ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

29 September 2009

Case F-64/09

Kay Labate

v

Commission of the European Communities

(Civil service – Officials – Social security – Insurance against the risk of accident and occupational disease – Occupational disease – Action for failure to act – Lack of jurisdiction of the Tribunal – Referral to the Court of First Instance)

Application: brought under Article 232 EC, in which Ms Labate asks the Tribunal, inter alia, to find that the Commission unlawfully failed to act within the meaning of Article 232 EC; to order the Commission to take the measures necessary to comply with the order of the Civil Service Tribunal of the European Union of 1 February 2008 in Case F‑77/07 Labate v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000; to accord to the present action appropriate priority and deliver judgment within six weeks; to order such other or further remedies as may be necessary; and to order the Commission to pay the costs.

Held: The action registered as Case F‑64/09 Labate v Commission is referred to the Court of First Instance. The costs are reserved.

Summary

Officials – Actions – Action for failure to act – Lack of jurisdiction of the Civil Service Tribunal

(Arts 232 EC and 236 EC; Staff Regulations, Art. 91)

An action which does not seek the annulment of an act adversely affecting the applicant, but a finding that an institution has unlawfully omitted to act, and which was preceded by the procedure for calling upon an institution to act provided for in Article 232 EC and is clearly presented as being based on Article 232 EC is an action for failure to act which, pursuant to the first subparagraph of Article 225(1) EC and the first paragraph of Article 51 of the Statute of the Court of Justice, falls within the jurisdiction of the Court of First Instance.

That finding is not called into question by the fact that the action in question originates in the employment relationship between an institution and a person to whom the Staff Regulations apply and that it therefore falls within the scope of Article 236 EC.

The question whether, in such a dispute, the applicant may bring an action for failure to act, even though he has, under Articles 90 and 91 of the Staff Regulations, the possibility of challenging the administration’s failure to act by an action against an implied decision rejecting a request, may be adjudicated on only by the court having jurisdiction to rule on actions for failure to act, namely the Court of First Instance, and not by the Civil Service Tribunal.

(see paras 20-23)

See:

Judgment of 6 July 2009 in T-176/04 DEP Marcuccio v Commission, not published in the ECR, paras 23 to 27; judgment of 9 July 2009 in T-176/08 Infeurope v Commission, not published in the ECR, paras 36 to 40