ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

25 February 2014

Case F‑118/11

Luigi Marcuccio

v

European Commission

(Civil service — Officials — Decision by the appointing authority to retire an official and to grant an invalidity allowance — Decision not addressing the occupational origin of the disease which justified retirement — Obligation on the appointing authority to recognise the occupational origin of the disease — Article 78, fifth paragraph, of the Staff Regulations — Need to convene a new Invalidity Committee — Relevance of an earlier decision adopted under Article 73 of the Staff Regulations — Article 76 of the Rules of Procedure — Action in part manifestly inadmissible and in part manifestly unfounded)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Marcuccio seeks, in particular, annulment of the implied decision by which the European Commission rejected his request that it adopt a decision recognising or concerning recognition of the occupational origin of the disease which led the institution to retire him on grounds of invalidity, as well as the award of a number of payments in compensation for the harm he claims to have suffered and to continue to suffer as a result of the Commission’s unlawful failure, since 30 May 2005, to adopt a decision recognising the occupational origin of that disease.

Held: The action is dismissed as being in part manifestly inadmissible and in part manifestly unfounded. Each party is to bear its own costs.

Summary

1. Judicial proceedings — Lodging of defence — Time-limit — Resumption of suspended proceedings — Point from which time starts to run

(Rules of Procedure of the Civil Service Tribunal, Arts 39(1) and (3), 100(3) and 116; Staff Regulations, Arts 91(4) and 90(2))

2. Actions brought by officials — Action concerning the administration’s failure to adopt a decision — Pleas in law seeking annulment of the refusal and finding of a failure to act — One and the same method of recourse

(Arts 263, fourth para., and 265, third para., TFEU; Staff Regulations, Art. 90(1) and (2))

3. Officials — Pensions — Invalidity pension — Establishing whether a disease results from an official’s occupation — Competence of the Invalidity Committee

(Staff Regulations, Arts 11, 73 and 78; Annex VIII, Art 13)

4. Officials — Decision adversely affecting an official — Obligation to state reasons — Scope — Inadequate statement of reasons — Rectification during the proceedings before the Tribunal — Conditions

(Art. 296, second para., TFEU; Staff Regulations, Art. 25)

5. Officials — Pensions — Invalidity pension — Establishing whether a disease results from an official’s occupation — Procedure initiated after action has been brought — Consequences

(Staff Regulations, Arts 73 and 78)

1. In a case which has been suspended pursuant to Article 91(4) of the Staff Regulations, an implied decision rejecting a complaint signifies the end of the suspension of the proceedings, and the defendant then has, pursuant to Article 39(1) and Article 100(3) of the Rules of Procedure of the Civil Service Tribunal, a period of two months from the end of the suspension, plus a single period of ten days, in which to lodge a defence. Since those time-limits are mandatory and, consequently, not at the discretion of either the parties or the Civil Service Tribunal, the resumption of the proceedings in such circumstances, and the calculation of the period in question, do not depend on information which must be formally provided by the Tribunal.

Consequently, a letter from the defendant which is to be regarded as its defence and is lodged within the prescribed period, and which requests the Civil Service Tribunal to rule that there is no need to adjudicate, leads to the rejection of the applicant’s application for judgment by default pursuant to Article 116 of the Rules of Procedure.

(see paras 35-38)

See:

14 November 2006, F‑4/06 Villa and Others v Parliament, paras 24 and 26 and the case-law cited therein; 23 April 2008, F‑103/05 Pickering v Commission, paras 49 and 51; 7 July 2011, F‑21/11 Pirri v Commission, para. 14

2. Claims for annulment in connection with Article 90(1) of the Staff Regulations and Article 90(2) of the Staff Regulations respectively may be broadly associable, in proceedings concerning the legality of acts of the European Union, with an action on the basis of Article 263, fourth paragraph, TFEU for annulment of a measure refusing to adopt a decision and an action on the basis of Article 265, third paragraph, TFEU seeking a finding that an institution unlawfully failed to adopt such a decision, two provisions which constitute one and the same method of recourse.

(see para. 52)

See:

18 November 1970, 15/70 Chevalley v Commission, para. 6

3. In the procedure for retiring an official on grounds of invalidity, the appointing authority may not adopt a decision recognising the occupational origin of a disease which justifies retirement on grounds of invalidity without having available to it, to that end, the opinion of the Invalidity Committee constituted for that purpose and in the constitution of which the official must assist both by appointing one of the doctors sitting on that committee and in supplying all the information liable to be of use to the committee for providing the medical appraisals forming an integral part of its proceedings.

