JUDGMENT OF THE GENERAL COURT (First Chamber)
8 December 2021
(*)
(Civil service – ECB staff – Request for recognition of an occupational disease – Non-contractual liability – Material damage – Non-material damage)
In Case T‑500/16,
BZ, represented by H. Tettenborn, lawyer,
applicant,
v
European Central Bank (ECB), represented by E. Carlini and F. Feyerbacher, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
APPLICATION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union for, first, annulment of the ECB’s decisions of 29 August 2011, 20 December 2011 and 25 April 2012 and, secondly, compensation for the material and non-material damage allegedly sustained as a result of the ECB’s conduct,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, M. Jaeger (Rapporteur) and N. Półtorak, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1        The applicant, BZ, who was a member of staff at the European Monetary Institute (EMI) from 1 September 1995 and then at the European Central Bank (ECB) from 1998, was assigned as a senior expert to the Market Infrastructure Division of the ECB’s ‘Payments’ Directorate-General.
2        In 1998, the applicant became a member of the ECB Staff Committee and, save for a short period in 2006, remained a member until June 2008. For the purposes of her staff representation activities, the applicant was granted a dispensation from service of between 20% and 50% of her working time.
3        From the first half of 2006, the applicant began suffering health problems. As a result, from March to the end of May 2007, her working time was adapted.
4        Since 18 January 2008, the applicant has been on sick leave.
5        In December 2008, the applicant was declared unfit to work for a three-month period, which was extended in March 2009 and then again in March 2010, following medical examinations.
6        On 2 October 2008, the applicant submitted a request for recognition of her medical condition as an occupational disease.
7        On 10 December 2008, the applicant received a letter from the ECB explaining to her the stages of the procedure for recognition of a medical condition as an occupational disease. In addition, the ECB took the opportunity to inform the applicant that the medical expert chosen in respect of her request was A.
8        On 16 February 2010, the applicant asked the ECB’s medical adviser to replace A, the medical expert responsible for her file, with another expert, on the ground that A was not sufficiently neutral.
9        By letter of 31 May 2010, the ECB decided to grant the applicant’s request to close the first procedure for recognition of her medical condition as an occupational disease and to initiate a second procedure appointing a new medical expert, B.
10      By letter of 28 June 2011, the applicant requested that the second procedure for recognition of her medical condition as an occupational disease be closed and that she be sent all the data collected and stored by the ECB on her state of health and on the medical procedures concerning her. In that connection, the applicant refers in particular to the non-anonymised version of the answers to the questionnaire drawn up by the ECB in order to ascertain the applicant’s working environment and the other data which may have been collected up to that point, such as notes of the interviews organised by the Human Resources Directorate, in a non-anonymised form, as well as all data that would be collected in the future in the new procedure for recognition of her medical condition as an occupational disease. Furthermore, the applicant requested that an investigation be conducted taking into account all the facts relating to her working conditions which could be useful for the doctor’s assessment, and that a proper report be drafted.
She also claimed compensation for the material and non-material damage which she claimed she sustained on account of, first, a number of wrongful acts committed by the ECB during the two procedures for recognition of her medical condition as an occupational disease
as well as the invalidity procedure and, secondly, the ECB’s conduct, which, in her view, is responsible for the worsening of her state of health and her inability to recover.
11      By letter of 29 August 2011, the ECB, first, granted the applicant’s request that the second procedure for recognition of her medical condition as an occupational disease be closed and initiated a third procedure and, secondly, rejected the applicant’s claims for compensation.
12      On 27 October 2011, the applicant submitted a request for an administrative review of the decision to reject her claim for compensation for the damage which she claimed to have sustained.
13      On 20 December 2011, the ECB refused that request.
14      On 20 February 2012, the applicant lodged a complaint.
15      On 25 April 2012, the ECB rejected that complaint.
Procedure and forms of order sought
16      By application lodged at the Registry of the Civil Service Tribunal on 5 July 2012, the applicant brought the present action, registered under number [confidential]. (1)
17      On 17 May 2013, the applicant requested a second exchange of pleadings.
18      By decision of 29 May 2013, the President of the Third Chamber of the Civil Service Tribunal decided to stay the proceedings in Case [confidential] pending delivery of the decision of the General Court concluding the proceedings in Case [confidential].
19      By judgment [confidential], the General Court set aside the judgment [confidential] and referred the case back to the Civil Service Tribunal. That case was registered under number [confidential].
20      On 22 October 2015, the proceedings were resumed.
21      Following the judgment [confidential], the President of the Third Chamber of the Civil Service Tribunal decided, on 9 November 2015, to stay the proceedings again until the decision closing the proceedings in Case [confidential] had become res judicata.
22      Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200,
p. 137), the present case was transferred to the General Court as it stood on 31 August 2016. It was registered under number T‑500/16.
23      Case [confidential], following its transfer to the Court, was registered under number [confidential].
24      By judgment [confidential], the General Court annulled, first, the ECB’s decision of 24 November 2009 closing the internal administrative inquiry opened following the applicant’s complaint and, secondly, the ECB’s decision of 24 March 2010 rejecting the applicant’s special appeal. The Court also ordered the ECB to pay the applicant the sum of
EUR 20 000 by way of damages.
25      On 7 August 2020, the proceedings were resumed in the present case.
26      On 26 August 2020, by way of measures of organisation of procedure provided for in Article 89(3) of its Rules of Procedure, the Court asked the parties to submit their observations on the inferences for the present case to be drawn from the judgment [confidential].
27      On 15 September 2020, the applicant and the ECB replied to the Court’s question.
28      On 28 October 2020, the Court granted the applicant’s request to lodge a reply, which she did on 18 December 2020.
