Corte di giustizia UE/2011

[OSCURATO:PERSONA] [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 28 September 2011 ( * ) ([OSCURATO:PERSONA] service – Action for damages – Action manifestly inadmissible) [OSCURATO:PERSONA]6/11, ACTION brought under [OSCURATO:PERSONA] 270 TFEU, applicable to the EAEC Treaty pursuant to [OSCURATO:PERSONA] 106a thereof, M, a former member of the temporary staff of the [OSCURATO:PERSONA], residing in Broxbourne ([OSCURATO:PERSONA]), represented by C. Thomann, Barrister, and I. Khawaja, Solicitor, applicant, v [OSCURATO:PERSONA] (EMA), represented by V. Salvatore and N. [OSCURATO:PERSONA], acting as Agents, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of S. [OSCURATO:PERSONA], [OSCURATO:PERSONA], H. Kreppel (Rapporteur) and M.I. Rofes i Pujol, Judges, [OSCURATO:PERSONA]: W. Hakenberg, makes the following [OSCURATO:PERSONA] 1 By application lodged at the Registry of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 16 March 2010, registered as [OSCURATO:PERSONA]136/10, M requests that the [OSCURATO:PERSONA] (EMA) be ordered to pay him damages for the loss which he allegedly sustained following an accident at work. Facts, procedure and forms of order sought by the parties 2 The applicant, who entered the service of the EMA in London ([OSCURATO:PERSONA]) as a member of the temporary staff on 16 October 1996, sustained an accident at work on 17 March 2005, following which he went on sick leave. 3 The applicant’s contract with the EMA expired on 15 October 2006 and the EMA decided not to renew it. 4 The applicant received a payment of EUR 60 000 under the accident insurance scheme provided for in [OSCURATO:PERSONA] 73 of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’) to compensate for the loss sustained as a result of the accident at work. 5 Being of the opinion that the EMA was responsible, under the general law, for the accident at work which he had sustained and that the benefits under the staff insurance scheme had not fully compensated for his loss, the applicant brought an action before the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] seeking that the EMA be ordered to pay him supplementary compensation. 6 By a document lodged at the Registry of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 7 June 2010, the EMA raised an objection of inadmissibility under [OSCURATO:PERSONA] 114(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 7 As the applicant was late in submitting his observations on that objection of inadmissibility in accordance with [OSCURATO:PERSONA] 43(6) of the Rules of Procedure of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], those observations were not placed on the case-file. 8 By order of 20 January 2011 in [OSCURATO:PERSONA]136/10 M v EMA , the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], finding that the action fell within the jurisdiction of the [OSCURATO:PERSONA], referred the action to the [OSCURATO:PERSONA] and reserved costs. As a result of that referral, the [OSCURATO:PERSONA] has before it the claims initially made before the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 9 The applicant claims that the [OSCURATO:PERSONA] should: –        order the EMA to pay him damages, in an amount which the [OSCURATO:PERSONA] may rule to be appropriate, in compensation for the loss sustained as a result of the accident at work on 17 March 2005; –        order the EMA to pay him interest on the amount due at a rate equivalent to that applied pursuant to section 35A of the [OSCURATO:PERSONA] 1981 or such other sum as the [OSCURATO:PERSONA] may rule to be appropriate; –        order the EMA to pay the costs; –        order such additional measures as the [OSCURATO:PERSONA] may consider to be appropriate. 10 The EMA contends that the [OSCURATO:PERSONA] should: –        dismiss the action as manifestly inadmissible; –        order the applicant to pay the costs. Law 11 [OSCURATO:PERSONA] 76 of the Rules of Procedure, where an action is, in whole or in part, manifestly inadmissible, the [OSCURATO:PERSONA] may, without taking further steps in the proceedings, give a decision by way of reasoned order. 12 Furthermore, although the EMA raised an objection of inadmissibility by way of a separate document, the [OSCURATO:PERSONA] remains at liberty, if the inadmissibility of the action appears to it manifest, to adopt an order on the basis of [OSCURATO:PERSONA] 76 of the Rules of Procedure (order of 25 November 2009 in [OSCURATO:PERSONA]5/09 [OSCURATO:PERSONA] v Commission , paragraph 14). 13 In the present case, the [OSCURATO:PERSONA] considers that there is sufficient information before it and has decided, pursuant to [OSCURATO:PERSONA] 76 of the Rules of Procedure, to give a decision without taking further steps in the proceedings. 14 It is established that a staff member who suffers an accident is entitled to seek from the administration additional compensation where he or she considers that the administration is responsible for the accident under general law and that the staff insurance scheme established by [OSCURATO:PERSONA] 73 of the [OSCURATO:PERSONA] does not allow for appropriate compensation (see, for example, judgment of 8 October 1986 in [OSCURATO:PERSONA] 169/83 and 136/84 Leussink v Commission , paragraph 13). However, in such a case, the administrative procedure which the staff member is required to follow in order to obtain such additional compensation must commence with the submission of a request within the meaning of [OSCURATO:PERSONA] 90(1) of the [OSCURATO:PERSONA] seeking to obtain additional compensation, and must be followed, where necessary, by an administrative complaint directed against the decision rejecting the request. 15 In the present case, although the applicant, who claims that the accident at work which he sustained was the result of the alleged breach by the EMA of its obligation to adopt measures to ensure the health and safety of workers, requests the [OSCURATO:PERSONA] to order the EMA to pay him compensation over and above that which he obtained on the basis of [OSCURATO:PERSONA] 73 of the [OSCURATO:PERSONA], the documents in the case-file disclose that the applicant did not submit any request to the EMA seeking such supplementary compensation. 16 Since the two-stage pre-litigation procedure laid down in [OSCURATO:PERSONA] 90 of the [OSCURATO:PERSONA] was not complied with, the action must be dismissed as manifestly inadmissible. Costs 17 [OSCURATO:PERSONA] 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. [OSCURATO:PERSONA] 87(2), the [OSCURATO:PERSONA] may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he or she is not to be ordered to pay any. 18 It follows from the grounds of the present order that the applicant is the unsuccessful party. Furthermore, in its submissions the EMA has expressly claimed that the applicant should be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of [OSCURATO:PERSONA] 87(2) of the Rules of Procedure, the applicant must therefore be ordered to pay the EMA’s costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed as manifestly inadmissible. 2. M shall bear all the costs. Luxembourg, 28 September 2011. W. Hakenberg S. [OSCURATO:PERSONA] * Language of the case: English.