Judgment — ECLI:EU:T:2001:69
Date: 2001-02-23
Language of the case: Italian
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Assessment of the administration;Unlimited jurisdiction;Action brought by an official who has not been promoted;General;Termination of service;Right to a judicial remedy;Judicial review;European Investment Bank
Procedure: Staff cases - unfounded;Staff cases - successful

SUMMARY — JOINED CASES T-7/98 AND T-208/98 
non-pecuniary damage. The defendant is ordered to pay all 
the costs. The remainder of the application is dismissed. 
Summary 
1. Officials - Actions - Disputes between the European Investment Bank and its 
staff. - Time-limits for bringing proceedings - Requirement that action be brought 
within a reasonable time - Point from which time starts to run 
(EC Treaty, Art. 179 (now Art. 236 EC); Staff Regulations, Arts 90 and 91; Staff 
Regulations of the European Investment Bank, Art. 41) 
2. Officials - Actions - Disputes between the European Investment Bank and its 
staff - Conditions of admissibility - Prior initiation of an internal appeal 
procedure provided for by an administrative notice - Excluded - Optional nature 
of such a procedure 
(Staff Regulations, Arts 90 and 91; Staff Regulations of the European Investment 
Bank, Art. 41; Rules of Procedure of the European Investment Bank, Art. 29) 
3. Officials - Actions - Disputes between the European Investment Bank and its 
staff - Interest in bringing proceedings - Actions directed against performance 
appraisals 
4. Officials - Promotion - Discretion of the administration - Judicial review -
Limits - Servants of the European Investment Bank - Application by analogy of 
the Community case-law on Article 45 of the EC Staff Regulations 
(Staff Regulations, Art. 45; Staff Regulations of the European Investment Bank, Arts 
22 and 23) 
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DE NICOLA v EIB 
5. Officials - Promotion - Differences between an official and his immediate 
superior - Effect on the latter 's capacity to appraise the merits of the official 
6. Officials - Promotion - Refusal founded on the bringing of legal proceedings 
or the production in evidence of internal documents of the institution - Not 
permissible - Refusal founded on the production in evidence of improperly acquired 
confidential documents of the employer - Permissible - Limits - Assessment of 
the propriety of the acquisition of those documents 
7. Officials - Resignation — Requirements as to form - Burden of proof -
Effective date - Servants of the European Investment Bank 
(Staff Regulations of the European Investment Bank, Arts 13, 16 and 42) 
8. Officials - Resignation - Resignation provoked by mental harassment 
9. Officials - Resignation - Annulled on ground of defect in consent -
Consequences - Duties of the administration 
10. Officials - Actions - Unlimited jurisdiction - Disputes between the European 
Investment Bank and its servants - Application by analogy of Article 91(1) of the 
Staff Regulations of Officials 
(Staff Regulations, Art. 91(1); Staff Regulations of the European Investment Bank, 
Art. 41) 
1. The need to weigh the entitlement to effective protection by the courts, which is 
one of the general principles of Community law and implies that those subject to the 
courts' jurisdiction must have a sufficient period of time available to them to assess 
the lawfulness of the act adversely affecting them and if necessary prepare their 
case, against the need for legal certainty which requires that, after a certain time, 
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SUMMARY — JOINED CASES T-7/98 AND T-208/98 
measures taken by Community bodies become definitive requires that disputes 
between the European Investment Bank and its employees should be brought before 
the Community judicature within a reasonable period. 
In determining such a period, account must be taken, in particular, of the specific 
nature of staff disputes and the importance attaching, in that context, to the possible 
existence of a pre-litigation procedure. Although the Bank's employees are subject 
to specific regulations drawn up by the Bank, purely internal disputes between the 
Bank and its employees are comparable in nature to disputes between the 
Community institutions and their officials or other servants, which are covered by 
Articles 90 and 91 of the EC Staff Regulations and are also subject to judicial 
review under Article 179 of the Treaty (now Article 236 EC). It is therefore 
necessary to be guided by the conditions relating to the period for lodging an 
appeal, laid down by Articles 90 and 91 of the EC Staff Regulations, while taking 
account of the particular context of the Staff Regulations of the Bank, which 
establish, in Article 41, an optional conciliation procedure. 
