JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

24 November 2010

Case T-9/09 P

Luigi Marcuccio

v

European Commission

(Appeal — Civil service — Officials — Dismissal of the action at first instance as manifestly inadmissible — Request for the return of personal property — Notification of the decision rejecting the complaint in a language other than that of the complainant — Action out of time — No response to a head of claim submitted at first instance)

Appeal: against the order of the Civil Service Tribunal of the European Union (First Chamber) of 4 November 2008 in Case F-133/06 Marcuccio v Commission [2008] ECR-SC I-A-1-343 and II-A-1-1883 seeking the annulment of that order.

Held: The order of the Civil Service Tribunal of the European Union (First Chamber) of 4 November 2008 in Case F-133/06 Marcuccio v Commission [2008] ECR-SC I-A-1-343 and II-A-1-1883 is annulled in so far as it did not rule on the application for a declaration that the decision contested at first instance did not exist. The remainder of the appeal is dismissed. The action is dismissed inasmuch as it sought a declaration that the contested decision did not exist. Mr Luigi Marcuccio is ordered to bear his own costs and to pay those incurred by the European Commission in the present case. The costs of the proceedings at first instance which culminated in the above order in Marcuccio v Commission are to be borne in accordance with point 2 of the operative part of that order.

Summary

1. Procedure — Statement of reasons on which judgments are based — Scope — Obligation to adjudicate on each breach of law invoked

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

2. Acts of the institutions — Presumption of validity — Non-existent act — Concept

(Art. 288 TFEU)

3. Officials — Actions — Action for damages — Origin — Employment relationship — Legal basis

(Art. 270 TFEU; Staff Regulations, Arts 90 and 91)

4. Acts of the institutions — Statement of reasons — Obligation — Scope

(Rules of Procedure of the Civil Service Tribunal, Art. 76)

5. Appeals — Pleas in law — Review by the General Court of the Civil Service Tribunal’s assessment of the evidence — Possible only where the clear sense of the evidence has been distorted

(Statute of the Court of Justice, Annex I, Art. 11)

6. Procedure — Period allowed for commencing proceedings

(Rules of Procedure of the Civil Service Tribunal, Arts 39(1) and 100(1) and (3))

7. Appeals — Pleas in law — Plea directed against the Civil Service Tribunal’s decision on costs — Inadmissible where all other pleas are rejected

(Statute of the Court of Justice, Annex I, Art. 11(2))

1. Although the obligation for the Civil Service Tribunal to state the reasons on which its decisions are based does not mean that it must reply in detail to every argument advanced by a party, particularly where those arguments are not sufficiently clear and precise and are not based on detailed evidence, it does, at the very least, require it to consider all the breaches of law invoked before it.

(see para. 30)

See: T-50/08 P Michail v Commission [2009] ECR-SC I-B-1-127 and II-B-1-775, para. 42 and the case-law cited therein

2. Acts of the Union institutions are in principle presumed to be lawful and accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn. However, by way of exception to that principle, acts tainted by an irregularity of such obvious gravity that it cannot be tolerated by the Union’s legal system must be deemed not to have produced any legal effects. The gravity of the consequences attaching to a finding that a measure of a Union institution is non-existent means that, for reasons of legal certainty, such a finding may be reserved for quite extreme situations.

The breach of his right of property invoked by an official, having been required to leave the accommodation provided by his employer, against an implied decision by the Commission refusing to return his property to his home following the removal of his personal effects may not, in any event, be regarded as such an extreme situation where, first, the Commission has never denied that the official was the sole owner of the property removed, and, second, the fact that the official has not yet received them is due, at the very least in part, to a lack of cooperation on his own part. Furthermore, the removal carried out by the Commission must be regarded as a practical measure by which it sought to overcome, by its own efforts, the problems the official encountered in fulfilling his obligation to leave the accommodation provided by his employer.

(see paras 37, 40)

See: T-241/03 Marcuccio v Commission [2006] ECR-SC I-A-2-111 and II-A-2-517, para. 39; T-40/07 P and T-62/07 P de Brito Sequeira Carvalho v Commission and Commission v de Brito Sequeira Carvalho [2009] ECR-SC I-B-1-89 and II-B-1-551, paras 150-152 and the case-law cited therein

3. An action between an official and the institution to which he belongs or belonged seeking compensation for damage comes under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, and, particularly as regards its admissibility, falls outside the scope of Articles 268 TFEU and 340 TFEU.

(see para. 45)

See: T-187/01 Mellone v Commission [2002] ECR-SC I-A-81 and II-389, para. 74 and the case-law cited therein; T-279/03 Galileo International Technology and Others v Commission [2006] ECR II-1291

4. The question of compliance with the obligation to provide a statement of reasons, laid down in Article 76 of the Rules of Procedure of the Civil Service Tribunal in respect of an order dismissing an action as manifestly inadmissible, must be distinguished from the question of the validity of the statement of reasons, which concerns the substantive legality of the order.

The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. The fact that the court of first instance reached a different conclusion on the substance from that of the applicant does not, in itself, vitiate the contested order by a failure to state the grounds on which it is based.

(see paras 52-53)

See: C-17/99 France v Commission [2001] ECR I-2481, para. 35; C-310/99 Italy v Commission [2002] ECR I-2289, para. 48; C-413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I-4951, para. 181 and the case-law cited therein; C-583/08 P Gogos v Commission [2010] ECR I-4469, para. 35 and the case-law cited therein

5. The assessment by the court of first instance of the evidential value of a document may not, as a general rule, be subject to review on appeal by the General Court. It is for the Civil Service Tribunal alone to assess the value which should be attached to the evidence produced to it. Save where the evidence adduced before the Civil Service Tribunal has been distorted, that appraisal therefore does not constitute a point of law which is subject to appeal.

Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. The jurisdiction of the General Court to review the findings of fact by the Civil Service Tribunal therefore extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, the distortion of the evidence, the legal characterisation of that evidence and the question whether the rules relating to the burden of proof and the taking of evidence have been observed.

(see paras 57-59)

See: C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729, para. 39 and the case-law cited therein; T-107/07 P Rossi Ferreras v Commission [2008] ECR-SC I-B-1-5 and II-B-1-31, para. 30; T-284/07 P OHIM v López Teruel [2008] ECR-SC I-B-1-69 and II-B-1-447, para. 47; T-404/06 P ETF v Landgren [2009] ECR II-2841, para. 198 and the case-law cited therein

6. Where the Registrar of the Civil Service Tribunal serves notice of proceedings on the defendant by registered post, the date of service which sets the time-limits running is the date on which the defendant acknowledges receipt of the registered letter addressed to him.

(see paras 74-75)

See: order of 23 March 2010 in T-16/09 P Marcuccio v Commission, para. 64 and the case-law cited therein

7. It is apparent from Article 11(2) of Annex I to the Statute of the Court of Justice that no appeal may lie regarding only the amount of the costs or the party ordered to pay them. It follows that, where all the other pleas in law in an appeal against a decision of the Civil Service Tribunal have been rejected, claims concerning the alleged irregularity of the Tribunal’s decision as to who should pay the costs must be dismissed as inadmissible.

(see para. 82)

See: C-485/08 P Gualtieri v Commission [2010] ECR I-3009, para. 111 and the case-law cited therein; T-46/08 P Marcuccio v Commission [2009] ECR-SC I-B-1-77 and II-B-1-479, para. 84