ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

29 September 2009

Case F-64/09

Kay Labate

v

Commission of the European Communities

(Civil service – Officials – Social security – Insurance against the risk of accident and occupational disease – Occupational disease – Action for failure to act – Lack of jurisdiction of the Tribunal – Referral to the Court of First Instance)

Application: brought under Article 232 EC, in which Ms Labate asks the Tribunal, inter alia, to find that the Commission unlawfully failed to act within the meaning of Article 232 EC; to order the Commission to take the measures necessary to comply with the order of the Civil Service Tribunal of the European Union of 1 February 2008 in Case F‑77/07 Labate v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000; to accord to the present action appropriate priority and deliver judgment within six weeks; to order such other or further remedies as may be necessary; and to order the Commission to pay the costs.

Held: The action registered as Case F‑64/09 Labate v Commission is referred to the Court of First Instance. The costs are reserved.

Summary

Officials – Actions – Action for failure to act – Lack of jurisdiction of the Civil Service Tribunal

(Arts 232 EC and 236 EC; Staff Regulations, Art. 91)

An action which does not seek the annulment of an act adversely affecting the applicant, but a finding that an institution has unlawfully omitted to act, and which was preceded by the procedure for calling upon an institution to act provided for in Article 232 EC and is clearly presented as being based on Article 232 EC is an action for failure to act which, pursuant to the first subparagraph of Article 225(1) EC and the first paragraph of Article 51 of the Statute of the Court of Justice, falls within the jurisdiction of the Court of First Instance.

That finding is not called into question by the fact that the action in question originates in the employment relationship between an institution and a person to whom the Staff Regulations apply and that it therefore falls within the scope of Article 236 EC.

The question whether, in such a dispute, the applicant may bring an action for failure to act, even though he has, under Articles 90 and 91 of the Staff Regulations, the possibility of challenging the administration’s failure to act by an action against an implied decision rejecting a request, may be adjudicated on only by the court having jurisdiction to rule on actions for failure to act, namely the Court of First Instance, and not by the Civil Service Tribunal.

(see paras 20-23)

See:

Judgment of 6 July 2009 in T-176/04 DEP Marcuccio v Commission, not published in the ECR, paras 23 to 27; judgment of 9 July 2009 in T-176/08 Infeurope v Commission, not published in the ECR, paras 36 to 40

ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

29 September 2009 ( )

(Staff cases – Officials – Social security – Insurance against the risk of accident and occupational disease – Occupational disease – Action for failure to act – Lack of jurisdiction of the Tribunal – Referral to the Court of First Instance)

In Case F‑64/09,

ACTION pursuant to Article 232 EC,

Kay Labate, widow of Mr Mario Labate, former official of the Commission of the European Communities, residing in Tarquinia (Italy), represented by I. Forrester QC,

applicant,

v

Commission of the European Communities,

defendant,

THE TRIBUNAL (First Chamber),

composed of S. Gervasoni (Rapporteur), President, H. Kreppel and H. Tagaras, Judges,

Registrar: W. Hakenberg,

makes the following

Order

1 By application received at the Tribunal Registry by fax on 22 June 2009 (the original being lodged on 25 June 2009), Mrs Labate claims that the Tribunal should:

– find that there has been a failure to act on the part of the Commission of the European Communities, within the meaning of Article 232 EC;

– order the Commission to take the measures necessary to comply with the order of the Tribunal of 1 February 2008 in Case F‑77/07 Labate v Commission (not yet published in the ECR);

– accord to the present action appropriate priority and deliver judgment within six weeks;

– order such other or further remedies as may be necessary;

– order the Commission to pay the costs.

Background to the dispute

2 On 14 October 2003, Mr Labate made an application to the Commission, in accordance with Article 73 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), for the recognition of his lung cancer as an occupational disease. In that application, he submitted that the origin of this disease was the passive smoking to which he had been consistently exposed throughout his 29 years’ service with the Commission.

