ORDER OF THE GENERAL COURT (Fourth Chamber)
29 June 2023 (*)
(Civil service – EIB Staff – Invalidity Committee – Refusal to recognise incapacity – Rejection of a request for an administrative review – Lis pendens – Inadmissibility)
In Case T‑318/21,
KF, represented by L. Levi, lawyer,
applicant,
v
European Investment Bank (EIB), represented by K. Carr, G. Faedo and J. Pawlowicz, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and I. Reine, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
makes the following
Order
1        By her action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicant, KF, seeks, primarily, annulment of the decision of the European Investment Bank (EIB) of 13 October 2020 by which the EIB informed her that she was not incapacitated (‘the decision of 13 October 2020’) and of the EIB’s decision of 9 March 2021 rejecting her request for an administrative review of the decision of 13 October 2020 (‘the decision rejecting the request for administrative review’) and, in the alternative, compensation for the damage that she claims to have suffered as a result of those decisions.
Background to the dispute
2        The applicant joined the EIB in November 2014 under a fixed-term contract. On 1 November 2017, that contract was extended until 1 November 2020.
3        On 11 March 2020, the applicant requested the establishment of an Invalidity Committee. On 14 April 2020, the EIB informed the applicant of the initiation of the Invalidity Committee procedure.
4        By decision of 14 April 2020, the EIB decided not to renew the applicant’s contract, which would therefore expire on 31 October 2020.
5        By the decision of 13 October 2020, the EIB informed the applicant that she was not incapacitated.
6        By letter of 26 October 2020, sent to the Director-General of Personnel of the EIB, the applicant made observations on the findings set out in the decision of 13 October 2020 and requested that an administrative review procedure be opened.
7        On 26 November 2020, the applicant received a reply confirming the grounds of the decision of 13 October 2020 and setting out the reasons why decisions adopted in the context of an invalidity procedure could not be the subject of an administrative review.
8        By letter of 10 December 2020, also sent to the Director-General of Personnel of the EIB, the applicant requested an administrative review of the decision of 13 October 2020. In that connection, she submitted, inter alia, that decisions adopted in the context of an invalidity procedure could not be regarded as ‘special redress procedures’ within the meaning of Article 41 of the EIB Staff Regulations and claimed that the Implementing Rules on Administrative Review of 26 March 2020 (‘the Implementing Rules’) were unlawful. In addition, she challenged the findings set out in the decision of 13 October 2020 and in the letter of 26 November 2020.
9        By application lodged at the Court Registry on 19 January 2021, the applicant brought an action against the decision of 13 October 2020. That application was registered under case number T‑37/21.
10      On 9 March 2021, the EIB adopted the decision rejecting the request for administrative review, by which it primarily found that such a request was inadmissible and, in the alternative, rejected the applicant’s arguments disputing the lawfulness of the decision of 13 October 2020.
Procedure and forms of order sought
11      The applicant claims that the Court should:
–        annul the decision of 13 October 2020;
–        annul the decision rejecting the request for administrative review;
–        make an order for compensation of the non-material damage suffered;
–        order the EIB to pay the costs.
12      The EIB contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
13      Under Article 129 of the Rules of Procedure of the General Court, the Court may at any time of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.
14      In the present case, the Court considers that it has sufficient information from the documents before it containing all evidence required to rule by reasoned order without taking further steps in the proceedings.
15      In a plea of inadmissibility raised under Article 130(1) of the Rules of Procedure and joined to the main proceedings by order of the Court of 4 February 2022 pursuant to Article 130(7) of those rules, the EIB raised a plea of inadmissibility alleging, inter alia, lis pendens.
16      In her observations on the plea of inadmissibility, the applicant set out her position on that bar to proceedings.
17      According to settled case-law, an action which is between the same parties, has the same purpose and is brought on the basis of the same submissions as an action brought previously must be dismissed as inadmissible, even of the Court’s own motion, on the ground of lis pendens (see order of 14 December 2018, GM and Others v Commission, T‑539/16, not published, EU:T:2018:991, paragraph 32 and the case-law cited).
18      In the first place, regarding the claim for annulment, it is, first, not disputed that the present action and the action in Case T‑37/21 were both brought under Article 270 TFEU and are between the same parties.
19      Second, regarding the purpose of the action, the present action and the action in Case T‑37/21 both contain a claim for annulment of the decision of 13 October 2020. In the present case, however, the applicant also seeks annulment of the decision rejecting the request for administrative review.
