ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

1 February 2008

Case F-77/07

Kay Labate

v

Commission of the European Communities

(Civil service – Officials – Social security – Insurance against the risk of accident and occupational disease – Occupational disease – Lung cancer – Passive smoking – No need to adjudicate)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Labate seeks annulment of the Commission decisions of 18 October 2004 and 6 October 2006 not to recognise the lung cancer which led to the death of her husband as being an occupational disease, an order for the Commission to pay her all the compensation to which she is entitled under Article 73 of the Staff Regulations and to reimburse her for the travel expenses incurred for her husband’s frequent trips to consult his doctor in Brussels, pursuant to Article 9 of the Common Rules on the Insurance of Officials of the European Communities against the Risk of Accident and Occupational Disease, an order for such other or further relief as justice may require, and an order for the Commission to pay the costs.

Held: There is no further need to adjudicate on the form of order sought by the applicant in her application. The claims for compensation submitted in the applicant’s letter of 25 October 2007 are dismissed as manifestly unfounded. The Commission is ordered to pay the costs.

Summary

1.      Actions for annulment – Action brought against a decision – Withdrawal in the course of proceedings of the contested decision – Application devoid of purpose – No need to adjudicate

(Rules of Procedure of the Civil Service Tribunal, Art. 75)

2.      Officials – Actions – Unlimited jurisdiction – Order made by the Court of its own motion for the payment of compensation by the defendant institution

(Staff Regulations, Art. 91(1))

1.      There is no longer any need to adjudicate on an action for annulment where, in the course of the proceedings, the contested decision has been formally withdrawn by the institution that was the author of that decision, and where that withdrawal was not accompanied by the concomitant adoption of another decision with the same subject-matter. Such a withdrawal, which retroactively deprives the contested decision of its existence in law, produces effects equivalent to those which might have resulted from the annulment of that decision by a court judgment.

The argument that the institution withdrew the contested decision in order to forestall judicial review does not establish that the case still has a purpose. The institution cannot be criticised for considering it desirable, after examining the application and all the facts of the dispute, to remedy certain inadequacies or irregularities affecting that decision by re-opening the adoption procedure. Furthermore, the belated nature of the withdrawal, although regrettable, does not affect the finding that the contested decision no longer exists in law.

(see paras 7, 11, 13)

See:

T-22/96 Langdon v Commission [1996] ECR II‑1009, paras 12 to 14

2.      While it is true that the Tribunal has unlimited jurisdiction in disputes of a financial character under Article 91(1) of the Staff Regulations, and it may order, even of its own motion, an institution to pay compensation for non-material damage caused to the applicant, it may issue such an order only after having examined the legality of the act referred for it to review. In so far as the Tribunal is not in a position to examine the legality of the contested measure or to assess whether there has been actual damage, as claimed, and its extent, the institution cannot be regarded as having already incurred liability.

In the case, therefore, of an application for payment of compensation for the damage resulting from the unreasonable delay in the procedure for recognition of the occupational origin of a disease resulting from the withdrawal of the initial decision and the consecutive re‑opening of the procedure before the Medical Committee, the Tribunal is not able to undertake an examination of the legality of the withdrawn decision or of the unreasonable nature of the delay in a procedure which is still in progress, in relation to which neither all its stages nor all the circumstances pertaining to its conduct are susceptible of review, and whose total duration the Tribunal cannot prejudge. Furthermore, the actual content of the decision that will ultimately be adopted is, by definition, unknown to the parties and to the Tribunal, and the applicant’s claims for compensation will necessarily depend on the decision taken at the end of the procedure.

(see paras 16-22)

See:

T-99/95 Stott v Commission [1996] ECR II‑2227, para. 72; T-394/03 Angeletti v Commission [2006] ECR-SC I‑A‑2‑95 and II‑A‑2‑441, paras 163 to 167 and the case-law cited therein; T-402/03 Katalagarianakis v Commission [2007] ECR-SC I-A-0000, para. 104