3 On 13 February 2004, Mr Labate was declared totally and permanently incapacitated from performing his duties and was awarded an invalidity pension.

4 By decision of 18 October 2004, the Commission refused to recognise that Mr Labate’s illness was an occupational disease. He challenged that decision and requested that his case be referred to a Medical Committee.

5 Mr Labate died as a result of his illness on 6 May 2006.

6 On 6 October 2006, basing its decision on an unfavourable opinion of the Medical Committee dated 3 July 2006, the Commission rejected the application for recognition of Mr Labate’s illness as an occupational disease.

7 On 31 July 2007, Mrs Labate, Mr Labate’s widow, brought an action before the Tribunal, registered as Case F‑77/07, seeking inter alia annulment of the decision of 6 October 2006.

8 By letter of 19 October 2007, the Commission informed the Tribunal that it had decided to withdraw the decision of 6 October 2006 and to grant the Medical Committee a new mandate, requesting that it proceed with all due diligence. The Commission stated in that letter that the applicant had been notified of the withdrawal. Stating that it was willing to pay the reasonable costs incurred by the applicant in submitting her application, the Commission asked the Tribunal not to adjudicate on Case F‑77/07. Attached to that letter was a copy of a letter of 17 October 2007, in which the Head of the accidents and occupational diseases section of the ‘Office for the Administration and Payment of Individual Entitlements’ (POM) informed the applicant that ‘an obligation to give a more detailed statement of reasons [for the findings of the Medical Committee] [was] certainly justified on some aspects’ and that it had therefore ‘decided to annul the decision of 6 October 2006’ and to ‘establish a supplementary mandate for the members of the Medical Committee, asking them to review, supplement and justify their fresh findings, whatever those findings should be’.

9 The Tribunal held, inter alia, in its order in Case F‑77/07 Labate v Commission that there was no further need to adjudicate on the claim seeking annulment of the decision of 6 October 2006 and ordered the Commission to pay all the costs.

10 By letters of 26 February, 13 March and 15 April 2008, the applicant sought information from the Commission as to the progress being made by the Medical Committee.

11 In a letter of 12 November 2008, the applicant expressed her dismay at the fact that the Medical Committee had not yet reconvened.

12 By order of 20 January 2009, taking account of the unusual volume of work and investment of time justified by the special characteristics of Case F‑77/07, the Tribunal fixed the amount of costs recoverable by the applicant in that case at EUR 21 568.90 (order in Case F‑77/07 DEP Labate v Commission, not yet published in the ECR).

13 By letter of 20 February 2009, the applicant made a formal request to the Commission, pursuant to Article 232 EC, to define its position on the application for recognition of her husband’s illness as an occupational disease. That letter concluded in the following terms: ‘This is a request to act under Article 232 of the EC Treaty. If we do not receive a satisfactory response within two months we will be compelled to bring an action for failure to act under Article 232 EC.’

14 By letter of 9 March 2009, the Commission indicated to the applicant that it shared her concern regarding the delay in the procedure before the Medical Committee, but went on to state that the Committee had already held a meeting on 15 December 2008 and that a second meeting had been scheduled for 16 March 2009.

15 By letter of 8 May 2009, the applicant reiterated her request that the Commission take a decision as soon as possible and, in any event, before 30 June 2009 – the date of expiry of the two-month period following the expiry of the period of the same length within which the Commission was required to take a decision, as referred to in the letter of 20 February 2009 – and stated her intention, in the absence of such a decision, to initiate proceedings before ‘the Tribunal’.

16 By letter of 12 May 2009, the Commission replied to the applicant that the final report of the Medical Committee had that morning been sent by Dr C’s secretary for signature to the other two doctors who were members of the Committee and that the Commission would take its decision as soon as it received that report.

The jurisdiction of the Tribunal

17 First, it is clear from the documents before the Tribunal, in particular the letter of 20 February 2009 and the form of order sought in the application, that the applicant has brought an action for failure to act, as provided for in Article 232 EC, by referring to that article and complying with the procedural rules laid down therein, namely the requirements to call upon the institution concerned to act and observe the two‑month time‑limit prescribed in the second paragraph of that article.

