JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

9 June 2010

Case F-56/09

Luigi Marcuccio

v

European Commission

(Civil service — Officials — Action for damages — Access of the administration to an official’s lodgings — Respect for the home and private life)

Application: brought under Articles 236 EC and 152 EA, in which Mr Marcuccio essentially seeks, in particular, first, a declaration that there is no legal basis for or the annulment of the Commission’s decision rejecting his request for compensation for the harm allegedly suffered because agents of the Commission unlawfully entered his lodgings in Luanda (Angola) on 8 April 2002 and, on that occasion, unlawfully took photographs and made records of his personal effects, and, second, compensation for that harm.

Held: The Commission is ordered to pay the applicant the sum of EUR 5 000. The Commission’s decision of 11 September 2008 is annulled in so far as it rejected the applicant’s application of 24 April 2008 that he be sent photographs, that photographs be destroyed and that he be provided with information relating to the destruction of the photographs. The rest of the claims in the application are dismissed. The Commission is ordered, in addition to bearing its own costs, to pay one quarter of the applicant’s costs. The applicant is to pay three quarters of his own costs.

Summary

1. Officials — Actions — Actions for damages — Application for annulment of the pre-litigation decision rejecting a claim for damages — Application not independent of the claim for damages

(Staff Regulations, Arts 90 and 91)

2. Officials — Actions — Act adversely affecting an official — Definition — Measure of internal organisation of departments — Not included — Action seeking compensation for the harmful consequences of those measures — Admissibility

(Staff Regulations, Arts 90(2) and 91(1))

3. Officials — Principles — Fundamental rights — Right of natural persons to the inviolability of their home — Protection against arbitrary or disproportionate intervention by the public authorities — Entry by the administration into an official’s lodgings without complying with the procedural formalities — Infringement – Maladministration

(Art. 6(2) TEU)

4. Officials — Decisions involving financial obligations — Methods of enforcement — Use of compensation — Condition

(Art. 256 EC; Staff Regulations, Annex VIII, Art. 46)

5. Officials — Actions — Subject-matter

(Art. 266 TFEU; Staff Regulations, Art. 91)

6. Procedure — Costs — Order for the successful party to bear some of its own costs

(Rules of Procedure of the Civil Service Tribunal, Art. 89(2))

1. An institution’s decision rejecting a claim for damages forms an integral part of the prior administrative procedure which precedes an action to establish liability before the Civil Service Tribunal and only has the effect of enabling the official concerned to bring a claim for damages before the Tribunal. Consequently, claims seeking a declaration that there is no legal basis for or, in the alternative, the annulment of that rejection decision cannot be assessed in isolation from the claim for damages.

(see para. 30)

See:

T-90/95 Gill v Commission [1997] ECR-SC I-A-471 and II-1231, para. 45; T-77/99 Ojha v Commission [2001] ECR-SC I-A-61 and II-293, para. 68; T-209/99 Hoyer v Commission [2002] ECR-SC I-A-243 and II-1211, para. 32

judgment of 25 March 2010 in F-102/08 Marcuccio v Commission, para. 23

2. In an action for damages, an official is perfectly entitled to rely, in support of his damages claims, on the unlawful nature of practical measures not constituting acts adversely affecting him, since what he seeks is not to have those measures set aside, but compensation for their harmful consequences.

(see para. 41)

3. The fundamental right of natural persons to the inviolability of their home, which is a general principle common to the laws of the Member States and affirmed by Article 8 of the European Convention on Human Rights, to which Article 6(2) TEU refers, guarantees protection against arbitrary or disproportionate intervention by the public authorities in the sphere of private activities of any person, such intervention being required to have a legal basis and to be warranted by reasons laid down by law in all the Member States.

Lodgings provided for an official, solely for accommodation purposes, by the administration at the place where he carries out his professional activities must be regarded as ‘home’. The fact that the official in question is on sick leave and is staying temporarily in another State is irrelevant, since such an absence does not entail a shift in the official’s centre of interests.

Consequently, if the administration enters the official’s lodgings without his being informed or, a fortiori, without the administration having enquired whether he objected, it infringes the official’s right to respect for his property, his home and his private life and commits maladministration capable of rendering it liable. That finding is not called into question by the fact that a decision had been taken to reassign the official, or by grounds alleging the interests of the service, such as the need to make sure that the lodgings are undamaged after bad weather. Such circumstances are not capable of exempting the administration of all procedural requirements, or at the very least of the need to inform the official in advance that it is urgently necessary to ascertain the condition of the lodgings.

(see paras 51-55, 57, 61-66)

See:

46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paras 17 and 19

4. It follows from Article 256 EC that the coercive enforcement of decisions of the Commission is governed by the rules of civil procedure in force in the State in whose territory it occurs and that the national courts have jurisdiction to review the lawfulness of the enforcement measures. That does not preclude an institution from being able to resort to processes such as compensation, provided that they can rely on an express legal basis, such as Article 46 of Annex VIII to the Staff Regulations, under which any sums due from an official to the Communities may be deducted from his retirement pension or invalidity allowance.

(see para. 59)

See:

T-214/00 X v Commission [2001] ECR-SC I-A-143 and II-663, paras 21 to 23

5. In the absence of a legal basis giving the Civil Service Tribunal jurisdiction to impose a daily penalty payment on an institution until it carries out the measures it is required to take to comply with a judgment of the Tribunal, heads of claim seeking the imposition of such a penalty must be dismissed as inadmissible.

In any event, in the absence of any evidence suggesting that the institution will not discharge its obligations towards the person concerned in accordance with Article 266 TFEU, there is no cause to impose a periodic penalty designed to pressurise the institution.

(see paras 80-82)

See:

T-84/91 Meskens v Parliament [1992] ECR II-2335, para. 31; T-203/95 R Connolly v Commission [1995] ECR II-2919, para. 45

6. Where each party succeeds on some and fails on other heads, the Civil Service Tribunal may, under Article 89(2) of its Rules of Procedure, order that the costs should be shared or that the parties are to bear their own costs.

In that respect, where the successful party has submitted a fairly large number of claims that have been dismissed by the Tribunal, and has submitted compensation claims to the Tribunal that are manifestly excessive, it is appropriate to order the other party to pay, in addition to its own costs, only some of the successful party’s costs.

(see paras 86-88)