That conciliation procedure under Article 41 of the Bank's Staff Regulations and the 
specific appeal procedure for appraisals, which is provided for by an administrative 
notice issued by the Bank, pursue the same objective as the compulsory 
pre-litigation procedure established by Articles 90 and 91 of the EC Staff 
Regulations. Like the latter, the former are aimed at facilitating an amicable 
settlement of differences by giving the administration the opportunity to alter or 
reverse the contested act and the employee concerned the option of accepting the 
reasons on which the contested act is based and, where appropriate, of refraining 
from bringing proceedings. Moreover, the Bank's regulations do not lay down 
detailed rules for the coordination of those two procedures. In that connection, the 
decision to resort to either procedure, or to both simultaneously or in turn, is thus 
left to the discretion of the employee concerned, subject to observance of the 
time-limit laid down as a guide by the relevant notices for requesting referral to the 
appeal board. 
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DE NICOLA v EIB 
In that context, a period of three months, to run from the date of notification to the 
employee concerned, where appropriate, of the negative outcome of the appeal 
procedure or the failure of the conciliation procedure - which is deemed to have 
failed when, within two weeks of its appointment, the conciliation committee has 
not reached a settlement accepted by both sides - must, in principle, be regarded 
as reasonable, provided however, first, that any appeal procedure has been held 
within a reasonable period and, second, that the party concerned has made any 
request for conciliation within a reasonable period after receiving notification of the 
act adversely affecting him. In addition, the establishment of those two optional 
procedures by, respectively, Article 41 of the Bank's Staff Regulations and the 
abovementioned staff notices, which are binding on the Bank, leads to the 
conclusion that, if an employee requests the initiation, first, of the appeal procedure, 
then of the conciliation procedure, the limitation period for bringing proceedings 
before the Court of First Instance does not start to run until the latter procedure has 
failed, provided that the employee has made his request for conciliation within a 
reasonable time after completion of the appeal procedure. To hold otherwise would 
mean that an employee of the Bank would be obliged to bring an action before the 
Community judicature at a time when he was still endeavouring to have the matter 
settled amicably, which would deprive the optional administrative procedures of 
their effectiveness. 
(see paras 98-101, 106-111) 
See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 9; T-57/89 
Alexandrakis v Commission [1990] ECR II-143, para. 8; C-212/94 FMC and Others 
[1996] ECR I-389, para. 5; T-202/97 Koopman v Commission [1998] ECR-SC I-A-163 
and II-511, paras 23 to 25; T-74/99 Meyer v Council [1999] ECR II-1749, para. 13; 
T-33/99 Méndez Pinedo v ECB [2000] ECR-SC I-A-63 and II-273. para. 32 
2. A special appeal procedure relating to the appraisal procedure for a given year, 
provided for by an administrative notice issued by the European Investment Bank 
to its staff, cannot be compulsory. 
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SUMMARY - JOINED CASES T-7/98 AND T-208/98 
The conditions governing the admissibility of actions brought against the Bank by 
its employees, which are an essential part of their conditions of employment, are, 
in principle, laid down by the Board of Directors, which alone is competent, under 
Article 29 of the Bank's Rules of Procedure, to lay down the regulations relating 
to the Bank's staff. Those conditions of admissibility cannot, therefore, be laid down 
by staff notices issued by the Bank's departments. 
Moreover, referral to an appeal board of matters relating to annual appraisal does 
not deprive the employees concerned of the option of also requesting referral to the 
conciliation committee under Article 41 of the Bank's Staff Regulations. In that 
respect, the appeal procedure, which is provided for only in the context of the 
annual appraisal procedure, resembles the specific internal appeal procedures 
provided for by the Community institutions in general implementing provisions or 
even administrative notices, which are optional in nature and cannot derogate from 
the express provisions of Articles 90 and 91 of the EC Staff Regulations. 
(see paras 103-105) 
See: T-54/92 Schneider v Commission [1994] ECR-SC I-A-281 and II-887, paras 19 
and 22 
3. An employee of the European Investment Bank does not lose his legal interest in 
bringing proceedings for the annulment of appraisals concerning him for the reason 
that annulment of those appraisals, where appropriate, would not necessarily result 
in his promotion under a procedure for promotion without transferring to another 
post. 
