ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

4 November 2008

Case F-18/07

Luigi Marcuccio

v

Commission of the European Communities

(Civil service – Officials – Claim – Explicit rejection notified after the implicit rejection – Purely confirmatory measure – Complaint made out of time – Manifest inadmissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mr Marcuccio seeks in particular annulment of the Commission’s decision of 25 October 2005 rejecting his claim for recognition that he has a serious illness for the purposes of Article 72 of the Staff Regulations and the Joint Sickness Insurance Scheme of the European Communities.

Held: The action is dismissed as manifestly inadmissible. The Commission is to bear its own costs and to pay one third of the applicant’s costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Definition – Explicit rejection of a request notified after the implicit rejection decision became definitive – Confirmatory measure

(Staff Regulations, Arts 90 and 91)

2.      Procedure – Costs – Set-off – Exceptional grounds

(Rules of Procedure of the Court of First Instance, Art. 87(3), first subpara.; Rules of Procedure of the Civil Service Tribunal, Art. 122)

1.      An explicit decision rejecting a request which has been notified to the official concerned after the implicit rejection decision has become definitive merely constitutes a purely confirmatory measure of the latter decision and cannot therefore be regarded as an act having an adverse effect which can be the subject, under Article 91(1) of the Staff Regulations, of an action for annulment.

(see para. 27)

2.      Under the first subparagraph of Article 87(3) of the Rules of the Procedure of the Court of First Instance, applicable mutatis mutandis to cases pending before the Civil Service Tribunal prior to the entry into force of its own Rules of Procedure on 1 November 2007, where the circumstances are exceptional, the Civil Service Tribunal may order that the costs be shared.

The fact that, in an appeal that was rejected because the prior complaint was submitted late, the administration did not inform the official concerned that the decision that was the subject of his complaint was merely a purely confirmatory measure whose annulment could not be sought, and that the administration also failed to mention that the complaint might be late, thus infringing its duty to have regard for his welfare by possibly giving the official the mistaken impression that if he intended to bring an action it would be admissible, constitutes an exceptional circumstance justifying a sharing between the institution in question and the official who is the applicant of the costs incurred by the latter for the purposes of the proceedings.

(see paras 35-39)