JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

4 September 2008

Case T-413/06 P

Claudia Gualtieri

v

Commission of the European Communities

(Appeal – Seconded national expert – Order for referral – Decision against which an appeal may be lodged – Inadmissibility)

Appeal: brought against the order of the Civil Service Tribunal (First Chamber) of 9 October 2006 in Case F‑53/06 Gualtieri v Commission [2006] ECR-SC I‑A‑1‑107 and II‑A‑1‑399, and seeking annulment of that order.

Held: The appeal is dismissed. Ms Claudia Gualtieri is to bear her own costs and pay the costs incurred by the Commission in the appeal proceedings.

Summary

Appeals – Purpose – Annulment of an order of the Civil Service Tribunal declining jurisdiction in favour of the Court of Justice or the Court of First Instance – Inadmissibility

(Statute of the Court of Justice, Annex I, Arts 8(2) and 9, first and second paras)

An order by which the Civil Service Tribunal, considering itself not to have jurisdiction, refers an action to the Court of Justice or the Court of First Instance in accordance with the procedure provided for in Article 8(2) of Annex I to the Statute of the Court of Justice does not constitute an act against which an appeal may be lodged, since the order does not satisfy the requirements laid down in the first and second paragraphs of Article 9 of Annex I to the Statute of the Court of Justice, which state that any party which has been unsuccessful, in whole or in part, in its submissions may bring an appeal against final decisions of the Civil Service Tribunal and decisions of the Tribunal disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of jurisdiction or inadmissibility. Furthermore, such a referral is not such as to compromise the judicial protection of the parties before the Community judicature, which will, in any event, rule on all the issues raised by the action. Rather than leaving the steps to be taken after the declaration of lack of jurisdiction to the initiative of the parties, which will lodge an appeal if necessary, Article 8(2) provides for the case to be referred to the Community court regarded as having jurisdiction. Subsequently it is for the court to which the action has been referred to assess its own jurisdiction and, if appropriate, to refer the action back, in accordance with the special procedure for that purpose, to the court of first instance, which cannot then decline jurisdiction. That special mechanism settles questions relating to the division of jurisdiction between the courts making up the institution of the Court of Justice, although those questions may also, where appropriate, be the subject of an exchange of arguments between the parties before the Court of First Instance adjudicating following the referral.

(see paras 22-25, 27)