21.3.2009

Official Journal of the European Union

C 69/51

—

(Case T-32/09 P)

(2009/C 69/111)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

—In every case

(A.1)set aside in its entirety and without exception the order under appeal;

(A.2)declare the action at first instance to be admissible in full.

—As a primary remedy:

(B.1)uphold in their entirety and without exception the appellant's pleas in law set out in the application at first instance;

(B.2)order the respondent to pay the appellant's costs relating to this appeal and to the proceedings at first instance;

—or, in the alternative:

(B.3)refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

This appeal is directed against the order of the Civil Service Tribunal of 4 November 2008 in Case F-18/07 Marcuccio v Commission, which declared the appellant's action to be manifestly inadmissible.

In support of the forms of order sought by him, the appellant raises the following pleas in law:

—Complete failure to state adequate reasons as regards the classification of the note of 11 October 2005 referred to in paragraph 3 of the order under appeal as an application made under Article 90 of the Staff Regulations, with the result that, in the case at issue, the provisions of Article 90 of the Staff Regulations were applied.

—Complete failure to state adequate reasons as regard the statements concerning the date on which the note of 11 October 2005 reached the respondent and the date on which the contested decision took effect.

—Unlawful findings as regards the alleged manifest inadmissibility of the action at first instance in its entirety.

Complete failure to state adequate reasons and a failure to make preliminary enquiries as regards the date on which the defence was lodged and a procedural error in that no account was taken of the requirement not to have regard to the arguments contained in the defence in so far as made out of time.

—Infringement of the rule that there should be a fair hearing, as laid down in Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union.

—