The onus is also on the official to claim the benefits of Article 78, fifth paragraph, of the Staff Regulations, and where such an application for recognition of the occupational origin of the invalidity is submitted, it is, as a general rule, for the institution concerned to initiate the procedure for recognition of the occupational origin. However, the institution may not dispense with a further consultation of the Invalidity Committee and immediately recognise, without following any procedural requirements, the occupational origin of the disease relied on.

Moreover, in view of the fact that the procedures under Articles 73 and 78 may legitimately lead to differing medical results in the light of the same factual situation, and in particular as regards the question of the occupational origin of the disease affecting the same official, the appointing authority is not entitled either to rely on findings recognising an occupational disease under Article 73 of the Staff Regulations in order immediately to accede to an application for recognition, pursuant to Article 78, fifth paragraph, of the Staff Regulations, that the disease justifying the retirement of the official concerned on grounds of invalidity is also occupational in origin.

Finally, it is not for the European Union judicature to assume the role of the institution concerned or of the Invalidity Committee in order to ascertain for itself, in the absence of any procedure initiated for recognition of the occupational origin, whether the disease justifying the retirement decision is occupational in origin.

(see paras 58-63, 66, 68)

See:

12 January 1983, 257/81 K v Council, paras 11, 12, 14, 15 and 20

27 February 1992 T‑165/89 Plug v Commission, para. 67; 14 May 1998, T‑165/95 Lucaccioni v Commission, para. 149; 1 July 2008, T‑262/06 P Commission v D., para. 70

22 May 2007, F‑97/06 López Teruel v OHIM, paras 48 and 68; 1 February 2008, F‑77/07 Labate v Commission, para. 12; 30 June 2011, F‑14/10 Marcuccio v Commission, para. 60; 6 November 2012, F‑41/06 RENV Marcuccio v Commission, paras 98 and 99

4. The extent of the duty to state grounds must, in each case, be determined on the basis of the specific circumstances. The reasons given for a decision are sufficient if it was adopted in circumstances known to the official concerned which enable him to understand the scope of the measure concerning him.

Where the statement of reasons is inadequate, grounds produced in the course of the proceedings may, in exceptional cases, render irrelevant a plea relying on infringement of the obligation to state reasons.

In such a situation, the administration may provide, in the course of the proceedings, sufficient additional reasons for its implied refusal decision, particularly where that decision must be regarded as a rejection decision ‘as things stand’, in other words at that point in the procedure for recognition of the occupational origin of the applicant’s disease under Article 78 of the Staff Regulations, and, as such, not in any way prejudicing the decision to be taken at the end of that procedure.

(see paras 71-73, 78)

See:

26 November 1981, 195/80 Michel v Parliament, para. 22; 27 March 1985, 12/84 Kypreos v Council, para. 8; 8 March 1988, 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission, para. 52; 28 February 2008, C‑17/07 P Neirinck v Commission, paras 50 and 51

20 March 1991, T‑1/90 Pérez-Mínguez Casariego v Commission, para. 73; 6 July 1995, T‑36/93 Ojha v Commission, para. 60; 12 December 2002, T‑135/00 Morello v Commission, para. 28; 1 April 2004, T‑198/02 N v Commission, para. 70; 6 July 2004, T‑281/01 Huygens v Commission, para. 105; 15 September 2005, T‑132/03 Casini v Commission, para. 36

31 March 2011, F‑10/10 Hecq v Commission, para. 68

5. A complaint alleging failure to initiate the procedure for recognition of the occupational origin of the applicant’s disease has no factual basis where the appointing authority has, after the official concerned brought his action, acceded to his request.

In those circumstances, it will be, first, for the appointing authority, before reaching its decision, to refer the matter once again to the Invalidity Committee, which will have to ascertain whether the applicant’s pathological condition has a sufficiently direct relationship with a specific and normal risk inherent in the duties which he performed, and, second, for the applicant, in his interest in having his administrative situation clarified, to lend his full assistance to the convening of an Invalidity Committee and to the successful progress of its proceedings.

(see paras 81, 82)

See:

12 July 1988, 377/87 Parliament v Council, para. 10