JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

15 February 2011

Case F-81/09

Luigi Marcuccio

v

European Commission

(Civil service — Officials — Invalidity allowance — Error in calculation — Payment of arrears — Default interest due — Rate applicable — Annual capitalisation — Material and non-material damage)

Application: brought under Articles 236 EC and 152 EA, in which Mr Marcuccio essentially seeks, first, annulment of the Commission’s decision rejecting in part his request for default interest on the invalidity allowance arrears paid to him by that institution, and, second, an order that the Commission pay him the difference between the amount of interest calculated according to the criteria which he considers should be applied and the amount of interest actually paid, plus late-payment interest.

Held: The action is dismissed. The Commission is ordered, in addition to bearing its own costs, to pay one quarter of the costs incurred by the applicant. The applicant is to bear three quarters of his own costs.

Summary

1. Officials — Decision adversely affecting an official — Obligation to state the reasons on which the decision is based — Scope — Inadequate statement of reasons — Rectification during the proceedings before the Court — Conditions

(Art. 253 EC; Staff Regulations, Art. 25, second para.)

2. Acts of the institutions — Regulations — Application by analogy — Conditions

3. Plea of illegality — Scope — Measures the illegality of which may be pleaded — Measure of a general nature on which the contested decision is based

(Art. 241 EC)

4. Procedure — Application initiating proceedings — Formal requirements

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the Civil Service Tribunal, Art. 34(1)(d) and (e))

1. The duty to state reasons imposed by the second paragraph of Article 25 of the Staff Regulations, which reiterates the general obligation laid down in Article 253 EC, is intended, on the one hand, to provide the person concerned with sufficient details to enable him to assess whether the measure adversely affecting him was well founded and whether it would be expedient to bring legal proceedings before the Civil Service Tribunal and, on the other hand, to enable the latter to review the legality of the measure. It follows that the obligation to state reasons thus laid down constitutes an essential principle of European Union law which may be derogated from only for compelling reasons.

It is possible, first, to compensate for an inadequate — but not a totally absent — statement of reasons even in the course of the proceedings where, before bringing his application, the person concerned already had information constituting the initial elements of a statement of reasons, and, second, to regard a decision as having an adequate statement of reasons if it occurred in a context known to the official concerned, enabling him to understand its scope.

(see paras 39, 40)

See:

15 September 2005, T-132/05 Casini v Commission, para. 30 and the case-law cited therein

2 March 2010, T-248/08 P Doktor v Council, para. 93, and the case-law cited therein

2. The scope of a regulation is normally defined by its own terms and it may not in principle be extended to situations other than those which it envisaged. It may be otherwise, however, in certain exceptional cases. Thus economic operators may be fully entitled to rely on the application by analogy of a regulation which does not normally apply to them, if they can show, first, that the legal rules which they come under are closely comparable to the rules whose application by analogy they seek, and, second, that the legal rules they come under contain an omission which is incompatible with a general principle of European Union law, and which may be corrected through the application by analogy of the regulation not normally applicable to them.

Consequently, the application of legislation by analogy is subject to two cumulative conditions being met: first, that the legal rules normally applicable must be closely comparable to the legislation whose application by analogy is envisaged, and, second, that there must be a loophole in those legal rules which is incompatible with a general principle of Union law and might be corrected by the legislation whose application by analogy is envisaged.

(see para. 55)

See:

20 February 1975, 64/74 Reich; 11 July 1978, 6/78 Union française de Céréales; 12 December 1985, 165/84 Krohn, paras 13 and 14

3. Article 241 EC expresses a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision under challenge, if that party was not entitled under Article 230 EC to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be annulled.

Article 241 EC thus aims to protect the individual against the application of an unlawful legislative act, on the basis that the effects of a judgment containing a declaration of inapplicability of such an act are limited to the parties to the dispute alone, and that that judgment does not affect the act itself which has become unchallengeable.

(see para. 60)

See:

6 March 1979, 92/78 Simmenthal v Commission, para. 39; 19 January 1984, 262/80 Andersen and Others v Parliament, para. 6

12 December 1996, T-177/94 and T-377/94 Altmann and Others v Commission, para. 119; 20 November 2007, T-308/04 Ianniello v Commission, para. 32 and the case-law cited therein

4. Under Article 35(1)(d) and (e) of the Rules of Procedure of the Civil Service Tribunal, the application referred to in Article 21 of the Statute of the Court of Justice must contain the subject-matter of the proceedings and the pleas in law and arguments of fact relied on.

Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Tribunal to give judgment in the action, if appropriate, without having to seek further information.

(see paras 61, 62)

See:

30 June 2006, F-87/05 Ott and Others v Commission, para. 38; 14 May 2008, F-95/06 Taruffi v Commission, paras 121 to 125; 30 November 2009, F-16/09 de Britto Patrício-Dias v Commission, para. 42