ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

30 May 2013

Case F‑141/11

Luigi Marcuccio

v

European Commission

(Civil service — Article 34(1) and (6) of the Rules of Procedure — Application submitted by fax within the prescribed period — Handwritten signature of the lawyer different from that on the original of the application sent by post — Action lodged out of time — Manifest inadmissibility)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Marcuccio seeks, inter alia, annulment of the decisions by which the European Commission dismissed his requests of 5 October 2010, 2 November 2010, 6 December 2010, 3 January 2011 and 3 February 2011. Before the original application was lodged by post, a document purported to be a copy of the original application lodged by post was sent on 23 December 2011 by fax to the Registry of the Tribunal, which received it the same day.

Held:      The action is dismissed as manifestly inadmissible. Mr Marcuccio is to bear his own costs and is ordered to pay the costs incurred by the Commission.

Summary

1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Handwritten signature of a lawyer — Substantive rule of strict application — Absence — Inadmissibility

(Statute of the Court of Justice, Arts19, third para., and 21, first para., and Annex I, Art 7(1); Rules of Procedure of the Civil Service Tribunal, Art 34(1))

2.      Judicial proceedings — Application initiating proceedings — Formal requirements — Application submitted by fax within the prescribed period — Handwritten signature of the lawyer different from that on the original of the application sent by post — Consequence — Failure to take the date of receipt of the fax into account in order to determine compliance with the period prescribed for bringing an action

(Rules of Procedure of the Civil Service Tribunal, Art 34; Staff Regulations, Art 91(3))

3.      Actions brought by officials — Request for a declaration that no administrative measure exists — Conditions governing admissibility

(Art 288 TFUE; Staff Regulations, Arts 90 and 91)

1.      It follows from the third paragraph of Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice that every applicant must be represented by a person authorised for that purpose and that, consequently, an action may be validly brought before the Courts of the European Union only if that person signs the application. Under Article 7(1) of Annex I to the Statute of the Court of Justice, those provisions are also applicable to the procedure before the Civil Service Tribunal. No derogation from or exception to that obligation is provided for in the Statute of the Court of Justice or the Rules of Procedure of the Civil Service Tribunal.

The requirement of the handwritten signature of the applicant’s representative guarantees, with the aim of legal certainty, the authenticity of the application and excludes the risk that it is not the work of the lawyer or counsel authorised for that purpose. Thus, the latter, as an officer of the court, fulfils the essential role conferred on him by the Statute of the Court of Justice and the Rules of Procedure of the Civil Service Tribunal, in enabling, through his ministry, the applicant to have access to the Tribunal. That requirement must therefore be regarded as an essential procedural requirement and be strictly applicable, so that failure to comply with it renders the action inadmissible.

(see paras 20-21)

See:

5 December1996, C‑174/96 P Lopes v Court of Justice, para. 8 and the case-law cited

23 May 2007, T‑223/06 P Parliament v Eistrup, paras 50 to 52

2.      In the context of European Union civil service judicial proceedings, for the purpose of the lodging of the original of every procedural document within the prescribed period, Article 34 of the Rules of Procedure of the Civil Service Tribunal does not allow the representative of the party concerned to place two separate handwritten signatures, even if they are authentic, one on the document sent by fax to the Registry of the Tribunal and the other on the original that will be sent by post or delivered by hand to the Registry.

In those circumstances, if it is apparent that the original of the document which is physically lodged at the Registry within 10 days of a copy thereof being sent to the Civil Service Tribunal by fax does not bear the same signature as that on the document sent by fax, it must be held that two separate procedural documents arrived at the Registry of the Tribunal, each bearing a distinct signature even if each signature was placed on the relevant document by the same person. Since the lodging of the text sent by fax does not satisfy the conditions of legal certainty required by Article 34 of the Rules of Procedure of the Civil Service Tribunal, the date on which the copy was sent by fax cannot be taken into account for the purpose of compliance with the period prescribed for bringing an action.

Furthermore, the period for bringing an action is laid down in Article 91(3) of the Staff Regulations, from which the Rules of Procedure of the Civil Service Tribunal cannot derogate. Consequently, the original of the application must be drawn up no later than the end of that period. From that point of view, sending the relevant document is not only a mode of transmission, but also serves as proof that the original of the action received at the Registry of the Tribunal after that period has expired had already been drawn up within the period prescribed for bringing an action.

(see paras 23-25)

See:

22 September 2011, C‑426/10 P Bell & Ross BV v OHIM, paras 37 to 43

3.      In order to justify the admissibility of so serious an application as one for a declaration that an administrative act does not exist, an applicant’s claims must provide prima facie evidence either of a situation of extreme seriousness or of an irregularity the seriousness of which is so evident that it cannot be accepted under the European Union legal order.

(see para. 32)

See:

24 November 2010, T‑9/09 P Marcuccio v Commission, para. 37 et seq