7.2.2009

EN

Official Journal of the European Union

C 32/19

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(Case C-513/08 P)

(2009/C 32/31)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: G. Cipressa, avvocato)

Other party to the proceedings: Commission of the European Communities

Form of order sought

(1.a)Annul the order under appeal in its entirety;

(1.b)Declare the original action to be fully admissible;

and in addition

—2/A as a primary remedy: (2/A.1) annul the contested decision; (2/A.2) annul, in so far as necessary, calculation No 58; (2/A.3) annul, to the extent necessary, the decision to reject the complaint in full; (2/A.4) order the defendant to pay to the appellant, on an interim basis, the sum of EUR 324.09 or such higher or lower amount as the Court may deem to be just and equitable; (2A/.5) order the defendant, in so far as necessary, to pay to the appellant, in accordance with the applicable rules, the sum which is due to him but remains unpaid in respect of the cost of his medical examination of 28 September 2005; (2/A.6) order the defendant to pay to the appellant default interest on the amounts referred to at 2/A.4 and 2/A.5, for the period from the date on which they became due until the date of actual payment, to be determined in accordance with the applicable rules: (2/A.7) order the defendant to pay to the appellant all the costs and expenses of the proceedings;

—2/B. in the alternative, to refer the case back to the Court of First Instance for a fresh decision.

d1e121-19-2Pleas in law and main arguments

1.Distortion and misrepresentation of the facts and the statements of the appellant in his written pleadings, arising also from the material inaccuracy of the findings of the Court of First Instance (in particular, paragraphs 36, 38, 39 and 41 of the order under appeal).

2.Misinterpretation and misapplication of the concept of a challengeable act, and, in addition, confusion, irrationality, illogicality, infringement of Article 231 of the EC Treaty and failure to have regard to the case-law relating to the effects of the annulment by the Community judicature of a decision issued by a Community institution, infringement of the principle of res judicata and infringement of the principle of the separation of powers (in particular, paragraphs 39 and 41 of the order under appeal).

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