
interpreted the expression ‘where the state of the proceedings … permits’ in Article 61 of the Statute of the Court of Justice
and Article 13(1) of Annex I to the Statute as allowing it to dispose of a case and rule as to the substance, despite the
fact that the appeal before it concerned the examination of the treatment given at first instance to a plea of inadmissibility
and that, as regards the aspect of the case which was disposed of, there had been no exchange of arguments before it or before
the Tribunal as the court seised at first instance.
In Case C-197/09 RX-II
M
v
EMEA
, paragraph 1 above, the Court of Justice held first of all that it was apparent from its decision of 24 June 2009 that the
review had regard only to the order that the EMA pay damages of EUR 3 000 to Mr M to make good the non-material damage alleged,
whereas the annulment of the decision of 25 October 2006 and the dismissal of the action as to the remainder were not the
subject of the review proceedings (
M
v
EMEA
, paragraph 1 above, paragraph 26).
Next, with regard to the expression ‘where the state of the proceedings … permits’, the Court of Justice recalled that, as
a rule, the state of the proceedings does not permit final judgment to be given on the substance of an action brought before
the court of first instance where that court dismissed the action as inadmissible by upholding a plea of inadmissibility and
did not reserve a decision on that plea for the final judgment (
M
v
EMEA
, paragraph 1 above, paragraph 29). It stated that the position could be otherwise only in special circumstances, which did
not however exist in the present case (
M
v
EMEA
, paragraph 1 above, paragraphs 30 to 33).
The Court of Justice therefore found, in paragraphs 34 to 37 of
M
v
EMEA
, paragraph 1 above, that the General Court had misinterpreted the expression ‘where the state of the proceedings … permits’
in the first paragraph of Article 61 of the Statute of the Court of Justice and Article 13(1) of Annex I to the Statute and
had infringed the latter provision by holding that, in the present case, the state of the proceedings permitted final judgment
to be given in respect of the claim for compensation for the non-material damage alleged by Mr M.
The Court of Justice also found that by ruling on Mr M’s claim for compensation without giving the EMA the opportunity to
submit its observations on that claim the General Court had infringed the rule that the parties should be heard (
M
v
EMEA
, paragraph 1 above, paragraphs 38 to 59).
After holding that the errors identified in the judgment under review, paragraph 1 above, affected the unity and consistency
of Community law, the Court of Justice set aside that judgment in so far as, at points 3 and 5 of the operative part of the
judgment, the General Court had ordered the EMA to pay damages of EUR 3 000 to Mr M, and to pay the costs of the proceedings
before the Tribunal and of the proceedings before the General Court.
Given that the unity and consistency of Community law was affected, in this case, as a result of a misinterpretation of the
expression ‘where the state of the proceedings … permits’ and infringement of the rule that the parties should be heard, the
Court of Justice held that it could not itself give final judgment, in accordance with the last sentence of the first paragraph
of Article 62b of the Statute of the Court of Justice.
Therefore, although it ruled on the costs relating to the review proceedings, it referred the case back to the General Court
as regards the claim for compensation for the non-material damage allegedly suffered by Mr M, in accordance with Article 62b
of the Statute of the Court of Justice, so that the EMA would have the opportunity to present its arguments as to whether
that claim is well founded (
M
v
EMEA
, paragraph 1 above, paragraph 71).

The case referred back following review

Procedure
By letter of 22 December 2009, the Registry of the General Court, in accordance with Article 121c(1) of the Rules of Procedure,
invited the parties to lodge, within one month of the service of the judgment in Case C-197/09 RX-II
M
v
EMEA
, paragraph 1 above, their written observations on the conclusions to be drawn from that judgment for the outcome of the proceedings.
The EMA lodged its observations at the Court Registry on 21 January 2010.
By application lodged at the Court Registry on 8 January 2010, Mr M applied to the Court for legal aid, under Article 95 of
the Rules of Procedure, for the purposes of these proceedings.
By order of 11 March 2010, the General Court (Appeal Chamber) granted Mr M legal aid.
Mr M lodged his observations on the judgment in Case C-197/09 RX-II
M
v
EMEA
, paragraph 1 above, on 25 March 2010.

Law
As is apparent from point 2 of the operative part of Case C-197/09 RX-II
M
v
EMEA
, paragraph 1 above, and from paragraph 26 of that judgment, only points 3 and 5 of the operative part of the judgment under
review, paragraph 1 above, in which the Court ordered the EMA to pay Mr M damages of EUR 3 000 to make good the non-material
damage alleged and to pay the costs, respectively, were set aside, whilst the other points of the operative part of the judgment
under review, which set aside the order under appeal, annulled the EMA’s decision of 25 October 2006, in so far as it had
rejected Mr M’s request of 8 August 2006, and dismissed the action as to the remainder, have become res judicata.
In the observations of 21 January and 25 March 2010, submitted by the parties in the present proceedings under Article 121c(1)
of the Rules of Procedure, Mr M and the EMA stated their positions in particular on whether it was possible, in the circumstances
of the case, to regard the non-material damage claimed by Mr M as being separable from the unlawfulness which was the ground
for annulment of the decision of 25 October 2006, and whether it should therefore give rise to compensation.
The Court observes that, assuming that the lodging of observations by Mr M and the EMA after the review is sufficient to mitigate
infringement of the rule that the parties should be heard, established by the Court of Justice in
M
v
EMEA
, paragraph 1 above, the fact remains that in that judgment the Court of Justice also found that the judgment under review,
paragraph 1 above, was vitiated by the fact that the General Court had misinterpreted the expression ‘where the state of the
proceedings … permits’.
As regards the question whether the state of the present proceedings permits the Court to give final judgment, it is clear
from paragraph 30 of Case C‑197/09 RX‑II
M
v
EMEA
, paragraph 1 above, that the appeal court may, in certain circumstances, rule on the substance of an action, even though
the proceedings at first instance were confined to a plea of inadmissibility which that court upheld. That may be so where,
first, the setting aside of the judgment or order under appeal necessarily brings about a definitive resolution of the substance
of the action in question or, second, the examination of the substance of the application for annulment is based on arguments
exchanged by the parties in the appeal proceedings following reasoning adopted by the court at first instance.
However, as is clear from paragraphs 32 to 34, 36 and 37 of Case C‑197/09 RX‑II
M
v
EMEA
, paragraph 1 above, in the present case no such special circumstances exist, so the state of the proceedings does not permit
the Court to give final judgment in the matter for the purposes of Article 61 of the Statute of the Court of Justice and Article
13(1) of Annex I to the Statute. The Court can therefore only refer the case back to the Civil Service Tribunal for it to
rule on the claim for compensation for the non-material damage allegedly suffered by Mr M, after the EMA has presented its
arguments as to whether that claim is well founded.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
1.
Refers the case back to the European Union Civil Service Tribunal for it to rule on the claim for compensation for the non-material
damage allegedly suffered by Mr M;
2.
Reserves the costs.
Jaeger
Azizi        Forwood
Czúcz

Pelikánová
Delivered in open court in Luxembourg on 8 July 2010.
[Signatures]
*
Language of the case: French.