ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Single Judge)
4 June 2013
Case F‑119/11
Luigi Marcuccio
v
European Commission
(Civil service — Article 34(1) of the Rules of Procedure — Application lodged by fax within the period prescribed for bringing an action and signed by means of a stamp or other means of reproducing the lawyer’s signature — Action lodged out of time)
Application: by Mr Marcuccio pursuant to Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, seeking, amongst other things, a declaration that the decision of the European Commission rejecting his request of 6 September 2010 and that rejecting his complaint of 20 March 2011 should be treated as non-existent, or annulled, as well as certain findings of fact relating to the events of 14, 16 and 19 March 2002, a declaration that those events were unlawful, and an order requiring the Commission to take specified steps and to compensate him for loss suffered. The lodging of the application by post had been preceded, on 11 November 2011, by the fax transmission of a document presented as a copy of the original application.
Held: The application is dismissed, in part as manifestly inadmissible and in part as manifestly unfounded. Mr Marcuccio is to bear his own costs and is ordered to pay those incurred by the European Commission.
Summary
1. Officials — Acts of the administration — Presumption of validity — Non-existent act — Meaning — Rejection of an official’s request for compensation — Failure to state reasons — Inapplicability
(Art. 288 TFEU)
2. Judicial proceedings — Application initiating proceedings — Formal requirements — Handwritten signature of a lawyer — Substantive rule of strict application — No such signature — Inadmissibility
(Statute of the Court of Justice, Arts 19 para. 3, 21 para. 1, 32 para. 1, Annex I, Art. 7(1); Rules of Procedure of the Civil Service Tribunal, Arts 34(1) sub-para 1, 35(1)(b), 51(3) and 51(4); Staff Regulations, Art. 91(3))
1. Acts of the Union institutions are in principle presumed to be lawful and accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn. However, by way of exception to that principle, acts tainted by an irregularity of such obvious gravity that it cannot be tolerated by the Union’s legal system must be deemed not to have produced any legal effects. The gravity of the consequences attaching to a finding that a measure of a Union institution is non-existent means that, for reasons of legal certainty, such a finding may be reserved for quite extreme situations.
In any event, the breach of the sanctity of his home and of the right to respect for private life and the infringement of the obligation to state reasons relied on by an official against an implied decision rejecting his request for compensation for damage allegedly caused by Commission staff entering his property and taking photographs cannot be considered to be such extreme situations, if only on the ground that, first, in failing to respond to that official’s request within the prescribed period of four months, the Commission did not breach the sanctity of his home or his private life and, second, a decision rejecting that request cannot be regarded as non-existent solely because no reasons were stated for it, as such a defect has no effect on the lawfulness of such a decision, whose sole effect is to allow the applicant to bring an action for damages before the Civil Service Tribunal.
(see paras 25, 28)
See:
24 November 2010, T‑9/09 P Marcuccio v Commission, para. 37 and the case-law cited
2. The effect of the third paragraph of Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice, which apply to proceedings before the Civil Service Tribunal by virtue of Article 7(1) of Annex I to the Statute, is that every applicant must be represented by a duly authorised person. Consequently, proceedings before the Courts of the Union can only validly be instituted by an application signed by such a person.
Furthermore, it is clear from the wording of the third paragraph of Article 19 of the Statute, and in particular from the use of the term “represented”, that a “party” within the meaning of that provision, whatever his standing, is not authorised to act in person before the Courts of the Union, but must use the services of a third party, who must be authorised to practise before a court of a Member State or of a State which is a party to the EEA Agreement. Other provisions of the Statute, such as the first paragraph of Article 21 and Article 32, confirm that a party and his representative may not be one and the same person. Those provisions of the Statute are restated in the Rules of Procedure of the Civil Service Tribunal, in particular in Articles 34(1), 35(1)(b), 51(3) and 51(4). Neither the Statute nor the Rules of Procedure provide for any derogation or exception.
The requirement for a signature on the application initiating the proceedings, which can have been placed there only by the party’s representative within the meaning of Article 34(1) of the Rules of Procedure of the Civil Service Tribunal, is intended, with the object of legal certainty, to ensure the authenticity of the application and to exclude the risk that the application is not in reality the work of the duly authorised person. That requirement must therefore be considered to be an essential procedural rule and to be of strict application, so that failure to comply therewith renders the action inadmissible. The indirect and mechanical fashion of ‘signing’ consisting in the placing on the application initiating the proceedings of a stamp or some other means of reproducing the signature of the lawyer instructed by the applicant does not in itself enable it to be determined that it is necessarily the lawyer himself who signed the procedural document in question.
(see paras 30-32, 35-36)
See:
5 December 1996, C‑174/96 P Lopes v Court of Justice, para. 8 and the case-law cited
23 May 2007, T‑223/06 P Parliament v Eistrup, paras 51 and 52