18 The first subparagraph of Article 225(1) EC and the first paragraph of Article 51 of the Statute of the Court of Justice provide that the Court of First Instance of the European Communities has jurisdiction to hear and determine at first instance actions for failure to act brought by individuals.

19 Second, when questioned on this point by the Registry of the Tribunal, counsel for the applicant confirmed that the lodging of the application with the Registry of the Tribunal and not that of the Court of First Instance was not the result of an error on his part. The Tribunal was not therefore immediately able to forward the application to the Court of First Instance pursuant to Article 8(1) of the Annex to the Statute of the Court of Justice.

20 Third, it is accepted that the application does not seek, whether expressly or by implication, the annulment of an act adopted by the Commission which would adversely affect the applicant. The wording itself of the application, clearly presented as being based on Article 232 EC, precludes any reclassification of the form of order sought (see, to that effect, order of the Court of First Instance of 6 July 2009 in Case T‑176/04 DEP Marcuccio v Commission, not published in the ECR, paragraphs 23 to 27). In any event, if the subject-matter of the case as defined by the applicant is not to be distorted, the present action cannot therefore be construed as having been brought on the basis of Article 91 of the Staff Regulations, which provides that the Tribunal has jurisdiction in any dispute between the Communities and any person to whom those regulations apply ‘regarding the legality of an act adversely affecting such person’. As a consequence, even though the dispute between the applicant and the Commission derives from the employment relationship between the Commission and Mr Labate and therefore falls within the scope of Article 236 EC, the present action cannot be regarded as raising an issue which, notwithstanding the terms in which the form of order sought by the applicant is couched, should be adjudicated on by the Tribunal under a rule of jurisdiction based on public policy.

21 Indeed, the question may arise as to whether the applicant is entitled in the present case to bring an action for failure to act on the basis of Article 232 EC.

22 First, the applicant is a ‘person to whom [the] Staff Regulations apply’ within the meaning of Article 91 of those regulations and is in dispute, not with the Commission as a Community institution, but with the appointing authority within the Commission, that is to say, with the Commission as employer. Next, the applicant is challenging a refusal to take action on the part of the appointing authority, a matter that she would be entitled to contest by means of the legal remedies provided in Articles 90 and 91 of the Staff Regulations, under which it is permissible, inter alia, to call into question an omission to act on the part of the administration by bringing an action against an implied decision rejecting a request to take a decision (see, by analogy, order of 9 July 2009 in Case T‑176/08 Infeurope v Commission, not published in the ECR, paragraphs 36 to 40). Lastly, even though this does not appear to be the position in the present case, the eventuality cannot be excluded, first, of a ‘person to whom [the] Staff Regulations apply’ pursuing at the same time an action for failure to act and the dispute procedure provided for in the Staff Regulations, thereby provoking procedural difficulties as to the determination of both the court having jurisdiction and the applicable rules on admissibility, and, second, even of a ‘person to whom [the] Staff Regulations apply’ giving, through pursuit of an action for failure to act, precedence to the jurisdiction of the Court of First Instance over that of the Tribunal, despite the Tribunal’s being the ordinary court for Community staff cases.

23 However, the Tribunal considers that that question is to be examined only by the court having jurisdiction to rule on actions for failure to act brought by individuals, namely the Court of First Instance.

24 It follows from the foregoing that the conditions laid down in Article 8(2) of the Annex to the Statute of the Court of Justice are satisfied.

25 Accordingly, Case F‑64/09 must be referred to the Court of First Instance for determination.

On those grounds,

THE TRIBUNAL (First Chamber)

hereby orders:

1. The action registered as Case F‑64/09 Labate v Commission is referred to the Court of First Instance.

2. The costs are reserved.

Luxembourg, 29 September 2009.





W. Hakenberg S. Gervasoni

Registrar President