Judgment;Information — ECLI:EU:T:2020:281
Date: 2020-06-25
Language of the case: English
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - unfounded;Staff cases - successful

summary, it is possible to deduce from the application that the applicant raises, in essence, two pleas in law, the first alleging a failure to take into account in the calculation of the severance grant the net present value of the compensatory measures he is entitled to until the normal age of retirement, as well as his entitlement to a bonus, and, the second alleging errors as a result of taking unjustified absences into account in the calculation of that severance grant. The first plea in law, alleging an erroneous failure to take into account the net present value of the compensatory measures to which the applicant is entitled up to the normal retirement age, and his entitlement to the bonus 35 The applicant claims that the net present value of the compensatory measures he is entitled to until the normal age of retirement, namely a 3% net contribution of the annual salary into the OSPS, and his right to the bonus, were not taken into account by the EIB in the calculation of the EUR 120 078.82 figure. 36 The EIB disputes the applicant’s arguments. 37 Under Article 76(d) of the Rules of Procedure, the application initiating proceedings must contain a brief statement of the pleas in law on which the application is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if appropriate, without other supporting information. The application must accordingly specify the nature of the grounds on which it is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. 38 It must be noted that the applicant’s application does not contain more information concerning his claims relating to the net present value of the compensatory measures he is entitled to, on the one hand, and to his alleged right to a bonus, on the other hand. The reply and, moreover, the applicant’s reply to the question on that subject put by the Court also do not contain such information. 39 In view of those circumstances, the applicant’s first plea in law must be rejected as inadmissible. The second plea in law, alleging errors in the taking into account of unjustified absences for the purpose of calculating the severance grant 40 The applicant claims that the EIB was not entitled to set off 82.5 days of alleged unjustified absences against his annual leave entitlement and to deduct an amount corresponding to 91.5 days of leave from the final sum, in so far as, first, he was not required to work 20 hours per week, secondly, he was exempted from registering his hours of work, thirdly, there is no legal basis allowing the EIB to set off alleged unjustified absences with his leave rights or to deduct sums due upon departure and, fourthly, the EIB never drew his attention to the alleged unjustified absences. – The work regime to which the applicant was subject and the taking into consideration, by the EIB, of that scheme 41 First of all, the parties are in dispute concerning the work regime applicable to the period between November 2012 and May 2016. By contrast, the dispute does not relate to the regime applicable from spring 2012 until November 2012, as described in paragraph 3 above, or to the fact that the applicant failed to comply with the regime agreed for that period. 42 With regard to the contested period, the parties disagree as to whether the applicant was required to work 20 hours per week. 43 Thus, the applicant submits that no absence was unjustified since he had agreed with the EIB that he was entitled to work fewer than 20 hours per week. 44 The EIB, while pointing out that the applicant had accepted the 50% work regime, argues that he was required to work 20 hours per week, but on a more limited schedule for an initial period, without, however, specifying the duration of that initial period. 45 The question is therefore how many hours per week the applicant was required to work during the period from November 2012 to May 2016. 46 In that regard, it should be noted that it is apparent from the documents in the file that Dr B, in his opinion of 28 September 2012, stated that the applicant ‘currently worked four hours two days per week, alternating between one week in the office of the EIB and one week of teleworking’ and suggested a temporary partial disability (50%), with, however, a progressive increase of the workload. That opinion was followed and confirmed by the EIB in the letter of 26 October 2012 sent to the applicant, which informed him that the return-to-work programme would be established by Dr A. Subsequently, the practical arrangements for that return to work were described by Dr A in the note of 30 November 2012. 47 Moreover, it should be noted that, it its defence, the EIB confirmed that the letter of 26 October 2012 states that the applicant’s return to work was to be subject to the supervision of Dr A and that the latter expressed his agreement to the regime established by Dr B, namely 20 hours per week, with, however, adjustments during the first weeks. 48 The EIB moreover refers, on several occasions, to the existence of that initial period during which the applicant was not required to work 20 hours per week. 49 Therefore, in paragraphs 45 and 46 of its defence, the EIB states, referring to the annexes consisting of time sheets, that the number of hours which should be worked per week was clearly defined, namely 20 hours, with, however, an initial period of fewer hours and that, from 1 April 2013, the applicant was supposed to work 20 hours per week, under the regime set out in the opinion of 28 September 2012, as notified to the applicant by the letter of 26 October 2012. That regime was subsequently amended with the agreement of Dr A. 50 Moreover, in its rejoinder, the EIB states that ‘there is no question of the Applicant having been somehow “authorised” to work less than 50% (with the exception of the initial phasing-in period described in [paragraph 14 of the defence])’; that ‘it is not disputed that it was agreed that there should be a short phasing-in period’ (paragraph 13); that ‘[that] document [(namely, the staff report for 2012)] dates precisely from the time of the agreed phasing-in process, when there was a temporary and decreasing derogation from the 20 hours per week requirement’ (paragraph 15); that ‘the only derogation was the short phasing-in period agreed with Dr [A] …, which the Applicant does not contest’ (paragraph 31); and that ‘it was only for an initial phasing-in period in late 2012 and early 2013’ (paragraph 34). 