(see para. 127) 
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DE NICOLA v EIB 
4. It follows from Articles 22 and 23 of the Staff Regulations of the European 
Investment Bank that the Bank is obliged to undertake an examination of the 
comparative merits of promotion candidates. In that respect, the Bank's employees 
are therefore subject to conditions of employment comparable to those applicable 
to officials of the Community institutions. Transposition of the case-law of the Court 
of Justice and the Court of First Instance relating to the promotion of officials, 
which is governed by Article 45 of the EC Staff Regulations, is therefore fully 
justified. 
Consideration of the comparative merits of candidates is an embodiment of both the 
principle of equal treatment of officials and the principle that they are entitled to 
reasonable career prospects. In setting up a promotion procedure based on merit, 
the Staff Regulations of the Bank thus recognises the principle of the right of its 
staff to reasonable career prospects without such recognition granting them a 
subjective right to promotion, even if they fulfil all the conditions for promotion. 
Moreover, since the administration enjoys wide discretion in the consideration of 
the comparative merits of promotion candidates, review by the Court is confined to 
the question whether the administration has remained within reasonable bounds and 
has not used its authority in a manifestly incorrect manner. The Court cannot 
substitute its assessment of the qualifications and merits of the candidates for that 
of the competent authority. 
(see para. 175-178) 
See: 140/87 Bevan v Commission [1989] ECR 701, para. 34; C-41/88 and C-178/88 
Becker and Starquit v Parliament [1989] ECR 3807, para. 9; C-81/88 Müllers v ESC 
[1990] ECR I-249, para. 32; T-562/93 Obst v Commission [1995] ECR-SC I-A-247 and 
II-737, para. 44; T-13/95 Kyrpitsis v ESC [1996] ECR-SC I-A-167 and II-503, para. 33; 
T-118/95 Anacoreta Correia v Commission [1996] ECR-SC I-A-283 and II-835, paras 54 
and 55 
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SUMMARY — JOINED CASES T-7/98 AND T-208/98 
5. Even though the possibility cannot be excluded that differences between an 
official and his immediate superior, consisting of criticism by the former of 
management within the latter's area of responsibility, may cause a degree of 
irritation on the part of the immediate superior, that possibility does not as such 
imply that the immediate superior is not in a position to assess objectively the merits 
of the person concerned. 
(see para. 188) 
See: T-11/91 Schloh v Council [1992] ECR II-203, para. 53 
6. The bringing of proceedings before the Court cannot, in any circumstances, 
justify refusal of promotion. Moreover, a decision which denies the employee 
concerned promotion on the ground that he has produced internal documents from 
the institution in support of his pleas in law and arguments is, in principle, 
incompatible with the right to an effective remedy. 
However, the unauthorised production of confidential documents belonging to that 
institution and acquired in an improper manner by the employee concerned may 
constitute a culpable act and on that basis may legitimately be taken into 
consideration by the competent authority in rejecting, where appropriate, the 
candidature of the person concerned for promotion, regardless of whether those 
documents will be deemed by the Court to be essential for the purpose of resolving 
the dispute and retained in the file on that basis, subject to the protection of 
confidentiality. 
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DE NICOLA v EIB 
The propriety of the acquisition of a document by an official or employee of an 
institution must be considered in relation to the degree of confidentiality attaching 
to that document. In particular, a confidential document, the distribution of which 
is restricted, is in principle accessible only to the employees to whom it was 
communicated in connection with the performance of their duties. In that regard, it 
should be pointed out that certain documents warrant special protection by reason 
of their nature or their content. That is the case in particular with certain internal 
documents or with correspondence, the confidentiality of which must be ensured in 
order not to impair the proper working of the institution in question. The burden of 
proof of the propriety of the acquisition of a document rests with the party which 
produced it. 
