(First Chamber)

25 March 2010

Case F-102/08

Luigi Marcuccio


European Commission

(Civil service — Officials — Dispatch of the applicant’s personal effects — Action for damages — Action manifestly inadmissible — Action manifestly unfounded in law — Article 94 of the Rules of Procedure)

Application: brought under Articles 236 EC and 152 EA, in which Mr Marcuccio seeks, principally, a declaration of invalidity or, at the very least, annulment of the Commission’s decision refusing to provide him with copies of the photographs taken during the dispatch of his effects from his official lodgings in Luanda (Angola) and to destroy all documents relating to that dispatch, together with an order that the Commission compensate him for the damage resulting from the fact that it allegedly carried out that dispatch against his will.

Held: The applicant’s application is dismissed as, in part, manifestly inadmissible and, in part, manifestly unfounded in law. The applicant is ordered to pay the costs. The applicant is ordered to reimburse to the Tribunal the sum of EUR 1 500.


1.      Officials — Actions — Actions for damages — Claim for annulment of a pre-litigation decision refusing a request for compensation

(Staff Regulations, Arts 90 and 91)

2.      Acts of the institutions — Presumption of validity — Non-existent act — Definition

(Art. 249 CE)

3.      Officials — Actions — Prior administrative complaint — Time-limits — Claim barred by lapse of time — Reopening — Condition — New and material fact

(Staff Regulations, Arts 90 and 91)

1.      An institution’s decision rejecting a claim for compensation forms an integral part of the preliminary administrative procedure which precedes an action to establish liability before the Civil Service Tribunal and, consequently, claims for annulment of it cannot be assessed in isolation from the claims relating to compensation.

(see para. 23)


T‑90/95 Gill v Commission [1997] ECR-SC I‑A‑471 and II‑1231, para. 45; T‑77/99 Ojha v Commission [2001] ECR-SC I‑A‑61 and II‑293, para. 68; T‑209/99 Hoyer v Commission [2002] ECR-SC I‑A‑243 and II‑1211, para. 32

2.      Only acts tainted by irregularities which are particularly serious and obvious may be declared non-existent. The seriousness of the consequences resulting from a declaration that an act of an institution is non-existent demands that, for reasons of legal certainty, such a declaration be reserved for the most extreme situations.

A decision of the Commission refusing to destroy documents which it has preserved on the ground that they constitute a guarantee enabling both the official concerned and the institution itself to check that all the official’s effects were dispatched to his new residence does not present any irregularities of that nature.

(see paras 29, 32)


1/57 and 14/57 Société des usines à tubes de la Sarre v High Authority [1957 and 1958] ECR 105, 112; C‑137/92 P Commission v BASF and Others [1994] ECR I‑2555, para. 50; C‑475/01 Commission v Greece [2004] ECR I‑8923, para. 20

3.      Although Article 90(1) of the Staff Regulations provides that any official may request the appointing authority to take a decision relating to him, that right does not allow an official to set aside the time-limits laid down in Articles 90 and 91 of the Staff Regulations for the lodging of a complaint and an appeal by indirectly calling in question by means of a request a previous decision which has not been challenged within the period prescribed. Only the existence of material new facts may justify the submission of a request for a review of such a decision.

(see para. 36)


127/84 Esly v Commission [1985] ECR 1437, para. 10