51 It is therefore clear from the file that the work regime to which the applicant was subject during the contested period from November 2012 to 2016 can be summarised as follows: – from 1 November 2012 to 29 November 2012: 8 hours per week, alternating one week in the office and one week of teleworking; – from 30 November 2012 to 14 February 2013: 10 hours per week, of which 6 hours in the office and 4 hours of teleworking; – from 15 February 2013 to 31 March 2013: 14 hours per week, of which 6 hours in the office and 8 hours of teleworking; – from 1 April 2013: 20 hours per week, of which two times 6 hours in the office and 8 hours of teleworking. 52 That conclusion cannot usefully be called into question by the applicant, who merely argues that he was not required to work 20 hours per week, without his allegations being supported by any evidence. 53 That conclusion also cannot be called into question by the EIB’s replies to the Court’s questions. 54 In its reply, the EIB now alleges that the note of 30 November 2012 in fact only contained advice without binding legal effect, which could not annul, even temporarily, the decision contained in the letter of 26 October 2012. 55 Those arguments of the EIB contradict the statements in the defence and the rejoinder, as set out in paragraphs 49 and 50 of the present judgment, according to which the phasing-in period was agreed between the parties and that it corresponded to a temporary and decreasing derogation from the requirement to work 20 hours per week. 56 Those statements made by the EIB amount to an admission which should benefit the applicant, since they are clear from the pleadings and, moreover, correspond with the annexes submitted by the EIB, namely the opinion of 28 September, the letter of 26 October and the note of 30 November 2012 (see, to that effect, judgment of 30 September 2009, Sison v Council, T‑341/07, EU:T:2009:372, paragraph 103). 57 Thus, the letter of 26 October 2012 itself refers to a ‘return-to-work programme … put in place by Dr A, who … will send [the applicant] an appointment in the next few days’, thus referring back to Dr A the task of laying down the specific details of the work regime to which the applicant would be subject. 58 Moreover, that gradual increase in the applicant’s workload is in line with the proposals made in the opinion of 28 September 2012 (see paragraph 4 above). 59 It follows that the EIB’s argument put forward for the first time in its reply to the questions put by the Court, contrary to its admission of the existence of a reintegration period agreed with the applicant, must be rejected. 60 In view of the above, it should be noted that the work regime as described in paragraph 51 above was applicable. 61 Next, that same regime should be compared with the register of working hours submitted by the EIB as annexes to its defence, in order to ascertain whether that regime was taken into account when calculating the hours worked by the applicant. 62 It must be stated that that is not the case here. 63 In the statement relating to November 2012, it is indicated that the applicant should work 20 hours per week, whilst it is apparent from the opinion of 28 September 2012 that, during that month, the applicant was subject to a work regime of 8 hours per week. It follows that the calculations made for that month are incorrect. 64 Moreover, in the time sheets relating to December 2012 and to January, February and March 2013, it is stated that the applicant should work 20 hours per week, while, as stated in paragraph 51 above, the parties had agreed that the applicant was required to work 10 hours per week during the period from 30 November 2012 until 14 February 2013, 14 hours per week during the period from 15 February until 31 March 2013 and, only after that date, 20 hours per week. It follows therefrom that the calculations made by the EIB concerning those four months are also incorrect. 65 As regards the rest of the period concerned by the unjustified absences, the applicant provides no evidence in support of his allegation that he was not required to work 20 hours per week. 66 It follows that the EIB committed an error in the calculation of the number of 1 390.39 hours of absence and, consequently, in taking into account a number of 174 overdrawn days of leave. It also committed an error by deducting the amount of EUR 28 600.75, which corresponds to 91.5 overdrawn days of leave, from the applicant’s severance grant and by setting off 82.5 overdrawn days of leave against the applicant’s remaining leave. 67 It follows from all the foregoing that the present plea in law must be upheld and the decision of 27 September 2017 annulled on the ground that it calculates the applicant’s unjustified absences from 1 November 2012 until 31 March 2013 on the basis of a weekly work regime of 20 hours. – The applicant’s obligation to record his working hours 68 The applicant claims that he was exempt from the obligation to register his hours of work. According to him, his managers and the EIB doctor were in agreement with him that clocking in amounted to excessive pressure on him and that that doctor indicated that the management had no objection to him ceasing to register his hours of work in the time management system. 69 The EIB disputes the applicant’s arguments. 70 In that regard, it should be noted that the applicant does not refute the fact that every member of EIB staff is under an obligation to record his or her working hours. He claims only that he was exempt from that obligation. 