ORDER OF THE GENERAL COURT (Appeal Chamber)

21 February 2013

Case T-85/11 P

Luigi Marcuccio

v

European Commission

(Appeal — Civil service — Officials — Social security — Serious illness — Reimbursement of medical expenses — Commission decision refusing to reimburse medical expenses incurred by the appellant at the rate of 100% — Obligation to state reasons — Article 72 of the Staff Regulations — Criteria adopted by the medical council — Opinion of the medical officer produced during the proceedings — Competence of the head of the settlements office — Appeal manifestly unfounded)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 23 November 2010 in Case F-65/09 Marcuccio v Commission [2010] ECR-SC, seeking to have that judgment set aside.

Held: The appeal is dismissed. Mr Luigi Marcuccio is to bear his own costs and to pay those incurred by the European Commission in the present proceedings.

Summary

1. Appeals — Grounds — Grounds which are clearly inadmissible or clearly unfounded — Dismissal at any time, by reasoned order, without an oral procedure

(Rules of Procedure of the General Court, Art. 145)

2. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Argument constituting an additional argument supplementing a plea put forward at first instance and not changing the subject-matter of the dispute — Admissibility

(Rules of Procedure of the General Court, Art. 139(2))

3. EU law — Principles — Rights of the defence — Audi alteram partem rule — Scope

4. Judicial proceedings — Measures of organisation of procedure — Request for production of documents — Admissibility of documents produced after the expiry of the period set by the Civil Service Tribunal

(Statute of the Court of Justice, Arts 24 and 25; Rules of Procedure of the Civil Service Tribunal, Arts 54(1), 55 and 57)

5. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the General Court of the 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. Appeals — Grounds — Mere repetition of the pleas in law and arguments submitted to the Civil Service Tribunal — Inadmissibility — Challenge to the interpretation or application of EU law by that Tribunal — Admissibility

(Art. 256(2) TFEU; Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the General Court, Art. 138(1))

7. Officials — Social security — Sickness insurance — Serious illness — Determination — Mental illness — General and imprecise concept — Assessment by the administration

(Staff Regulations, Art. 72(1))

8. Officials — Social security — Sickness insurance — Serious illness — Determination — Criteria — Obligation to examine the state of health of the person concerned

(Staff Regulations, Art. 72(1))

9. Officials — Social security — Sickness insurance — Serious illness — Refusal to recognise — Judicial review — Limit — Calling into question of medical assessments

(Staff Regulations, Art. 72(1))

10. Officials — Decision adversely affecting an official — Obligation to state reasons — Scope

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

11. Appeals — Grounds — Review by the General Court of the refusal of the Civil Service Tribunal to order measures of organisation of procedure or measures of inquiry — Scope

(Art. 256(2) TFEU; Statute of the Court of Justice, Annex I, Art. 11)

12. Actions brought by officials — Plea alleging lack of competence of the body which adopted the act adversely affecting an official — Ground involving a question of public policy

13. Officials — Social security — Sickness insurance — Settlements offices — Processing of claims for reimbursement — Procedures

(Staff Regulations, Art. 72; Rules on Sickness Insurance, Art. 20)

14. Officials — Appointing authority — Powers — Exercise — Distribution of powers — Exceptions — Sub-delegation — Lawfulness — Conditions

(Staff Regulations, Art. 2)

15. Appeal — Grounds — Plea directed against the Civil Service Tribunal’s decision as to costs — Inadmissibility in the event of the rejection of all the other grounds of appeal

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

1. Under Article 145 of the Rules of Procedure, where the appeal is clearly inadmissible or clearly unfounded, the General Court may at any time by reasoned order dismiss it without an oral procedure, even if one of the parties has requested that Court to hold a hearing.

(see para. 22)

See:

T-105/08 P Van Neyghem v Commission [2008] ECR-SC I-B-1-49 and II-B-1-355, para. 21; T-366/10 P Marcuccio v Commission [2011] ECR-SC, para. 14

2. In an appeal, the General Court’s jurisdiction is confined to an assessment of the findings of law with regard to the submissions discussed before the Civil Service Tribunal. The General Court therefore only has jurisdiction, in such proceedings, to consider whether the arguments set out in the appeal identify an error of law allegedly vitiating the contested judgment. The purpose of those principles is merely to ensure, in accordance with Article 139(2) of the Rules of Procedure, that the subject-matter of the proceedings before the Civil Service Tribunal is not changed in the appeal. However, arguments which may be regarded as merely amplifying a plea raised at first instance must be regarded as admissible since their effect is not to change the subject-matter of the proceedings.

(see para. 26)

See:

C-412/05 P Alcon v OHIM [2007] ECR I-3569, para. 40 and the case-law cited; C-583/08 P Gogos v Commission [2010] ECR I-4469, paras. 23 and 24 and the case-law cited

T-355/08 P De Fays v Commission [2010] ECR-SC, para. 28 and the case-law cited

3. See the text of the decision.

(see para. 34)

See:

C-197/09 RX-II Review M v EMEA [2009] ECR I-12033, paras 39 to 41 and the case-law cited

4. It is clear from the wording of Article 54(1) of the Rules of Procedure of the Civil Service Tribunal that the decision to put written questions to the parties is a matter which is entirely within the discretion of the Tribunal, which may, at any stage of the proceedings, prescribe any measure of organisation of procedure or any measure of inquiry referred to in Articles 55 and 57 of those rules, read in the light of Articles 24 and 25 of the Statute of the Court of Justice. The time-limits for production of a document, laid down by the Civil Service Tribunal in the context of a measure of organisation of procedure, cannot constitute limitation periods since, where the party concerned fails to comply, the Tribunal is entitled to order the production of the document requested. It follows that delay by a party in producing a document requested by the Judge-Rapporteur in his preparatory report for the hearing must not automatically entail the inadmissibility of that document.

