ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
10 January 2011(1)
(Removal from the register – Action for failure to act – Discontinuance by the applicant – Award of costs against the other party)
In Case T-389/09,
Kay Labate, residing in Tarquinia (Italy), represented by I. Forrester QC,
applicant,
v
European Commission, represented by D. Martin and J. Baquero Cruz, acting as Agents,
defendant,
ACTION for failure to act seeking a declaration that the Commission unlawfully failed to take a decision on the request for the illness of the applicant’s husband, a former official of the Commission, to be recognised as occupational in nature.
Background to the dispute
1 On 14 October 2003, Mr Labate made an application to the Commission, in accordance with Article 73 of the Staff Regulations of Officials of the European Communities, for the recognition of his lung cancer as an occupational disease. In that application, he submitted that the origin of this disease was the passive smoking to which he had been consistently exposed throughout his 29 years’ service with the Commission.
2 On 13 February 2004, Mr Labate was declared totally and permanently incapacitated from performing his duties and was awarded an invalidity pension.
3 Mr Labate died as a result of his illness on 6 May 2006.
4 On 6 October 2006, basing its decision on an opinion of the Medical Committee dated 3 July 2006, the Commission rejected the application for recognition of Mr Labate’s illness as an occupational disease. In that opinion, the Medical Committee concluded that a definite connection between the disease and Mr Labate’s professional activities could not sufficiently be established.
5 On 31 July 2007, Mrs Labate, Mr Labate’s widow, brought an action before the Civil Service Tribunal, registered as Case F‑77/07, seeking inter alia annulment of the Commission’s decision of 6 October 2006.
6 By letter of 19 October 2007, the Commission, acknowledging that the opinion of the Medical Committee of 3 July 2006 was not sufficiently motivated with regard to some of its aspects, informed the Tribunal that it had decided to withdraw the decision of 6 October 2006 and to grant the Medical Committee a new mandate, requesting that it proceed with all due diligence.
7 The Tribunal held, inter alia, in its order of 1st February 2008 in Case F‑77/07 Labate v Commission that there was no further need to adjudicate on the claim seeking annulment of the decision of 6 October 2006 and ordered the Commission to pay all the costs.
8 The Medical Committee received its new mandate on 10 February 2008.
9 By various letters during the year 2008, the applicant sought information from the Commission as to the progress being made by the Medical Committee. In a letter of 12 November 2008, the applicant noted that the Medical Committee had not yet met despite having received its new mandate on 10 February 2008.
10 By letter of 20 February 2009, the applicant made a formal request to the Commission, pursuant to Article 232 EC, to define its position on the application for recognition of her husband’s illness as an occupational disease. That letter concluded in the following terms: ‘This is a request to act under Article 232 of the EC Treaty. If we do not receive a satisfactory response within two months we will be compelled to bring an action for failure to act under Article 232 EC.’
11 By letter of 9 March 2009, the Commission indicated to the applicant that it shared her concern regarding the delay in the procedure before the Medical Committee and went on to state that this Committee had held a first meeting on 15 December 2008 and that a second meeting had been scheduled for 16 March 2009.
12 By letter of 8 May 2009, the applicant reiterated her request that the Commission take a decision as soon as possible and, in any event, before 30 June 2009, the date of expiry of the period to lodge an action for failure to act pursuant to Article 232(2) EC.
13 By letter of 12 May 2009, the Commission replied to the applicant that the final report of the Medical Committee had that morning been sent by Dr C’s secretary for signature to the other two doctors who were members of the Committee and that the Commission would take its decision as soon as it received that report.
14 On 29 May 2009, the Commission informed the applicant that the doctors of the Medical Committee could not reach a decision because of lack of quantitative and qualitative data.
Procedure
15 By application lodged at the Registry of the Tribunal on 25 June 2009, registered as Case F-64/09, the applicant brought an action for a declaration that the Commission had failed to act within the meaning of Article 232 EC.