71 It must be noted that the applicant does not provide proof of his allegations. 72 Thus, the applicant alleges that he was informed by the doctor that there was no objection to him ceasing to clock in or to work in accordance with a regime of 20 hours per week, without either indicating which doctor he was referring to or proving evidence of that alleged declaration. 73 As regards the applicant’s argument relating to the mid-term review established in September 2013, which stated that he was advised ‘to clock in more regularly in his own interest; not for the sake of control, but just to prove himself that he has already been capable to return to a regular work regime’, it must be rejected, in so far as the comments made by a line manager during a mid-term interview cannot eliminate the administrative obligations imposed on a staff member. 74 Moreover, on the assumption that the applicant’s argument must be understood as invoking the principle of the protection of legitimate expectations, it should be noted that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations presupposes the fulfilment of three conditions. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU authorities. Secondly, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Thirdly, the assurances given must comply with the applicable rules (see judgment of 12 September 2018, PH v Commission, T‑613/16, not published, EU:T:2018:529, paragraph 65 and the case-law cited). 75 Since the applicant has not adduced evidence of any precise and unconditional assurance which he received from the administration, in this case the EIB, the applicant’s argument must be rejected. 76 In view of those circumstances, the applicant’s complaint concerning his obligation to record his working hours must be rejected. – The alleged lack of a legal basis for offsetting unjustified absences against leave entitlements or deducting them from the sums due upon departure 77 The applicant claims that he was not informed that a staff member of the EIB could be held financially responsible in case of failed attempt for a medical reintegration. He adds that the staff rules do not authorise a set-off or deduction of alleged unjustified absences with the leave entitlements or the sums due upon departure. 78 The EIB contends, first, that there is an explicit legal basis for correcting unjustified absences, in particular in Article 3.4 of Annex X to the administrative provisions and, secondly, that all the information relating to that deduction is published on the EIB intranet. Moreover, the latter considers that the matter could be regarded as relating to overpayments, for which Article 16.3 of the administrative provisions expressly provides for the possibility of a set-off. 79 In that regard, it must be noted that Article 3.4 of Annex X to the administrative provisions provides for the possibility that any absence considered to be unjustified be deducted from the annual leave of the staff member concerned and that, if none of his or her annual leave is left, the staff member concerned loses, where appropriate, the benefit of his or her remuneration for the corresponding period. Furthermore, it is apparent from the material in the case file that, since 2013, information concerning the deduction of leave rights, in the event of a negative balance of annual leave, was published on the EIB intranet. 80 It follows that the applicant’s complaint must be rejected, without there being any need to consider whether Article 16.3 of the administrative provisions also applies. – The fact that the applicant has never been accused of unjustified absences 81 The applicant claims that he has never been accused of unjustified absences and that there has never been any warning letter or dismissal or even a discussion with his line manager in that respect. According to the applicant, none of his line managers contested his working hours or his clocking in over the last five years. 82 It should be noted that, under Article 76(d) of the Rules of Procedure, the application initiating proceedings must contain a brief statement of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if appropriate, without other supporting information. The application must, accordingly, specify the nature of the grounds on which the action is based, which means that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (see, to that effect, judgment of 20 November 2018, Barata v Parliament, T‑854/16, not published, EU:T:2018:809, paragraph 24). 83 In the present case, it should be noted that neither the application nor even the reply indicates the legal basis of the applicant’s complaint. Moreover, it must be noted that, although, during the proceedings, the applicant was able to state his views on that subject, the reply does not respond either to the EIB’s contentions relating to the lack of clarity of the complaint or to the different interpretations suggested by the EIB in that regard, whether concerning an infringement of the reasonable time limit, of the principle of legitimate expectations or an allegation of contributory negligence. 84 Accordingly, the applicant’s argument that he was never accused of unjustified absences must be rejected as inadmissible for lack of clarity and precision. The claim for damages 85 The applicant considers, in essence, that the EIB, by the errors alleged in the context of his two heads of claim for annulment, caused him harm and an additional moral damage, so that the administration incurs non-contractual liability vis-à-vis him and compensation must be granted to him by the EIB. 86 Accordingly, the applicant requests that the EIB be ordered to pay him, in that respect: – EUR 30 000 in arrears of remuneration for 42 days of annual leave and 40.5 days accumulated in the time-savings account, namely a total of 82.5 days of leave; – EUR 30 000 illegally deducted from the sums due upon his departure; – EUR 30 000 illegally deducted from his leave entitlement; – EUR 50 000, that is to say, a contribution of 3% of the annual salary to the OSPS until the normal retirement age; – EUR 35 000 in respect of his entitlement to the bonus; – EUR 15 000 in damages for the moral damage he has suffered; – a provisional amount of EUR 15 000 in legal costs incurred by him in the present proceedings; – the costs of proceedings and all the costs. 