ORDER OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

31 March 2011

Case F-10/10

André Hecq

v

European Commission

(Civil service — Officials — Social security — Meeting of 100% of medical costs — Implied rejection decision — No decision recognising the occupational origin of the illness — Limited power of the administration — Decision to reject the complaint — Decision not purely confirmatory — No complaint — Inadmissibility)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Hecq seeks, first, annulment of the Commission’s implied decision of 7 April 2009 rejecting his claim of 7 December 2008 for 100% reimbursement of various medical costs, and, second, ‘so far as necessary’, annulment of the decision of 20 October 2009 rejecting his complaint.

Held: The action is dismissed as in part clearly unfounded and in part clearly inadmissible. The applicant is ordered to pay the whole of the costs.

Summary

1. Officials — Actions — Act adversely affecting an official — Implied rejection of a claim — Admissibility — Administration’s subsequent holding reply informing the applicant of a delay in processing his claim — No effect on status as an act adversely affecting him

(Staff Regulations Art. 90(1))

2. Officials — Social security — Insurance against the risk of accident and of occupational disease — Benefits — 100% reimbursement — Condition

(Staff Regulations Art. 73(3))

3. Officials — Actions — Act adversely affecting an official — Decision to reject a complaint — Straightforward rejection — Confirmatory measure — Inadmissibility — Exception

(Staff Regulations, Arts 90 and 91)

4. Officials — Actions — Prior administrative complaint — Withdrawal of contested decision and adoption of a fresh decision

(Staff Regulations, Arts 90 and 91)

1. Article 90(1) of the Staff Regulations is mandatory and cannot be left to the parties’ discretion. By preventing an official from being left without any act adversely affecting him whose legality he might challenge, that provision is designed to protect the official concerned against any failure to act on the part of the administration.

Consequently, the fact that the administration informs an official, after the implied decision rejecting his claim, that there is a delay in processing that claim, is not such as to call into question the existence of that decision. It follows that the forms of order sought against the implied rejection decision are admissible.

(see paras 50-52)

2. The adoption of a decision to reimburse expenses at 100% on the basis of Article 73(3) of the Staff Regulations necessarily presupposes the existence of a decision recognising the occupational origin of the illness for the treatment of which the expenses in question were incurred, and that latter decision may be adopted only as the culmination of the procedure provided for in the Common Rules on the insurance of officials of the European Union against the risk of accident and of occupational disease. In other words, in the absence of a decision recognising the occupational origin of an illness, adopted in accordance with the procedure laid down in the Common Rules, the authority responsible for the application of Article 73(3) of the Staff Regulations must reject a claim for 100% reimbursement of expenses incurred for the treatment of that illness.

(see para. 53)

3. Claims for annulment formally directed against the rejection of a complaint do not, in principle, have any autonomous content and have the effect of bringing before the Civil Service Tribunal the act adversely affecting the official against which the complaint was lodged. The decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged.

A purely confirmatory measure, such as an act which contains no new factors as compared with a previous measure adversely affecting the applicant and which has not therefore replaced it, cannot be described as an act adversely affecting the applicant.

However, an express decision rejecting a complaint may, in the light of its content, not be purely confirmatory of the measure contested in the complaint. That applies where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such cases, the rejection of the complaint constitutes a measure subject to review by the court, which will take it into consideration when assessing the lawfulness of the contested measure, and may even regard it as an act adversely affecting the complainant and replacing the contested measure. In such circumstances, the complainant does not need to lodge a fresh complaint against the amended decision contained in the decision rejecting the complaint.

(see paras 60-63)

See:

28 May 1980, 33/79 and 75/79 Kuhner v Commission, para. 9; 10 December 1980, 23/80 Grasselli v Commission, para. 18; 16 June 1988, 371/87 Progoulis v Commission, para. 17; 17 January 1989, 293/87 Vainker v Parliament, para. 8

27 June 2000, T-608/97 Plug v Commission, para. 23; 12 December 2002, T-338/00 and T-376/00 Morello v Commission, paras 34 and 35; 2 March 2004, T-14/03 Di Marzio v Commission, para. 54; 10 June 2004, T-258/01 Eveillard v Commission, paras 30 to 32; 14 October 2004, T-389/02 Sandini v Court of Justice, para. 49; 7 June 2005, T-375/02 Cavallaro v Commission, paras 63 to 66

9 September 2008, F-18/08 Ritto v Commission, para. 17; 10 November 2009, F-93/08 N v Parliament, para. 41

4. The purpose of the pre-litigation procedure would be undermined if the Civil Service Tribunal ruled admissible heads of claim submitted directly against the administration’s initial statement of position, without the prior lodging of a complaint. Proceedings conducted in that manner do not allow the administration to re-examine its decision on the official’s claim and, where appropriate, to change that decision, as the purpose of the pre-litigation procedure requires.

Where, as a result of a complaint lodged under Article 90(2) of the Staff Regulations, the administration withdraws the contested decision and replaces it with a fresh decision, the decision initially challenged disappears retroactively from the legal order, and the complainant, should he consider that the new decision is not entirely satisfactory, must lodge a fresh complaint against that decision before challenging it before the Civil Service Tribunal.

(see paras 73, 76)

See:

1 July 2010, F-45/07 Mandt v Parliament, para. 111 and the case-law cited therein; 7 July 2010, F-116/07, F-13/08 and F-31/08 Tomas v Parliament, paras 63 to 66