ORDER OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

28 September 2011





Case F-12/11





André Hecq

v

European Commission

(Civil service – Occupational disease – Invalidity procedure – Application to resume professional activity – Application for damages)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Hecq seeks, essentially, annulment of the Commission’s implied decision of 15 April 2010 rejecting his request of 15 December 2009 first, to resume his professional activities, second, for payment of a sum equal to the difference between the remuneration he would have been paid had he continued working after 1 August 2003 and the invalidity pension he had received since that date, plus default interest, and third, payment of EUR 50 000 in compensation.

Held: The action is dismissed as manifestly inadmissible. The applicant is ordered to pay the entirety of the costs.

Summary

1. Officials – Actions – Time-limits – Claim barred by lapse of time – Reopening – Condition – New and material fact

(Staff Regulations, Art. 90(1))

2. Officials – Social security – Insurance against the risk of accident and of occupational disease – Invalidity – Separate schemes

(Staff Regulations, Arts 73 and 78; Rules on insurance against the risk of accident and of occupational disease, Art. 25)

3. Officials – Actions – Actions for damages – Pleas in law – Illegality of a decision of the appointing authority not challenged in due time – Inadmissibility

(Staff Regulations, Arts 90 and 91)

1. An official cannot revive for himself a right of appeal against a decision which has become definitive upon the expiry of the time-limits for appeal by submitting a request to the appointing authority under Article 90(1) of the Staff Regulations.

The existence of a new and substantive fact may, admittedly, justify the submission of a request for the re-examination of a decision which has become definitive.

However, a decision of the appointing authority refusing to grant the person concerned an invalidity rate on the basis of Article 73 of the Staff Regulations, while undeniably constituting a new fact, cannot be regarded as a substantive fact in the context of the procedure conducted under Article 78 of the Staff Regulations.

(see paras 41-43)

See:

26 September 1985, 231/84 Valentini v Commission, para. 14

22 September 1994, T-495/93 Carrer and Others v Court of Justice, para. 20; 14 July 1998, T-42/97 Lebedef v Commission, para. 25

2. Article 25 of the Rules on the insurance of officials against the risk of accident and of occupational disease states that recognition of total or partial permanent invalidity pursuant to Article 73 of the Staff Regulations and the Rules on insurance must in no way prejudice application of Article 78 of the Staff Regulations and vice versa. Articles 73 and 78 of the Staff Regulations pursue different objectives and are based on separate concepts.

(see paras 44, 54)

See:

14 September 2011, F-12/09 A v Commission, paras 146 to 150, and the case-law cited therein

3. An official who has failed to contest an act adversely affecting him by bringing an action for annulment in due time cannot repair that omission and, in a sense, procure for himself a new period for lodging an appeal by bringing a claim for damages.

Similarly, an official who fails to contest in due time a decision of the appointing authority which adversely affects him may not rely on the alleged unlawfulness of that decision in an action for damages. An official wishing to bring an action for damages, in relation to both material damage and non-pecuniary damage, based on the alleged unlawfulness of an act adversely affecting him must begin the pre-litigation procedure provided for in the Staff Regulations within three months of being notified of that act.

(see paras 50, 51)

See:

7 October 1987, 401/85 Schina v Commission, para. 9

24 January 1991, T-27/90 Latham v Commission, para. 38; 27 June 1991, T-156/89 Valverde Mordt v Court of Justice, para. 144; 13 July 1993, T-20/92 Moat v Commission, para. 46; 28 June 2005, T-147/04 Ross v Commission, para. 48

21 February 2008, F-4/07 Skoulidi v Commission, para. 70