ORDER OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

28 September 2009

Case T-46/08 P

Luigi Marcuccio

v

Commission of the European Communities

(Appeal – Civil service – Officials – Request for information regarding personal effects dispatched from the place of employment to the place of residence – Appeal in part manifestly inadmissible and in part manifestly unfounded)

Appeal: against the order of the Civil Service Tribunal of the European Union (First Chamber) of 6 December 2007 in Case F-40/06 Marcuccio v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000 seeking to have that order set aside.

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

Summary

1. Appeal – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.)

2. Actions for annulment – Interest in bringing proceedings – Interest lost on account of event occurring after application was lodged – No need to adjudicate

3. Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Damage – Causal link

(Art. 288(2) EC)

4. Appeal – Pleas in law – Plea directed against the decision of the Civil Service Tribunal as to costs

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

1. The Civil Service Tribunal has exclusive jurisdiction, first to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. That appraisal of the facts does not therefore constitute, save where the clear sense of the evidence submitted to it has been distorted, a point of law which is subject, as such, to review by the Court of First Instance in an 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.

(see paras 44-45)

See: C‑8/95 P New Holland Ford v Commission [1998] ECR I‑3175, para. 72; C‑449/99 P EIB v Hautem [2001] ECR I‑6733, para. 44; C‑240/03 P Comunità montana della Valnerina v Commission [2006] ECR I‑731, para. 63; C‑551/03 P General Motors v Commission [2006] ECR I-3173, para. 54; C-167/04 P JCB Service v Commission [2006] ECR I‑8935, para. 108

2. In the interest of the proper administration of justice, the Civil Service Tribunal may find of its own motion that there is no longer any need to adjudicate on the action in the event that an applicant who initially had a legal interest in bringing proceedings has lost all personal interest in having the contested decision annulled on account of an event occurring after that application was lodged. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he must retain a personal interest in the annulment of the contested decision even after that action has been brought.

It follows from the finding that there is no need to adjudicate on an action brought before the Civil Service Tribunal that the Tribunal may not rule on the merits of the action in question.

(see paras 50-52)

See: C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, para. 39; T‑28/02 First Data and Others v Commission [2005] ECR II‑4119, paras 36 and 37; T-339/03 Clotuche v Commission [2007] ECR-SC I-A-2-0000 and II-A-2-0000, para. 39 and the case-law cited therein

3. The fact that a decision is unlawful, because it lacks a statement of reasons, for instance, is not sufficient to render the Community non‑contractually liable for unlawful acts of its bodies, since for that liability to be incurred a number of conditions must be satisfied as regards the unlawfulness of the conduct of which the defendant institution is accused, the actual harm suffered and the existence of a causal link between the act alleged and the damage alleged to have been suffered.

The non-material and allegedly ‘existential’ nature of damage allegedly suffered is not capable of shifting the burden of proof as to the existence and scale of the damage, which falls on the applicant. The Community does not incur liability unless the applicant can show that he actually suffered harm.

(see paras 66-67)

See: T‑116/03 Montalto v Council [2004] ECR-SC I‑A‑339 and II‑1541, para. 126 and the case-law cited therein; T‑156/03 Pérez-Díaz v Commission [2006] ECR-SC I‑A‑2‑135 and II‑A‑2‑649, para. 72 and the case-law cited therein

4. Under Article 11(2) of Annex I to the Statute of the Court of Justice 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 put forward against a decision of the Civil Service Tribunal have been rejected, any plea concerning the alleged unlawfulness of the Tribunal’s decision on who should pay the costs must consequently be rejected as manifestly inadmissible.

(see para. 84)

See: C‑301/02 P Tralli v ECB [2005] ECR I‑4071, para. 88 and the case-law cited therein