Order — ECLI:EU:T:2018:796
Date: 2018-11-08
Language of the case: English
Court formation: Fifth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC;Procedural provisions
Procedure: Staff cases;Action for damages - inadmissible;Rectification

summary of the relevant facts and a separate, precise and structured summary of the pleas in law and arguments of law relied on. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible (see, to that effect, and by analogy, judgment of 26 October 2016, Jaber v Council, T‑154/15, not published, EU:T:2016:629, paragraph 52). 43 In the present case, it must be stated that the applicant has not met the requirements mentioned in the preceding paragraph as regards her intention to base her action for damages not only on the allegedly erroneous nature of the 2012 Decision, but also on the alleged lack of action by the EIB to recover the amount of her pension rights that had not been transferred by the INPS in 2012. In fact, it does not appear from the application with the clarity and precision required by Article 50(1)(e) of the Rules of Procedure of the Civil Service Tribunal that the action for damages was also based on that alleged lack of action. It is true that, at paragraph 38 of the application, the applicant mentions that, where the EIB raises no objection to the amount envisaged for the transfer to be made by the INPS, the latter closes in its accounts the individual position of the relevant EIB staff member and keeps the remaining amount. However, it does not appear at all from the application that the applicant wished to base her action on a loss allegedly suffered as a result of the fact that the EIB had failed to act after the adoption of the 2012 Decision, to recover the amount of her pension rights which had not been transferred by the INPS in 2012. 44 On the basis of the considerations set out in the application, it appeared possible to interpret the present action as being based not only on the allegedly erroneous nature of the 2012 Decision, but also on the alleged lack of information on the part of the EIB relating to the content and application of the Agreement. In order to obtain the necessary clarifications, the General Court therefore raised a number of questions with the applicant, including questions regarding the possibility that her appeal should be interpreted as being based on such a lack of information. However, in her reply to the General Court’s question asking her precisely to indicate the act or omission (or the acts or omissions) on which her claim for damages was based, the applicant did not in any way make any reference to that alleged lack of information (see paragraph 39 above). It should also be recalled that in her reply to another question from the General Court, the applicant stated that her action was directed against the 2012 Decision and the alleged subsequent inaction of the EIB (see paragraph 41 above), without making any reference to an alleged lack of information from the EIB. 45 In those circumstances, the present action must be regarded as referring only to the damage allegedly caused to the applicant by the 2012 Decision. Admissibility 46 Under Article 126 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. 47 In the present case, the EIB contends that the applicant did not bring its action within a reasonable time and, in the alternative, that the action was premature. 48 In that regard, it is true that an action for annulment and an action for damages are independent remedies and the person concerned is at liberty to choose either one or the other, or both together. It follows that, where a decision has been taken which adversely affects an official, he is entitled, without seeking annulment of the decision in question, to bring an action based on the alleged unlawfulness of the decision with the sole purpose of obtaining compensation for the damage which he claims that the decision caused him (see judgment of 21 February 2008, Skoulidi v Commission, F‑4/07, EU:F:2008:22, paragraphs 49 to 50 and the case-law cited). 49 However, it follows from case-law that an official may not, by means of an action for the payment of damages, circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view, so that the inadmissibility of an application for annulment, in particular due to being submitted out of time, results in the claim for damages, closely linked to the application for annulment, being inadmissible (see judgment of 16 September 2013, De Nicola v EIB, T‑618/11 P, EU:T:2013:479, paragraph 95 and the case-law cited). 50 As a result, for the purposes of assessing the admissibility of an action for damages, it is necessary to examine whether the applicant seeks, by such an action, to obtain a result which is identical to that which he would have obtained from the success of an action for annulment against an act adversely affecting him which he failed to bring in good time (order of 29 September 2016, Investigación y Desarrollo en Soluciones y Servicios IT v Commission, C‑102/14 P, not published, EU:C:2016:737, paragraph 80). 