ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

28 June 2013

Case F‑44/11

Luigi Marcuccio

v

European Commission

(Civil service — Article 34(1) and (6) of the Rules of Procedure — Application lodged by fax within the period for bringing proceedings, extended on account of distance by a period of ten days — Application received by post within the following ten days — Applications not the same — Action out of time)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Marcuccio requests the Tribunal, in particular, to rule non-existent or to annul the European Commission’s decision rejecting his request of 6 March 2010 and the decision rejecting his complaint of 3 September 2010, and to grant him compensation for the damage allegedly suffered because of a letter sent on 8 March 2004 by one of the Medical Officers in the Commission’s Medical Service to his doctor. The original application, lodged by post, was preceded by a document faxed on 13 April 2011, which was presented as a copy of the original application.

Held:      The action is dismissed as manifestly inadmissible in part and manifestly unfounded in part. Mr Marcuccio is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1.      Officials — Acts of the administration — Presumption of validity — Non-existent act — Definition — Rejection of a claim for compensation from an official relying on the alleged misconduct of an institution’s Medical Officer resulting from the sending of certain information to the official’s doctor and rejection without a statement of reasons — Not included

(Art. 288 TFEU)

2.      Judicial proceedings — Application initiating proceedings — Formal requirements — Application lodged by fax within the time-limit for bringing proceedings — Lawyer’s hand-written signature different from that on the original application received by post — Consequence — Date of receipt of fax not taken into account for assessing whether time-limit for bringing proceedings has been met

(Rules of Procedure of the Civil Service Tribunal, Art. 34(1) and (6); 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accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn.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.

A breach of the right to respect for private life, confidentiality, ethical rules governing the medical profession and the obligation to state reasons may not be regarded as an extreme situation.

An application from an official for a declaration that a decision of the Commission was non-existent which rejected by implication his claim for compensation for damage allegedly caused by the sending of a letter by one of the Medical Officers in the Commission’s Medical Service to his doctor must therefore be dismissed as manifestly inadmissible where, first, the doctors are both members of the Invalidity Committee responsible for examining that official’s case and, second, the request for information made by the Medical Officer specifically falls within the context of the examination of the official’s invalidity application. In seeking such information, for the sole purpose of carrying out the tasks entrusted to him, the Medical Officer is acting in accordance with his duties, without exceeding his rights and powers, and without breaching the medical confidentiality which he is obliged to observe. The Medical Officer thus does not infringe any ethical rule applicable to his profession.

Furthermore, the fact that the Medical Officer informed the official’s doctor that the official’s administrative address had changed does not constitute a breach of respect for private life or of the duty of confidentiality, since that fact was stated in the decision reassigning the official in the interests of the service, which was communicated to the official and published, at the very least, within the institution. Lastly, a decision rejecting a claim for compensation cannot, in any event, be regarded as non-existent solely on the ground that it did not contain a statement of reasons.

(see paras 23, 26-29)

See:

24 November 2010, T‑9/09 P Marcuccio v Commission, para. 37 and the case-law cited therein

2.      In European Union civil service proceedings, in order to lodge any pleading properly, the provisions of Article 34 of the Rules of Procedure of the Civil Service Tribunal, and particularly paragraph 1 and paragraph 6, which allows applications to be submitted by fax, require the representative of the party to sign the original pleading by hand before submitting it by fax and to lodge the same original document with the Tribunal Registry within the next ten days at the latest.

That being so, if it is apparent retroactively that the original of the document which is physically lodged with the Registry within ten days of its submission by fax does not bear the same signature as that in the faxed document, it must be held that the Tribunal Registry received two separate procedural documents, even if the signature was appended by the same person. Since it is not for the Tribunal to check whether both texts are the same word for word, it is clear that, where the signature appended to one of the two documents is not identical to the signature appended to the other, the faxed document is not a copy of the original document that was lodged by post.

Moreover, if the submission of the faxed text does not satisfy the requirements of legal certainty laid down by Article 34 of the Rules of Procedure, the date on which the faxed document was lodged cannot be taken into account for the purpose of compliance with the time-limit for bringing proceedings.

(see paras 36-37, 39)