ORDER OF THE GENERAL COURT (Appeal Chamber)

8 March 2012

Case T‑126/11 P

Luigi Marcuccio

v

European Commission

(Appeal — Civil service — Officials — Social security — Reimbursement of medical expenses — Act adversely affecting an official — Implied refusal — Duty to state reasons — Appeal in part manifestly unfounded and in part manifestly inadmissible)

Appeal:      against the judgment delivered by the European Union Civil Service Tribunal (single judge) on 14 December 2010 in Case F‑1/10 Marcuccio v Commission, seeking the annulment in part of that judgment.

Held:      The appeal is dismissed in part as manifestly inadmissible and in part as manifestly devoid of any basis in law. The cross-appeal is dismissed in part as manifestly inadmissible and in part as manifestly devoid of any basis in law. Mr Luigi Marcuccio is to bear his own costs and to pay the costs incurred by the European Commission in the appeal. Each party is to bear its own costs of the cross-appeal.

Summary

1.      Appeals — Grounds — Review by the General Court of the Civil Service Tribunal’s legal characterisation of acts — Lawfulness

(Rules of Procedure of the General Court, Art. 48(2))

2.      Appeals — Grounds — Plea against the Civil Service Tribunal’s decision as to costs — Inadmissible where all other pleas are rejected

(Statute of the Court of Justice, Annex I, Art. 11(2))

3.      Appeals — Grounds — Review by the General Court of the Civil Service Tribunal’s appraisal of evidence — Possible only where the clear sense of the evidence has been distorted

(Statute of the Court of Justice, Annex I, Art. 11(1))

4.      Officials — Decision adversely affecting an official — Obligation to state reasons — Total absence of a statement of reasons– Regularisation after commencement of the appeal — Not permissible

(Staff Regulations, Art. 25, second para.)

1.      The Civil Service Tribunal’s legal characterisation of an act, in deciding for example whether a note written by the Commission in response to a claim for reimbursement of medical expenses should be considered an act adversely affecting an official, constitutes an issue of law which may be raised in the context of an appeal.

(see paras 27, 29)

See:

C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, para. 49; C‑412/05 P Alcon v OHIM [2007] ECR I‑3569, paras 38 to 40

T‑43/07 P Neophytou v Commission [2008] ECR-SC I‑B‑1‑53 and II‑B‑1‑373, para. 45

2.      It is apparent from Article 11(2) of Annex I to the Statute of the Court of Justice that no appeal lies regarding only the amount of the costs or the party ordered to pay them. It follows that, where all the other pleas in law in an appeal against a decision of the Civil Service Tribunal have been rejected, claims concerning the alleged irregularity of the Tribunal’s decision as to who should pay the costs must be dismissed as inadmissible.

(see para. 37)

See:

T‑375/08 P Nijs v Court of Auditors [2009] ECR-SC I‑B‑1‑65 and II‑B‑1‑413, para. 71 and the case-law cited

3.      Whether or not the evidence before the Civil Service Tribunal is sufficient is a matter to be appraised by it alone and, according to settled case-law, is not subject to review by the General Court on appeal, except where that evidence has been distorted or the inaccuracy of Tribunal’s findings is apparent from the documents in the case-file.

(see para. 41)

See:

C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, para. 19 and the case‑law cited

21 June 2011, T‑452/09 P Rosenbaum v Commission, not published in the ECR, para. 41

4.      Where, up to the time of commencement of an action before the Civil Service Tribunal, there is a total absence of any statement of reasons for a decision, such absence cannot be remedied by explanations given after that time. The possibility of regularising the total absence of a statement of reasons after an action has been brought might prejudice the right to a fair hearing because the applicant would have only the reply in which to set out his pleas contesting the reasons which he would not know until after he had lodged his application.

(see para. 47)

See:

T‑37/89 Hanning v Parliament [1990] ECR II‑463, paras 41 and 44; T‑52/90 Vogler v Parliament [1992] ECR II‑121, paras 40 and 41; T‑88/04 Tzirani v Commission [2006] ECR-SC I‑A‑2‑149 and II‑A‑2‑703, para. 46

2 March 2010, T‑248/08 P Doktor v Council, not published in the ECR, para. 93