ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

22 May 2014(*)

(Article 32(1) of the Rules of Procedure — Adverse effect on the proper administration of justice — Exclusion from the proceedings of a party’s representative)

In Case F‑58/13,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Luigi Marcuccio, former official of the European Commission, residing in Tricase (Italy), represented by Mr A, lawyer,

applicant,

v

European Commission, represented by C. Berardis-Kayser and G. Gattinara, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

composed of M.I. Rofes i Pujol, President, K. Bradley (Rapporteur) and J. Svenningsen, Judges,

Registrar: W. Hakenberg,

makes the following

Order

1        Pursuant to Article 32(1) of the Rules of Procedure, if the Tribunal considers inter alia that ‘the conduct of a party’s representative towards the Tribunal … is incompatible with the dignity of the Tribunal or with the requirements of the proper administration of justice’, it so informs the person concerned. On the same grounds, it ‘may at any time, having heard the person concerned, exclude that person from the proceedings by order. That order shall have immediate effect.’

 Prior legal proceedings brought by the applicant

2        As a preliminary point, it should be noted that since 2002 the applicant, represented in the present proceedings by Mr A., has brought a particularly high number of actions against his former employer, the European Commission, before the various Courts of the European Union, both at first instance and on appeal. To date the total number of actions brought by the applicant exceeds 190.

3        The vast majority of those actions have been dismissed as manifestly unfounded or manifestly inadmissible. The Court of Justice itself, in three orders of 28 February 2013 in Commission v Marcuccio (C‑432/08 P-DEP, C‑513/08 P‑DEP and C‑528/08 P-DEP) noted ‘the particularly high number and systematic nature of the actions brought by Mr Marcuccio before the various Courts of the European Union’. In an order of 21 October 2013, Marcuccio v Commission, (T‑226/13 P, paragraph 42), the General Court highlighted ‘the applicant’s approach of automatically and indiscriminately choosing litigation’ in that he relies ‘without any discernment’ on pleas and arguments that the EU courts must reject ‘on the basis of settled case-law’ as being manifestly unfounded or manifestly inadmissible. The General Court also held, in paragraph 44 of that order, that ‘the applicant’s conduct unnecessarily burdens the General Court which, to a disproportionate extent, undermines the proper administration of justice’.

4        Very concerned by that situation, by letter sent by fax on 7 December 2012, the original of which was received by the person concerned on 4 January 2013, the Tribunal drew the attention of the applicant’s then representative to the ‘role of a lawyer, conferred by law, as an officer of the court, whose duty is to represent the applicant in accordance with the applicable Rules of Procedure’ and which ‘is in the first place specifically to avoid bringing repetitive actions which, in many cases, must subsequently be rejected as manifestly inadmissible or manifestly unfounded.’ In the same letter, the Tribunal also stated that doubts remain as to whether all the actions brought by Mr Marcuccio had been drafted by a lawyer.

5        In the absence of a reply from the applicant’s representative or any response at all to that letter, and having regard to the fact that the litigation continued to grow, the General Court was obliged, by letter of 16 April 2013, to bring the matter to the attention of the President of the Bar Association of Lecce (Italy), of which the applicant’s representative was a member, to complain about the latter’s conduct and to call on the President of the Bar Association to take the necessary measures in order to remedy the situation, which is particularly detrimental to the functioning of the Tribunal and the preparation of other cases. That letter also received no response.

6        Some time after that letter was sent, the applicant instructed Mr A to represent him. It is apparent that over a period of four months, between June and September 2013, Mr A brought the present action before the Tribunal on Mr Marcuccio’s behalf as well as four other actions (registered respectively under docket numbers F‑62/13, F‑65/13, F‑89/13 and F‑90/13) which actively contributed to the pursuit by the applicant of the conduct criticised by the three component courts of the Court of Justice of the European Union.