87 The EIB considers that there is no fault for which the applicant should be compensated and that the applicant has not met the burden of proof concerning the cumulative conditions that must be satisfied for such a claim. It considers moreover that the claims are inadmissible in so far as they lack clarity and precision. 88 In that regard, it should, in the first place, be noted that, by the first head of claim for compensation, the applicant claims compensation of EUR 30 000 for unpaid salary for 82.5 leave entitlements which were used to set off unjustified absences, that, by his second head of claim for compensation, he claims compensation for the EUR 30 000 which were illegally deducted from the sums due upon his departure, and that, by the third head of claim for compensation, the applicant claims compensation of EUR 30 000 which were illegally deducted from his leave entitlements. 89 Under the first paragraph of Article 266 TFEU, the institution, body, office or entity whose act has been declared void is required to take the necessary measures to comply with the judgment. 90 By those claims, the applicant seeks an order that the EIB pay him an amount that would be owed to him on the basis of the decision that the EIB will be required to take in compliance with the present judgment ordering annulment. Such a claim is therefore premature and cannot be accepted (see, to that effect, judgments of 14 September 2017, Bodson and Others v EIB, T‑504/16 and T‑505/16, EU:T:2017:603, paragraph 76, and of 17 November 2017, Teeäär v ECB, T‑555/16, not published, EU:T:2017:817, paragraph 59). 91 In the second place, by the fourth head of claim for compensation, the applicant seeks compensation amounting to EUR 50 000 in relation to the contribution of 3% of his annual salary into the OPSP until the normal retirement age, whereas, by the fifth head of claim for compensation, he seeks compensation amounting to EUR 35 000 in relation to his right to the bonus. 92 It should be noted that in paragraphs 37 to 39 above, the applicant’s complaint relating to the contribution of 3% of his annual salary into the OPSP and to his alleged right to a bonus did not fulfil the requirements of Article 76(d) of the Rules of Procedure, was rejected as inadmissible. It follows that it is necessary to reject the fourth and fifth heads of claim for compensation for the same reason. 93 In the third place, by the sixth head of claim for compensation, the applicant seeks EUR 15 000 by way of compensation for the moral damage he has suffered. 94 It should be noted that an application seeking compensation for damage allegedly caused by an EU institution must state the evidence from which the conduct alleged against the institution may be identified, the reasons why the applicant considers that a causal link exists between that conduct and the damage which he claims to have suffered, and the nature and extent of that damage (see judgment of 22 November 2018, Brahma v Court of Justice of the European Union, T‑603/16, EU:T:2018:820, paragraph 219 (not published) and the case-law cited). 95 It must be noted that the applicant did not provide any details as to the sixth head of the claim for compensation. 96 The applicant does not provide any explanation in relation to the latter or the reason why he claims EUR 15 000 in damages. The general and unsubstantiated allegations in the reply, according to which the applicant was the victim of harassment, bullying, degradation and humiliation at the EIB, cannot suffice for that purpose. 97 Moreover, for the sake of completeness, as regards the claim for compensation for moral damage, it should be noted that, according to the settled case-law of the Court of Justice and of the General Court, the annulment of an administrative act challenged by an official in itself constitutes appropriate and, in principle, sufficient reparation for any moral damage which that official may have suffered and that the claim for damages is devoid of purpose (see judgment of 7 March 2019, L v Parliament, T‑59/17, EU:T:2019:140, paragraph 58 and the case-law cited). 98 It follows that the sixth head of claim for compensation must be rejected. 99 In the fourth place, by the seventh and eighth heads of claim for compensation, the applicant requests, in essence, the Court to order the EIB, first, to pay a provisional amount of EUR 15 000 in legal costs and, secondly, to pay him the costs and any other expenses. 100 Those last two heads of claim must be interpreted as an application for an order that the EIB pay the costs. 101 In the light of the above, claims for compensation must be dismissed in their entirety. Costs 102 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party. 103 In the present case, in the light of the circumstances of the case, the EIB must be ordered to pay, in addition to its own costs, half of the applicant’s costs. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls the decision of the European Investment Bank (EIB) of 27 September 2017; 2. Dismisses the action as to the remainder; 3. Orders ZS to pay half of his costs; 4. Orders the EIB to pay, in addition to its own costs, half of the costs of ZS. Kanninen Jaeger Stancu Delivered in open court in Luxembourg on 25 June 2020. E. Coulon Registrar President * Language of the case: English i In accordance with the rules on the protection of personal data in the context of the judicial functions of the General Court, data which might identify the parties have, by decision of the Registrar, been removed from the public version of the judgment.