Documents from or exchanged between members of the governing bodies of the 
institution concerned, which, by reason of their nature and their content, are strictly 
confidential and in regard to which there are no grounds for assuming that they 
were intended to be distributed to the employees of the division to which the party 
concerned belonged cannot therefore be considered to have been acquired in a 
proper manner. In those circumstances, the mere fact that documents of that nature 
are located in archives to which the party concerned had unrestricted access does 
not prove that he was entitled to consult them or, a fortiori, to appropriate them for 
purposes other than those directly connected with the performance of his specific 
duties. If the party concerned considered that those documents provided support for 
his pleas in law and arguments, it was for him to request the Court to order their 
production. 
(see paras 219-223, 226-228) 
See: 28/65 Fonzi v EAEC Commission [1966] ECR 477; 232/84 Commission v Tordeur, 
19 March 1985, not published in ECR, para. 8; 31/86 LAISA v Council, 15 October 
1986, not published in ECR, para. 5; T-16/89 Herkenrath and Others v Commission, 13 
November 1990, not published in ECR, para. 5; T-280/94 Lopez v Court of Justice 
[1996] ECR-SC I-A-77 and II-239, paras 57, 58 and 59; Order in T-134/94, T-136/94 
to T-138/94, T-141/94. T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and 
T-157/94 NMH Stahlwerke and Others v Commission [1996] ECR II-537, para. 73 
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SUMMARY - JOINED CASES T-7/98 AND T-208/98 
7. The Staff Regulations of the European Investment Bank do not make resignation 
subject to any special requirement as to form. They merely state, in Article 16, that 
'contracts for an indefinite period may be terminated by due notice given by one 
party to the other'. Moreover, Article 13 of the Statute of the Bank, which provides 
that employees are to be engaged and discharged by the President of the Bank, 
manifestly does not relate to a case where the contract of employment is terminated 
by the employee. With regard to Article 42 of those regulations, which states that 
the declarations and requests provided for by those regulations are to be submitted 
in writing to the President, it cannot be interpreted as meaning that it requires such 
declarations or requests to be formally addressed to him. It is sufficient for them to 
be addressed to the relevant department which will forward them to the President 
through the normal administrative channels. Moreover, the sending of a letter by fax 
complies fully with the requirement of written form, which is aimed only at making 
it possible to establish the intention of the person making the document. 
In the absence of any special requirements as to form, the burden of proof of 
resignation rests with the party relying on it. 
Finally, in principle, since resignation is a unilateral decision, notice of resignation 
produces its effects upon its receipt by the employer. 
(see paras 278-290,292) 
8. Where proven, any pressure or threat, in any form whatsoever, aimed at 
persuading an employee to resign, or any conduct comparable to mental harassment, 
permits the inference that the employee's consent is defective. 
(see para. 295) 
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9. The annulment, on the ground of a defect in consent, of a resignation, which 
renders nugatory the refusal of the institution concerned to accept the withdrawal 
of that resignation and therefore entails the nullity of such a refusal, has the effect 
of placing the author of that resignation in the situation in which he found himself 
before he drafted it, since the contract of employment was never broken. 
In that context, the fact that an employee has been temporarily affected by mental 
illness can on no account justify discriminatory treatment with regard to him, and 
in particular cannot prevent his return to work following his reinstatement. 
Moreover, where, at the time of the withdrawal of his resignation by the party 
concerned, the institution in question has information on his state of health and the 
reasons for that resignation, sufficient to establish a link between the resignation and 
the mental illness from which he was suffering and such as to raise serious doubts 
as to the validity of that resignation, the onus is on it, by virtue of its duty to have 
regard for the welfare of officials, to re-examine all the information at its disposal. 
If it is apparent that the resignation was vitiated by a defect in consent, the 
institution in question is bound to accept immediately the withdrawal of that 
resignation. The suspension of the contract of employment ends on the date of that 
withdrawal. 
(see paras 309, 310, 314) 
10. Since the Court has jurisdiction, under Article 41 of the Staff Regulations of the 
European Investment Bank, to hear and determine individual disputes of any type 
between the Bank and its employees, the rule contained in Article 91(1) of the Staff 
Regulations of Officials of the European Communities, which provides that the 
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SUMMARY - JOINED CASES T-7/98 AND T-20S/98 
Court is to have unlimited jurisdiction in disputes of a financial character, must 
apply by analogy. 
(see para. 315) 
See: T-197/98 Rudolph v Commission [2000] ECR-SC I-A-55 and II-241, para. 32 
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