51 That is so in the present case. The application shows that the applicant takes the view that the EIB should, first, have requested the INPS to transfer the total amount of her pension rights acquired from the INPS to the EIB pension scheme and, second, calculated the periods of insurance to be credited to the applicant in the EIB pension scheme from that transfer on the basis of that total amount. The applicant could therefore have asked for the partial annulment of the 2012 Decision, since, in that decision, the EIB did not rely on the total amount of pension rights acquired by the applicant from the INPS for the calculation of periods of insurance to be credited to the applicant in the EIB pension scheme. As a matter of fact, the 2012 Decision did not have exclusively positive effects on the applicant’s legal position. 52 Article 41 of the EIB Staff Regulations, in the version applicable in the present case, provides as follows: ‘Disputes of any nature between the [EIB] and individual members of staff shall be brought before the Court of Justice [of the European Union]. In addition to proceedings being instituted before the Court of Justice, an amicable settlement shall be sought before the Bank’s Conciliation Board, in respect of disputes other than such as arise from application of the disciplinary measures provided for under Article 38.’ 53 It should be noted that that article does not impose binding mandatory time limits, either for filing a request for conciliation or an action before the General Court. 54 It follows however from case-law that, in the case of an action or request where no provision of European Union law lays down a specific period of time within which that action or request is to be brought, such an action or request must be brought within a reasonable period (judgment of 28 February 2013, Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraph 33). 55 As regards the remedies provided for by Article 41 of the EIB Staff Regulations, as applicable in the present case, their admissibility was in no way conditional upon the exhaustion of the conciliation procedure referred to therein (judgment of 27 April 2012, De Nicola v EIB, T‑37/10 P, EU:T:2012:205, paragraph 75). However, if a member of the EIB staff requests the application of that procedure, the limitation period for bringing an action before the Union judicature does not start to run until the conciliation procedure has been concluded, provided that the member of staff has made his request for conciliation within reasonable time of having been notified of the act adversely affecting him and that the duration of the conciliation procedure itself is reasonable (judgment of 6 March 2001, Dunnett and Others v EIB, T‑192/99, EU:T:2001:72, paragraph 56). 56 Since, in the present case, the applicant submitted a request for conciliation to the EIB before bringing the present action, the latter is therefore admissible only if the request for conciliation had been lodged within a reasonable period. 57 In that regard, it should be borne in mind that the reasonableness of a period is to be appraised in the light of all the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties. Consequently, the period of three months laid down in Article 91(3) of the Staff Regulations cannot be applied by analogy as a limitation period to the members of staff of the EIB when they bring an action for annulment of an EIB measure adversely affecting them (judgment of 28 February 2013, Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraphs 28 and 39). 58 It should be recalled, however, that the General Court has considered, as regards the actions covered by Article 41 of the Rules of Procedure of the EIB, that the concept of a ‘reasonable period’ has to be interpreted in the light of Articles 90 and 91 of the Staff Regulations (see order of 6 December 2002, D v EIB, T‑275/02 R, EU:T:2002:306, paragraph 32 and the case-law cited). It is true, as the Court has pointed out, that the appeal in the case before the General Court, which was brought five months after the adoption of the contested decision, was declared inadmissible only at the end of an examination which led to the finding that the applicant did not raise any particular circumstance that could justify exceeding that three-month period and counterbalance the requirement of legal certainty (judgment of 28 February 2013, Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraph 37). Nevertheless, the Court did not criticise the view of the Civil Service Tribunal that the concept of a ‘reasonable period’ was to be interpreted in the light of the three-month time limit provided for in Article 91(3) of the Staff Regulations. It follows that a period of three months may, in the absence of particular circumstances, be indicative of what must be regarded as constituting a reasonable period for challenging an adverse act. 59 In the present case, it is common ground that the applicant was informed of the 2012 Decision by way of the communication of 3 October 2012. It follows that the applicant’s request for conciliation was submitted nearly three years after she had been made aware of the decision adversely affecting her. It is obvious that such a period of time could not, in the absence of particular circumstances, be considered as a reasonable period to challenge that decision. 60 It is therefore necessary to examine whether, in the present case, particular circumstances might justify the delay in the applicant’s request for conciliation. 