7        Being of the opinion that the manner in which Mr A. performs his role as lawyer in the present case is incompatible with the requirements of the proper administration of justice in the light of the duties of dignity and propriety and those of counsel and advice which attach to his functions as an officer of the court and, in those circumstances, with a view to applying Article 32(1) of the Rules of Procedure, by letter of 4 December 2013 the Tribunal informed Mr A. of its intention to invoke that provision and requested him to submit his observations so as to respect his right to be heard.

8        By letter of 23 December 2013, Mr A. denied having breached his duties of dignity and propriety in the present case, arguing that the Tribunal’s position was based only on ‘insinuations’ unsupported by objective and relevant evidence and therefore constituted nothing more than a ‘misunderstanding and a perfunctory assessment of the facts of the case’ and could be understood as ‘a thinly disguised attempt to intimidate’ ‘advisers’ of the applicant. According to Mr A., the ‘threats’ which appear in the letter of 4 December 2013 are ‘the fruit’ not of a ‘calm and objective evaluation of the facts and circumstances directly imputable to [his] professional activity’ but of a sort of ‘preventive’ (and negative) judgement on the exercise by the applicant ‘of his rights and of their justiciability’.

 Adverse effect on the proper administration of justice

9        Mr A. claims that ‘out of all of 192 actions brought by [the applicant] since 2002, only five … bore his signature’ and that he had ‘nothing to do’ with the other actions. The applicant requested him to deal with the five actions at issue for reasons ‘unknown’ to him and it was not for him to ‘judge’. It was thus by way of the letter from the Tribunal of 4 December 2013 that Mr A. ‘learned of the quantity’ of litigation brought by the applicant against the Commission.

10      Mr A. then took the view that the statement that the acts submitted bearing his signature might not have been drafted by him is ‘seriously defamatory’ and ‘unsound’ as well as being ‘ill considered’ and ‘without foundation’.

11      Finally, Mr A. considers that the ‘remarks’ made by the Tribunal as regards his ‘duties are so vague and general’ that they prevent him from ‘defending himself in any manner whatsoever’.

12      It must, however, be held that Mr A.’s observations in no way call into question the fact that the applicant’s propensity to opt automatically and indiscriminately for litigation is such as to adversely affect the proper administration of justice, nor the fact that in the present case his own conduct directly aids in perpetuating the conduct of the applicant complained of.

13      In his observations in reply to the letter of 4 December 2013, Mr A mentions only the fact that, after replacing the applicant’s previous representative, which happened shortly after the Tribunal contacted the Lecce Bar Association, he brought only five actions in his name before the Tribunal, while claiming no knowledge of the other cases.

14      Such a fact cannot justify his conduct with regard to the proper administration of justice.

15      First of all, the five actions in question were brought in a period of just four months between June and September 2013.

16      Second, Mr A. admits to have assisted in the representation of Mr Marcuccio with another lawyer in Case F‑56/09. The judgement which brought that case to an end mentioned a certain number of other actions already brought by the person concerned and draws attention to the fact that the number of heads of claim was rather high and that he had submitted excessive claims for damages. It must also be held that, even if it is true that Mr A. represents his client in the present case on the basis of his registration with the Bar of Madrid (Spain), indicating in the letter that he was a member of the Bar of Milan (Italy) ‘incidentally’, the fact remains that, when the originating application was lodged, his domicile, for the service of procedural documents, was Galatone (Italy), a town situated in the area covered by the Lecce Bar Association, at the same address as that of the applicant’s previous lawyer with whom he also shares the same telephone and fax numbers. In those circumstances, Mr A.’s statement that he learned of the quantity of litigation generated by Mr Marcuccio only from the letter from the Tribunal Registry of 4 December 2013 clearly lacks credibility.

17      If it were accepted that Mr A. was unable to ascertain the quantity of previous litigation between his client and the Commission, that would lead to a finding that he has neglected his professional obligations by failing to inquire into the background to the actions he brought on behalf of Mr Marcuccio, even though the judgements given in his client’s many actions were easily accessible, under his name, on the Court website in the section entitled ‘Case-law’. In reality, a reading of the summary of facts in the application by itself clearly shows that Mr A. could not be unaware of his client’s history of litigation before the Courts of the European Union.

