ORDER OF THE GENERAL COURT (Appeal Chamber)

12 June 2012

Case T‑65/12 P

Guido Strack

v

European Commission

(Appeal — Civil service — Officials — Order for referral of action — Decision not capable of appeal — Appeal manifestly inadmissible)

Appeal:      brought against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 7 December 2011 in Case F‑44/05 RENV Strack v Commission, not published in the ECR, seeking to have that order set aside.

Held:      The appeal is dismissed. Mr Guido Strack is to bear his own costs and to pay those incurred by the European Commission in the present case.

Summary

Appeals — Subject-matter — Setting aside an order of the Civil Service Tribunal declining jurisdiction in favour of the Court of Justice or of the General Court — Inadmissibility

(Statute of the Court of Justice, Annex I, Art. 9, first and second paras)

The conditions of the first and second paragraphs of Article 9 of Annex I to the Statute of the Court of Justice, concerning decisions which may be appealed against, are not satisfied where the Civil Service Tribunal does not find that the European Union courts do not have jurisdiction, but refers the action to the General Court in accordance with the procedure laid down in Article 8(2) of Annex I to the Statute of the Court of Justice. Such a referral is not such as to compromise the judicial protection of the parties before the Union courts, which will, in any event, rule on all the issues raised by the action.

It is for the court to which the action has been referred to assess its own jurisdiction and, if appropriate, to refer the action back, in accordance with the special procedure for that purpose, to the court of first instance, which cannot then decline jurisdiction. That special mechanism allows the settlement of questions concerning the division of powers between the courts making up the institution of the Court of Justice of the European Union. From that point of view, and although the question of the courts’ jurisdiction may, where appropriate, also be the subject of argument between the parties before the General Court, in proceedings following a referral, the use of the appeals procedure in such a case is contrary to the rules set out in Annex I to the Statute of the Court of Justice and to the sound administration of justice. It would result in overlapping actions, since, in the same case, both the case referred and the appeal against the referral would be pending before the General Court.

(see paras 9-13)

See:

T‑413/06 P Gualtieri v Commission [2008] ECR-SC I‑B‑1‑35 and II‑B‑1‑253, paras 24, 25 and 27; 8 July 2010, T‑166/09 P Marcuccio v Commission, not published in the ECR, paras 28 to 30