ORDER OF THE GENERAL COURT (Appeal Chamber)

8 July 2010

Case T-166/09 P

Luigi Marcuccio

v

European Commission

(Appeal — Civil service — Officials — Order of referral — Decision which cannot be the subject of an appeal — Action for damages — Pre-litigation procedure — Procedural defects — Appeal in part manifestly inadmissible and in part manifestly unfounded)

Appeal: against the order of the European Union Civil Service Tribunal (First Chamber) of 18 February 2009 in Case F-70/07 Marcuccio v Commission ECR-SC I-A-1-31 and II-A-1-135, seeking the annulment of that order.

Held: The appeal is dismissed. Mr Luigi Marcuccio is to bear his own costs and pay those incurred by the European Commission in the present proceedings.

Summary

1.      Appeals — Subject-matter — Annulment of an order of the Civil Service Tribunal declining jurisdiction in favour of the Court of Justice or the Court of First Instance — Inadmissibility

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

2.      Officials — Actions — Action for damages — Pre-litigation procedure — Different depending on whether or not there is an act adversely affecting the official

(Staff Regulations, Arts 90 and 91)

3.      Procedure — Application initiating proceedings — Formal requirements

(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

1.      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 Court of First Instance 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 judicature, 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 an exchange of arguments between the parties before the Court of First Instance 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 a divided action, since, in the same case, both the case referred and the appeal against the referral would be pending before the Court of First Instance.

(see paras 26-30)

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

2.      In order to comply with the pre-litigation procedure provided for in the Staff Regulations, an official seeking compensation for harm allegedly suffered as a result of wrongful conduct against him by the institution to which he belongs must submit a request as provided for in Article 90(1) of the Staff Regulations. The rejection of that request will constitute a decision adversely affecting the official in question against which he can lodge a complaint, and it is only after adopting an express or implied decision rejecting that complaint that an action for damages may be brought before the Union judicature.

An action for damages brought without following the two-stage pre-litigation procedure required by the Staff Regulations and described above is inadmissible.

However, if the official wishes to challenge an act adversely affecting him, he may submit a complaint to the appointing authority directly and, if it is rejected, bring an action before the Court of First Instance. Following the rejection of a complaint against an act adversely affecting an official, he may bring an action for annulment of that act or for damages or both.

(see paras 45-47)

See: T‑54/92 Schneider v Commission [1994] ECR-SC I‑A‑281 and II‑887, paras 53 and 63; T‑416/03 Angelidis v Parliament [2006] ECR-SC I‑A‑2‑317 and II‑A‑2‑1607, paras 130 and 131; T‑285/04 Andrieu v Commission [2006] ECR-SC I‑A‑2‑161 and II‑A‑2‑275, para. 132 and the case-law cited therein; T‑156/08 P R v Commission [2009] ECR-SC I-B-1-11 and II-B-1-51, para. 76

3.      Under the first paragraph of Article 21 of the Statute of the Court of Justice, which applies to the procedure before the Court of First Instance pursuant to the first paragraph of Article 53 of that Statute, and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, the application must, inter alia, contain a summary of the pleas in law. It must specify the nature of the grounds on which the action is based. That summary — albeit concise — must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court of First Instance to rule on the action, if necessary, without any further information.

In order to ensure legal certainty and the sound administration of justice, it is necessary — if an action or, more specifically, a plea in law, is to be admissible — that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself. It is not the task of the Court of First Instance to search through all the matters relied on in support of a first plea in order to ascertain whether those matters could also be used in support of a second plea.

(see para. 76)

See: T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, para. 36; T‑322/01 Roquette Frères v Commission [2006] ECR II‑3137, paras 208 and 209; T‑308/05 Italy v Commission [2007] ECR II‑5089, paras 71 and 72