16 By order of the 29 September 2009, the Tribunal referred the action to the General Court, which was registered at the Registry of the latter on the same date as Case T-389/09.
17 The written procedure was closed on 14 April 2010.
18 By letter lodged at the Registry of the Court on 10 November 2010, the applicant informed the Court that it wished to withdraw her action for failure to act following the adoption by the Commission, on 6 May 2010, of a decision recognising the illness of Mr Labate as an occupational disease and its confirmation, on 22 October 2010, that it would pay the lump sum to which the applicant was entitled. By the same letter, the applicant requested also that the Commission be ordered to bear its own costs and those of the applicant.
19 By letter lodged at the Registry of the Court on 19 November 2010, the Commission informed the Court that it had no comments to make on the application for discontinuance. The Commission requested however that the applicant be ordered to bear its own costs and those incurred by it on the ground that the action for failure to act in the present case was inadmissible.
Costs
20 Under the first subparagraph of Article 87(5) of the Rules of Procedure, a party who discontinues or withdraws from proceedings shall be ordered to pay the costs if they have been applied for in the observations of the other party on the discontinuance. However, upon application by the party who discontinues or withdraws from proceedings, the costs shall be borne by the other party if this appears justified by the conduct of that party.
21 It must be observed first that, as the file of the case shows, important delays occurred in the examination of Mr Labate’s case by the Medical Committee. It is noted in particular that, following the receipt of the new mandate in February 2008, it took the Medical Committee ten months – that is in December 2008 - to convene for the first time. The file shows also that no substantial progress has been made in the period between the Medical Committee’s first meeting in December 2008 and the lodging of the action for failure to act at the Tribunal in June 2009. On the contrary, the Commission itself states that, on 29 May 2009, that is almost one month before the lodging of the action, it informed the applicant that the Medical Committee could not reach a decision because of lack of quantitative and qualitative data. It appears therefore that, in May 2009, the works of the Medical Committee were at a stalemate and that complementary studies should be launched for the gathering of the necessary data.
22 Certainly, the file shows that the delays in the procedure are generally attributable to the Medical Committee and that the Commission made efforts to speed up its works. However, it must be pointed out that, as the Court has already held in Case T‑394/03 Angeletti v Commission [2006] ECR‑SC I‑A‑2-95 et II-A-2-441, paragraph 159, the Commission bears responsibility for delays in the procedure that would be attributable to the Medical Committee.
23 Hence, having regard to the delays characterising the works of the Medical Committee following the grant of its new mandate in February 2008 and taking also into account the length of the procedure prior to this grant, initiated by the submission of Mr Labate’s original application in October 2003 and terminated by the Tribunal’s order of 1st February 2008, and its evolution – the adoption by the Commission of the negative decision of 6 October 2006 and its withdrawal on 17 October 2007 ‑ it must be held that the applicant found herself in a situation of unacceptable uncertainty. Thus, the delay caused by the work of the Medical Committee, which is fully attributable to the Commission, is evidence of a conduct justifying, upon application of the applicant, to order the Commission to bear the costs.
24 The Commission’s argument according to which the costs should be borne by the applicant on the ground that its action for failure to act was inadmissible, is ineffective. Pursuant to the second sentence of the first subparagraph of Article 87(5) of the Rules of Procedure, the Court is bound to order the other party to pay the costs if this appears justified by the conduct of that party. Hence, under this provision, the Court is not entitled to take into account aspects other than those referring to that partie’s conduct, including the possible inadmissibility of the applicant’s action for failure to act.
25 It follows from the above statements in paragraphs 21 to 24 above that, by reason of the Commission’s conduct, the Commission has to bear the costs pursuant to the second sentence of the first subparagraph of Article 87(5) of the Rules of Procedure.
26 The case will therefore be removed from the register and the Commission ordered to pay the costs.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. Case T-389/09 is removed from the register of the General Court.
2. The defendant shall bear its own costs and those of the applicant.
Luxembourg, 10 January 2011.