18      The fact that the present action, signed by Mr A., is based on facts almost identical to those which gave rise to the action in Case F‑67/12 Marcuccio v Commission, and is based on the same pleas, is particularly symptomatic of the applicant’s propensity to resort to legal proceedings automatically and indiscriminately. The action in Case F‑67/12 was dismissed as being manifestly unfounded by order of 6 February 2013, thus well before the present action was brought. The appeal subsequently brought against that order was dismissed by order of 21 October 2013, Marcuccio v Commission, as being in part manifestly inadmissible and in part manifestly unfounded, which ordered the applicant to pay EUR 2000 pursuant to Article 90 of the Rules of Procedure of the General Court, since the appeal was held to be abusive.

19      Taking account of the foregoing, it is sufficiently established that, by his conduct, Mr A. has heedlessly contributed in the present case to the applicant’s vexatious conduct, which, taking account of the particularly high number of actions brought by the latter before the Courts of the European Union — of which a lawyer exercising ordinary care must have been aware — has proved to be especially prejudicial to the proper administration of justice.

20      Mr A.’s letter of 23 December 2013 also gives rise to the following remarks. In that letter, he states that ‘the findings which cast doubt on the fact that the acts bearing [his] signature were drafted by [him] are seriously defamatory as well as being ill considered and unfounded’ and that ‘it is unusual for the [Tribunal] to make such serious and reckless assertions without verification or [any] evidence to support such a point of view’.

21      In that connection, the Tribunal finds that:

–        paragraphs 14, 17, 24, 25, 28, 32 to 38 and 42 of the application in the present proceedings are identical word for word to paragraphs 4, 7, 14, 15, 18, 26 to 32 and 36 respectively of the application lodged in Case F‑67/12 Marcuccio v Commission by the applicant’s previous lawyer;

–        with minor amendments, paragraphs 13, 16, 18, 20, 22, 26 (second half), 27 (first line), 29, 30, 31, 39 (with the addition of four lines), 40 (first sentence) and 41 (with additions) are almost identical to paragraphs 3, 6 (first sentence and subparagraph (c)), 8, 9, 13, 16, 17, 19 (first four lines), 24, 25, 33, 34 and 35 respectively of the application in Case F‑67/12.

22      It follows that, with the exception of the addition or deletion of a few sentences, all the legal argument in support of the application (paragraphs 26 to 42) in the present case, and a substantial part of the statement of facts (paragraphs 1 to 25) are identical or almost identical to the legal and factual submissions in an application previously lodged in an action in which the applicant was not represented by Mr A. In those circumstances it seems more likely that Mr A., contrary to his assertions, did not draft the application in the present case.

23      In his letter, Mr A. also states that ‘from the findings [of the Tribunal] there appears to be … a kind of prejudging of the outcome of [the cases pending before the Tribunal], a judgement which in fact seems to signal the rejection of those actions, without any relevant assessment of the merits, in flagrant violation of the principles common to the constitutional traditions of the Member States’.

24      It is sufficient to hold, in that regard, that Mr A.’s statement has no basis in fact. It is true that the exclusion of a party’s legal representative, under Article 32(1) of the Rules of Procedure, requires that party to change legal representative, but it has no effect on the assessment to be made by the Tribunal of the merits of the action, which remains before it unless the applicant withdraws it.

25      In those circumstances, the Tribunal considers, in the light of the content of the application brought in the present case and its context, that it is appropriate in this case to apply Article 32(1) of the Rules of Procedure by excluding Mr A. from the proceedings and by sending a copy of the present order to the competent Spanish and Italian authorities to which the person concerned belongs.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (Second Chamber)

hereby orders:

1.      Mr A. is excluded from the proceedings in accordance with Article 32(1) of the Rules of Procedure.

2.      A copy of the present order shall be sent to the competent Spanish and Italian authorities to which Mr A belongs.

Luxembourg, 22 May 2014.

*Language of the case : Italian