(see para. 39)

See:

T-285/02 and T-395/02 Vega Rodríguez v Commission [2004] ECR-SC I-A-333 and II-1527, para. 24; T-40/07 P and T-62/07 P de Brito Sequeira Carvalho v Commission [2009] ECR-SC I-B-1-89 and II-B-1-551, para. 105

5. See the text of the decision.

(see para. 40)

See:

C-47/07 P Masdar (UK) v Commission [2008] ECR I-9761, para. 99 and the case-law cited

T-516/09 P Marcuccio v Commission, not published in the ECR, para. 90

6. See the text of the decision.

(see paras 53, 62)

See:

T-250/06 P Ott and Others v Commission, [2008] ECR-SC I-B-1-11 and II-B-1-109, para. 82 and the case-law cited; T-253/06 P Chassagne v Commission [2008] ECR-SC I-B-1-43 and II-B-1-295, para. 54; T-78/09 P Parliament v Collée [2010] ECR-SC, para. 22; T-239/09 P Marcuccio v Commission [2011] ECR-SC, para. 62

7. The concept of mental illness referred to in Article 72(1) of the Staff Regulations, which gives rise to reimbursement of medical expenses at the rate of 100%, covers only conditions which are, objectively, particularly serious and not every psychological or psychiatric disorder irrespective of its seriousness. It follows that the entitlement of the person concerned to reimbursement of his medical expenses at the rate of 100% requires the institution to examine whether the illness from which he is suffering constitutes a serious illness within the meaning of that provision, in the light of the criteria laid down by the Medical Council of the Joint Sickness Insurance Scheme.

(see para. 58)

8. In providing for reimbursement of the costs of screening for serious illnesses at 100%, Article 72(1) of the Staff Regulations seeks to ensure effective treatment at an early stage, thereby helping to prevent both the development of serious illnesses in the interests of the patient and higher treatment costs for the Joint Sickness Insurance Scheme.

In that regard, first, in order to establish a clear diagnosis of one of the illnesses listed in Article 72(1) of the Staff Regulations it is necessary to carry out special analyses or investigations and, secondly, such a diagnosis is necessary because of the aggressive therapeutic procedures prescribed to treat such conditions, and the possibility that such procedures may, inter alia, be accompanied by serious side-effects.

(see para. 67)

See:

T-191/01 Hecq v Commission [2004] ECR-SC I-A-147 and II-659, para. 54

9. It is not for a European Union Court to call into question the medical assessments providing the basis for the appointing authority’s refusal to recognise that a condition constitutes a serious illness within the meaning of Article 72(1) of the Staff Regulations. However, it is for that Court to examine whether, by adopting that refusal decision, that authority correctly assessed the facts and applied the relevant legal provisions.

(see para. 73)

See:

T-199/01 G v Commission [2002] ECR-SC I-A-217 and II-1085, para. 59; Hecq v Commission, para. 63

10. See the text of the decision.

(see paras 84-87)

See:

125/80 Arning v Commission [1981] ECR 2539, para. 13; 195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-56/93 Belgium v Commission [1996] ECR I-723, para. 86; C-278/95 P Siemens v Commission [1997] ECR I-2507, para. 17

T-123/95 B v Parliament [1997] ECR-SC I-A-245 and II-697, para. 51; T-102/08 P Sundholm v Commission [2009] ECR-SC I-B-1-109 and II-B-1-675, para. 40 and the case-law cited; T-377/08 P Commission v Birkhoff [2009] ECR-SC I-B-1-133 and II-B-1-807, para. 64; T-560/08 P Commission v Meierhofer [2010] ECR II-1739, para. 16; T-284/09 P Meister v OHIM [2010] ECR-SC, para. 21 and the case-law cited

11. See the text of the decision.

(see para. 93)

See:

T-37/10 P De Nicola v EIB [2012] ECR-SC, para. 99 and the case-law cited

12. See the text of the decision.

(see para. 99)

See:

T-165/04 Vounakis v Commission [2006] ECR-SC I-A-2-155 and II-A-2-735, para. 30 and the case-law cited

13. See the text of the decision.

(see para. 101)

See:

T-33/89 and T-74/89 Blackman v Parliament [1993] ECR-SC II-249, para. 55

14. See the text of the decision.

(see para. 103)

See:

46/72 De Greef v Commission [1973] ECR 543, paras 18 to 21

T-23/96 De Persio v Commission [1998] ECR-SC I-A-483 and II-1413, para. 111; Brito Sequeira Carvalho v Commission, para. 155

15. See the text of the decision.

(see para. 108)

See:

T-375/08 P Nijs v Court of Auditors [2009] ECR-SC I-B-1-65 and II-B-1-413, para. 71 and the case-law cited