ORDER OF THE GENERAL COURT (Appeal Chamber)

13 December 2011

Case T‑311/09 P

Luigi Marcuccio

v

European Commission

(Appeal – Civil service – Officials – Social security – Reimbursement of medical expenses – Decision of the Commission refusing 100% reimbursement of certain medical expenses incurred by the appellant – Distortion – Duty to state reasons – Investigation – Act adversely affecting the appellant – Authority of res judicata – Lis pendens – Confirmatory act)

Appeal: against the order of the Civil Service Tribunal of the European Union (First Chamber) delivered in Case F‑73/08 Marcuccio v Commission [2009] ECR FP‑I‑A‑1‑145 and FP‑II‑A‑1‑819, seeking the annulment of that order.

Held: The appeal is dismissed. Mr Luigi Marcuccio is to bear his own costs and pay those incurred by the European Commission in the present proceedings.

Summary

1. Procedure – Statement of reasons for judgments – Scope

(Statute of the Court of Justice, Art. 36 and Annex I, Art. 7(1))

2. Officials – Decision adversely affecting an official – Obligation to state the reasons on which the decision is based – Scope

(Staff Regulations, Arts 25, second para., and 90(2))

3. Appeal – Pleas in law – Inadequate statement of reasons

(Staff Regulations, Art. 25, second para.)

4. Officials – Actions – Act adversely affecting an official – Definition – Confirmatory measure – Not included

(Art. 233 EC; Art. 266 TFEU; Staff Regulations, Arts 90 and 91)

1. While the obligation of the European Union judicature to give reasons for its decisions does not go so far as to require it to respond in detail to every argument advanced by the parties, particularly where the arguments were not sufficiently clear and precise and were not based on detailed evidence, it does, at the very least, require it to examine all the infringements of law alleged before it.

(see para. 34)

See: T‑498/07 P Krcova v Court of Justice [2009] ECR I‑B‑1‑35 and II‑B‑1‑197, paras 34 and 35 and the case-law cited therein

2. The obligation to state reasons, which results for the administration from the combined provisions of Articles 25, second paragraph, and 90(2) of the Staff Regulations, is intended, on the one hand, to provide the person concerned with sufficient information to determine whether the rejection of his request was well founded and whether it is appropriate to bring proceedings before the Union judicature, and on the other, to enable the latter to carry out its review.

It follows that the reasons for a decision must, as a rule, be notified to the person concerned at the same time as the decision adversely affecting him, and that an irregularity resulting from the absence of a statement of reasons for that decision may not be rectified once proceedings directed against that irregularity have been brought before the courts. Furthermore, the reasons for a decision rejecting a complaint are deemed to be identical to those for the decision against which the complaint was made. That principle also applies to decisions taken in connection with the rules on sickness insurance for officials of the European Union, which introduced a common sickness insurance scheme for the Union’s institutions, Article 35 of which refers to the pre-litigation procedure laid down by Article 90(2) of the Staff Regulations.

(see paras 42, 43)

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; judgment of 28 February 2008 in C‑17/07 P Neirinck v Commission, not published in the ECR, para. 50; T‑93/03 Konidaris v Commission [2007] ECR‑SC I‑A‑2‑149 and II‑A‑2‑1045, paras 49 and 52 and the case-law cited therein; T‑377/08 P Commission v Birkhoff [2009] ECR‑SC I‑B‑1‑133 and II‑B‑1‑807, para. 55

3. The extent of the obligation to state reasons is a question of law reviewable by the General Court on appeal. A review of the legality of a decision carried out in that context by the General Court must necessarily take into consideration the facts on which the Civil Service Tribunal based itself in reaching its conclusion as to the adequacy or inadequacy of the statement of reasons.

(see para. 51)

See: Commission v Birkhoff, para. 55

4. The existence of an act adversely affecting the official concerned within the meaning of Articles 90(2) and 91(1) of the Staff Regulations is a condition for the admissibility of any action brought by officials against the institution by which they are employed.

Only measures which come from the competent authority and include a definitive position adopted by the administration which produces binding legal effects capable of directly and immediately affecting the applicant’s interests by bringing about a distinct change in his legal position constitute such acts.

The classification of a contested act as not adversely affecting the appellant, within the meaning of Articles 90 and 91 of the Staff Regulations, on the basis of an assessment that that act has not had the effect of changing the appellant’s legal position as previously fixed by another act of the administration, which constituted the act that adversely affected him, cannot be affected by the fact that the act adversely affecting the appellant was annulled after the adoption of the contested act. In such a case, the contested act must be regarded as merely the consequence of the act adversely affecting the appellant. It follows that as long as the act adversely affecting the appellant is not annulled, it is presumed to be lawful and the contested act may be retained, whereas once the act adversely affecting the appellant is annulled, the retention or withdrawal of the contested act will depend on the measures which the institution or institutions from which the act adversely affecting the appellant came are required to take to comply with the judgment annulling that act, in accordance with their obligation under Article 233 EC (now Article 266 TFEU).

(see paras 73, 74, 92)

See: 60/81 IBM v Commission [1981] ECR 2639, para. 9; T‑46/90 Devillez and Others v Parliament [1993] ECR II‑699, paras 13 and 14; T‑20/92 Moat v Commission [1993] ECR II‑799, para. 39; T‑196/95 H v Commission [1997] ECR‑SC I‑A‑133 and II‑403, para. 44; T‑480/93 and T‑483/93 Antillean Rice Mills and Others v Commission [1995] ECR II‑2305, para. 60 and the case-law cited therein; T‑481/93 and T‑484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II‑2941, para. 47; T‑66/96 and T‑221/97 Mellett v Court of Justice [1998] ECR‑SC I‑A‑449 and II‑1305, para. 83; T‑324/02 McAuley v Council [2003] ECR‑SC I‑A‑337 and II‑1657, para. 28