EN Official Journal of the European Union C 138/41

Appeal brought on 19 February 2015 by Court of Justice of the European Union against the order of the General Court (Third Chamber) delivered on 9 January 2015 in Case T-409/14 Marcuccio v European Union and Court of Justice of the European Union

(Case C-77/15 P)

(2015/C 138/55)

Language of the case: Italian

Parties

Appellant: Court of Justice of the European Union (represented by: A.V. Placco, Agent)

Other party to the proceedings: Luigi Marcuccio

Form of order sought

The CJEU claims that the Court of Justice should:

— Set aside the order of the General Court of the European Union (Third Chamber) of 9 January 2015 in Case T-409/14 Marcuccio v European Union and Court of Justice of the European Union, in so far as is rejects the second, third and fourth heads of claim of its application to the General Court under Article 114 of that court’s Rules of Procedure;

— grant those heads of claim and, accordingly: — giving a final ruling on the dispute, dismiss Mr Marcuccio’s damages claim as inadmissible on the basis that it is directed against the CJEU (as representative of the European Union); — as a subsidiary claim, in the event that the Court of Justice considers that the fact that that claim is directed against the CJEU and not against the Commission (as representative of the European Union) is irrelevant to the admissibility of the claim, but that, in ruling on the preliminary issue raised by the CJEU before the General Court, that Court should have ordered that the Commission should be substituted for the CJEU as defendant, refer the case back to the General Court in order for it to give a ruling on Mr Marcuccio’s damages claim, in compliance with the points of law decided by the Court of Justice;

— order Mr Marcuccio to pay the costs incurred by the CJEU in the proceedings at first instance and in the appeal proceedings.

Pleas in law and main arguments

In its first ground of appeal, concerning infringement of the rules governing the representation of the European Union before its judicial bodies, the CJEU submits that, as there is no express provisions specifically relating to the representation of the European Union before its judicial bodies in actions brought under Article 268 TFEU seeking a declaration of the EU’s non-contractual liability, the rules relating to such representation are to be derived from the general principles governing the exercise of the adjudicative function, in particular the principle of sound administration of justice and the principles that justice must be dispensed independently and impartially.

The CJEU divides the first ground of appeal into two parts concerning, on the one hand, failure to comply with the principle of sound administration of justice and, on the other, failure to comply with the principles that justice must be dispensed independently and impartially. In connection with the first part, the CJEU observes that the General Court’s conclusion that it is the task of the CJEU to represent the EU in the damages claim referred to above is clearly based on the case-law established by the judgment in Werhahn Hansamühle and Others v Council and Commission (63/72 to 69/71, EU:C:1973:121 (‘the judgment in Werhahn and Others’). The approach adopted in that line of case-law is to the effect that, where the Community (now the EU) is required to answer for the acts of one its institutions, it is to be represented before the Courts of the European Union by the institution (or institutions) to which the act giving rise to liability may be attributed. The CJEU maintains that that approach should not have been applied in the present case, since, for various reasons, the outcome of that approach is in fact contrary to the interests of the sound administration of justice, which, as is made expressly clear in the judgment in Werhahn and Others, is the raison d’être of that approach. In that context, the CJEU also alleges, as an incidental plea, failure to have due regard for the scope of the first paragraph of Article 317 TFEU and Article 53(1) of Regulation No 966/2012 (1), pursuant to which the General Court should have accepted the principle that damages such as those claimed in the present case should be allocated to the section of the EU budget relating to the Commission.

In the second part of the first ground of appeal, the CJEU submits, in reliance on the judgment of the ECHR of 10 July 2008 in Mihalkov v Bulgaria (Case No 67719/01), that, in finding that the CJEU should represent the EU in Mr Marcuccio’s damages claim, the General Court failed to have regard to the requirements that a court must be independent and objectively impartial. Since, on the one hand, the act giving rise to the alleged liability occurred in the course of the exercise of its judicial functions by a bench of judges and, on the other, the bench of judges called upon to rule in the case (i) belongs to the same judicial body (the General Court) to which the body of judges to which liability has been attributed for the act giving rise to liability belongs and (ii) forms an integral part of the defendant in the same case (the CJEU), to which the judges of that bench are professionally connected, the requirements referred to above would be compromised, especially in a case in which, as the General Court maintained, damages such as those claimed in the present case should be borne by the budget relating to the CJEU.

The CJEU goes on to claim, in its second ground of appeal, that, as it does not contain a specific rebuttal of the arguments put forward by the CJEU before the General Court, which were based on the scope of a series of judgments of the Court of Justice — including the judgment in Groupe Gascogne v Commission (C-58/12 P, EU:C:2013:770), Gascogne Sack v Commission (C-40/12 P, EU:C:2013:768) and Kendrion v Commission (C-50/12 P, EU:C:2013:771) — the order under appeal is vitiated in so far as it fails to have regard to the obligation to state reasons.

(1) Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).