20      In that connection, the applicant explained that she had followed the internal review procedure implemented by the EIB ‘as a precaution’, should the Court find that the Implementing Rules are unlawful, and that the present action had therefore been lodged due to the uncertainty regarding the lawfulness and applicability to the present case of those implementing rules. The applicant thus submits that her justification for bringing the present action was to avoid the risk that the action brought in Case T‑37/21 would be found to be inadmissible on the ground that there had not been compliance with the pre-litigation procedure.
21      As a result, the application for annulment of the decision rejecting the request for administrative review was not made for any purpose other than that of ensuring the admissibility of the claim for annulment of the decision of 13 October 2020. It is therefore appropriate to find that the present action and the action in Case T‑37/21 have the same purpose, that is, the annulment of the decision of 13 October 2020.
22      Moreover, the mere fact that several actions have been brought against separate decisions adopted formally by an administrative body is not sufficient to support the conclusion that those actions do not have the same purpose where those separate decisions have substantially the same content and are based on the same grounds (see, to that effect, judgment of 25 June 2010, Imperial Chemical Industries v Commission, T‑66/01, EU:T:2010:255, paragraphs 207 and 208).
23      More specifically, it must be borne in mind that, according to the case-law relating to the complaints procedure laid down in the Staff Regulations of Officials of the European Union, which may be transposed to the administrative review procedure laid down in the EIB Staff Regulations, claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing the act against which the complaint was brought before the Court, where those claims, in themselves, have no independent content (see, to that effect, judgment of 7 September 2022, KL v EIB, T‑651/20, not published, EU:T:2022:512, paragraphs 36 and 37).
24      In the present case, even assuming that the applicant were able validly to make a request for administrative review against the decision of 13 October 2020, it must be stated that, by rejecting the request for administrative review, the EIB did no more than confirm that decision. Therefore, in accordance with the case-law cited in paragraph 23 above, the claim for annulment directed against the decision rejecting the request for administrative review would have the effect of bringing solely the decision of 13 October 2020 before the Court, as did the claim for annulment in Case T‑37/21.
25      Third, it is apparent from her written submissions that, in support of her claim for annulment, the applicant raises, in essence, the same pleas in the present case and in Case T‑37/21. In Case T‑37/21, the applicant raises a first plea, alleging infringement of Articles 46-1 and 51-1 of the transitional pension scheme regulations applicable to EIB staff, and a second plea, alleging breach of the principle of impartiality; those two pleas have also been raised in the present case.
26      Admittedly, in the present action, the applicant formally raises two other separate pleas alleging, first, infringement of Article 34 of the Charter of Fundamental Rights of the European Union and breach of the duty to have regard to the welfare of officials and, second, breach of the principle of good administration. However, it must be pointed out that the arguments put forward in those two separate pleas in the application initiating the present proceedings were in fact raised, in essence, in the two pleas in support of the claim for annulment in Case T‑37/21.
27      Moreover, although the applicant, in the present action, also raises arguments regarding whether it was possible to make a request for administrative review of the decisions adopted in the context of an invalidity procedure on the ground that that procedure is an internal redress procedure within the meaning of Article 41 of the EIB Staff Regulations, the Court takes the view that those claims, as stated in paragraph 21 above, have no purpose other than that of ensuring the admissibility of the claim for annulment of the decision of 13 October 2020 and therefore have the same purpose as the claim for annulment set out in the context of the action in Case T‑37/21.
28      In the second place, regarding the claim for compensation, it must be stated that the claims made in the present action and those made in Case T‑37/21 are identical, with the result that they have the same purpose. They seek compensation for the same damage that the applicant claims to have suffered on account of the decision of 13 October 2020, that is, non-material damage flowing, in essence, from a situation that gave rise to anxiety, and assessed at EUR 10 000.
29      In the light of the foregoing, the Court finds that the present action is between the same parties, has the same purpose and is brought on the basis of the same submissions as the action brought in Case T‑37/21.
30      It follows that the present action must be dismissed as inadmissible on the ground of lis pendens.
Costs
31      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 135 of those rules, the Court may, first, if equity so requires, decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own, or even that it is not to be ordered to pay any costs. Second, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
32      In the present case, it must be borne in mind that the applicant stated that the present action had been brought solely on account of uncertainty regarding the admissibility of the action in Case T‑37/21 in the light of the EIB Staff Regulations and Implementing Rules, which led her to make an additional request for administrative review and to bring several actions. In those circumstances, the Court decides that the EIB is to bear its own costs and to pay the costs incurred by the applicant.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      The European Investment Bank (EIB) shall pay the costs.
Luxembourg, 29 June 2023.
V. Di Bucci
R. da Silva Passos
Registrar
President
*      Language of the case: English.