JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

19 January 2010

Case T-355/08 P

Chantal De Fays

v

European Commission

(Appeal — Cross-appeal — Civil service — Officials — Leave — Sick leave — Unauthorised absence established following a medical examination — Deduction from annual leave entitlement — Loss of the benefit of remuneration)

Appeal: against the judgment of the European Union Civil Service Tribunal (First Chamber) in Case F-97/07 De Fays v Commission [2008] ECR-SC I-A-1-191 and II-A-1-1011, seeking to have that judgment set aside. Cross-appeal brought by the European Commission also seeking to have that judgment set aside.

Held: The appeal and the cross-appeal are dismissed. Ms Chantal de Fays is ordered to pay the costs of the appeal. The European Commission is ordered to pay the costs of the cross-appeal.

Summary

1. Appeals — Pleas in law — Challenge to the assessments made for the first time by the Civil Service Tribunal

(Art. 225a EC; Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the General Court, Art. 139(2))

2. Appeals — Pleas in law — Plea submitted for the first time in the context of the appeal — Inadmissibility — Plea directed against the decision which is the subject of the contested judgment — Inadmissibility

(Rules of Procedure of the General Court, Arts 48(2) and 144)

3. Officials — Sick leave — Medical examination

(Staff Regulations, Art. 59(1))

4. Appeal — Pleas in law — Plea against a ground of the judgment not necessary to support the operative part — Ineffective plea in law

(Art. 225a EC; Statute of the Court of Justice, Annex I, Art. 9)

1. In an appeal the General Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the Civil Service Tribunal. The General Court therefore only has jurisdiction, in such proceedings, to consider whether the arguments set out in the appeal identify an error of law allegedly vitiating the contested judgment. In that respect, the fact that an appellant challenges assessments made for the first time by the Civil Service Tribunal in the judgment under appeal in response to pleas argued before it does not alter the subject-matter of the dispute.

(see paras 28, 30-31)

See: C-24/01 P and C-25/01 P Glencore and Compagnie Continentale v Commission [2002] ECR I-10119, para. 62 and the case-law cited therein; C-348/06 P Commission v Girardot [2008] ECR I-833, paras 49 and 50 and the case-law cited therein; T-390/07 P Speiser v Parliament [2008] ECR-SC I-B-1-63 and II-B-1-427, para. 35

2. Pleas in law not raised in the appeal, but formulated for the first time in a letter lodged with the Registry and argued by the appellant at the hearing must be rejected as inadmissible pursuant to Articles 48(2) and 144 of the Rules of Procedure of the General Court. A plea directed not against the contested judgment, but against the decision of the administration which was the subject of that judgment is also not capable of forming the basis of an appeal. Such pleas actually constitute new pleas.

(see paras 34, 40)

See: C-186/02 P and C-118/02 P Ramondín and Others v Commission [2004] ECR I-10653, para. 50

3. It follows from Article 59(1) of the Staff Regulations that the findings of an examining doctor may be challenged only by the contrary findings of an independent doctor called upon, at the request of the official concerned, submitted within two days, to give an opinion on the conclusions of the medical examination. That outcome is not altered by the fact that the note containing the opinion of the examining doctor includes an incorrect statement according to which, if the official concerned intended to contest that opinion for the same medical condition, he must submit a new medical certificate, whereas the official already knows of the existence of the medical arbitration procedure because he has already made use of it.

(see para. 43)

4. A plea raised in an appeal directed against grounds of a judgment of the Civil Service Tribunal which do not provide the necessary basis for the decision under appeal is ineffective and must be rejected.

(see para. 56)

See: C-399/02 P(R) Marcuccio v Commission [2003] ECR I-1417, para. 16 and the case-law cited therein