61 As regards, first of all, the issue at stake for the applicant, the applicant merely argued that the transfer of her pension rights from the INPS to the EIB had the result that part of those rights has been lost. However, and despite the undeniable importance for the applicant of the possibility of asserting her pension rights, the mere fact of a loss of part of her rights cannot, as such, be regarded as a particular circumstance within the meaning of the case-law cited above. 62 As regards, in the second place, the complexity of the case, it is true that, as the applicant has observed, it concerns a cross-border transfer of pension rights involving several institutions following different procedures. Moreover, it should be noted that the Agreement, which stipulates that the transfer request must relate to all the pension rights acquired under the INPS pension scheme, does not indicate with the desirable clarity that the amount, which can actually be transferred, is determined by the amount of the redemption value calculated by the EIB, on the basis of its own rules. However, it is clear from the evidence submitted by the applicant, at the request of the Court, that as early as April 2012, she had learned that a transfer of her pension rights acquired in Italy would concern only the amount of the redemption value calculated by the EIB and not all of her rights. Contrary to what the applicant claims, her action does not therefore concern an “extraordinarily complex” question. In any event, the applicant’s argument, submitted in the reply, that she became aware of the peculiarity of the Agreement only in October 2015 is contradicted by that evidence. 63 Admittedly, the applicant did not yet know, in 2012, that the INPS was going to decide that she could not derive any benefit from the remaining amount of her pension rights acquired from the INPS pension scheme. It should be noted, however, that in her email of 26 April 2012 addressed to Mrs P., the head of the EIB’s pensions department (see paragraph 16 above), the applicant had already indicated that the transfer would result in a loss of more than EUR 55 000 for her. In any event, the applicant had the possibility of obtaining the necessary clarifications in that respect from the INPS before deciding whether she wished to proceed with her transfer request. In addition, the applicant could have withdrawn her request after learning that she would suffer a loss as a result of the proposed transfer. 64 As regards the applicant’s argument that the complexity of the case is evident from the number of controversial responses given to her by the EIB during the period in question, while adding that evidence concerning those responses would be produced in the present proceedings, it must be stated that the applicant has never produced such evidence. In her reply to the Court’s questions, the applicant also refers to subsequent negotiations conducted by the EIB to reach a friendly settlement and to prevent her from making a formal request. However, the applicant has not produced any evidence to establish that the EIB has attempted to prevent her from bringing her case before the General Court. 65 In the third place, as regards the applicant’s conduct, the following is relevant. Firstly, it is clear from her correspondence exchanged with the EIB and the INPS before the adoption of the 2012 Decision which the applicant submitted to the General Court following a request from it, that the applicant had not retracted her agreement on the transfer despite the fact that she had been informed in April 2012 that the planned transfer would only concern the amount of the redemption value calculated by the EIB and not the total amount of her pension rights, acquired in Italy. Secondly, although the applicant asked the INPS, by email of 12 April 2012 (see paragraph 14 above), to specify what would happen to the amount which would not be transferred to the EIB and to indicate in particular, if she could benefit in the future from a pension in Italy, it does not appear from the evidence submitted by the applicant that she had received an answer to those questions or that she had insisted on such a reply before the 2012 Decision.Thirdly, although the applicant claims that she had taken several consecutive steps with the EIB concerning her pension rights,the first step referred to by the applicant in this context was the contact she made in October 2014, and therefore about two years after she had taken note of the 2012 Decision, with the College of Staff Representatives at the EIB (see paragraph 21 above). 66 In the light of the foregoing, it must be concluded that the applicant has not established the existence of any particular circumstances in the present case and that it follows that she has failed to submit her request for conciliation relating to the 2012 Decision within a reasonable period. 67 Consequently, the action must be rejected as manifestly inadmissible, without it being necessary to examine the arguments submitted by the EIB in the alternative. Consequently, it is no longer necessary to examine the new evidence adduced and the new plea raised by the applicant. Costs 68 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the EIB. On those grounds, THE GENERAL COURT (Fifth Chamber) Hereby orders: 1. The action is dismissed. 2. HS shall pay the costs. Luxembourg, 27 September 2018. E. Coulon D. Gratsias Registrar President * Language of the case: English.