7.2.2009

EN

Official Journal of the European Union

C 32/21

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(Case C-528/08 P)

(2009/C 32/36)

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, the statement of reimbursement of 18 July 2005; (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, by way of reimbursement of the additional sum needed to make up 100 %, with a view to obtaining repayment in full, of the medical expenses at issue, or by way of compensation for the damage arising as a result of the defendant's unlawful conduct, to pay to the appellant the sum of EUR 89,56 or such higher or lower amount as the Court may deem to be just and equitable; (2A/.5) order the defendant to pay to the appellant default interest on the amount referred to at 2/A.4 for the period from the date on which it became due until the date of actual payment, to be determined in accordance with the applicable rules; (2/A.6) 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.

Pleas in law and main arguments

1.Distortion and misrepresentation of the facts and the statements of the appellant in his pleadings, arising also from the material inaccuracy of the findings of the Court of First Instance (in particular, paragraphs 29, 31, 34 and 38 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 32 and 34 of the order under appeal).

3.Misinterpretation and misapplication of Articles 90 and 91 of the Statute and of the concept of decisions issued by a Community institution.

4.Infringement of the legally-binding principle of natural justice and errors of procedure so serious as to result in the rights of the appellant being infringed, in particular the rights of the defence and the right to a just and equitable hearing.

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