29      On 3 March 2021, the ECB lodged its rejoinder.
30      On 9 March 2021, the Court asked the parties whether they wished a hearing to be held.
31      The ECB did not respond to the Court’s request.
32      By letter of 12 April 2021, the applicant replied that she did not wish to be heard. However, she submitted what she describes as new evidence and raised a plea of illegality in respect of the ECB’s ‘administrative practice’.
33      On 19 April 2021, the President of the First Chamber of the General Court prescribed a two-week time limit for the ECB to lodge its observations, first, pursuant to Article 85(4) of the Rules of Procedure, on what the applicant describes as new evidence and, secondly, pursuant to Article 84(3) of those rules, on the applicant’s plea of illegality.
34      On 5 May 2021, the ECB lodged its observations.
35      The applicant claims that the Court should:
–        annul the decision of 25 April 2012 by which the ECB refused her requests of 28 June 2011 and those contained in the letters of 27 October 2011 and 20 February 2012;
–        consequently, grant those requests, in particular those asking that an appropriate investigation be conducted and a proper report be drafted so as to list all the facts relating to her working conditions in so far as they may be useful for a doctor’s assessment;
–        order the ECB to provide her with all the data collected and stored by the Human Resources Directorate on her state of health and on the medical procedures concerning her, in particular data collected so far, including the non-anonymised version of the answers to the questionnaire, other data which may have been collected thus far, such as the notes of the interviews organised by the Human Resources Directorate, in a non-anonymised form, and any data that may be collected in the future in the new procedure for recognition of her medical condition as an occupational disease;
–        order the ECB to pay her the sum of
EUR 50 000
for the unreasonable delay affecting the procedure for recognition of her medical condition as an occupational disease;
–        order the ECB to pay her the sum of
EUR 5 000
for the lawyers’ fees incurred during the unlawful procedure for recognition of her medical condition as an occupational disease and unlawful invalidity procedure;
–        order the ECB to pay her the sums of
EUR 25 000 in respect of the procedure for recognition of her medical condition as an occupational disease and
EUR 25 000 in respect of the invalidity procedure, for the non-material damage resulting from the ECB’s unlawful conduct, the additional unnecessary burden she was under during the medical procedures, the efforts she made during the period in question and the uncertainty she encountered;
–        order the ECB to pay her the sum of
EUR 25 000 for harm to her honour and reputation and for the unlawful attempt to terminate her contract of employment;
–        order the ECB to pay her the difference between the invalidity allowance paid to her and the full salary which she should have received since January 2009;
–        order the ECB to pay her the sum of
EUR 100 000 for her loss of career prospects;
–        order the ECB to pay her the equivalent of seven salary steps per year (3.5%) from 2009 as compensation for the loss of increase in her salary;
–        order the ECB to reimburse her for all the medical expenses she has incurred since 2006 in connection with her occupational disease;
–        order the ECB to pay her default interest at the rate of 8% of the amount awarded;
–        order the ECB to pay the costs.
36      In addition, the applicant claims that the Court should adopt a measure of organisation of procedure requiring the ECB to produce all the documents relating to the medical procedures concerning her which it has refused to provide her with.
37      The ECB contends that the Court should:
–        dismiss the action as being in part inadmissible and in part unfounded;
–        order the applicant to pay the costs.
Law
The first head of claim
38      In response to the applicant’s letter of 28 June 2011, the ECB, by decision of 29 August 2011, closed the second procedure for recognition of the applicant’s medical condition as an occupational disease and initiated a third procedure. By the same decision, however, the ECB rejected the claim for compensation for the damage which the applicant claimed to have sustained.
39      In response to the applicant’s request of 27 October 2011 for an administrative review, the ECB, by decision of 20 December 2011, again rejected the applicant’s claim for compensation.
40      The applicant’s complaint of 20 February 2012, in which she repeated her claim for compensation, was rejected by decision of the ECB of 25 April 2012.
41      The applicant’s first head of claim must therefore be understood as seeking annulment of the ECB’s decisions of 29 August 2011, 20 December 2011 and 25 April 2012, in so far as those decisions rejected her claim for compensation.
42      In that regard, in accordance with settled case-law in civil service matters, an institution’s decision rejecting a claim for compensation forms an integral part of the preliminary administrative procedure which precedes an action for damages brought before the General Court and, consequently, claims for annulment cannot be assessed in isolation from the claim for compensation. The measure setting out the position adopted by the institution during the pre-litigation stage has the sole effect of allowing the party who has suffered damage to apply to the General Court for compensation (see judgment of 19 December 2019, Wehrheim v ECB, T‑100/18, not published, EU:T:2019:882, paragraph 25 and the case-law cited).
43      Accordingly, there is no need to give a separate ruling on the claims for annulment brought by the applicant under her first head of claim, since the sole purpose of those claims is to obtain compensation for the material and non-material damage which the applicant considers herself to have sustained as a result of the ECB’s conduct.
The material damage which the applicant claims to have sustained
44      In the first place, the applicant argues that the material damage sustained takes the form of a loss of salary and, more broadly, of the loss of other income, linked to the fact that she remains unfit to work.
45      In that regard, the applicant takes the view that the total amount of that damage comprises, first, the difference between the invalidity allowance paid to her and the full salary she should have received since 2009, secondly, an amount of
EUR 100 000 for her loss of career prospects, thirdly, the equivalent of seven salary steps per year from 2009, fourthly, an annual increase equivalent to those seven salary steps until she resumes work or, if her incapacity to work is extended, until she is entitled to receive her pension and, fifthly, full reimbursement of the medical expenses she has incurred as a result of her occupational disease.
46      In the second place, the applicant claims that she also sustained material damage due to the fact that she was obliged to instruct several lawyers in order to defend herself against the ECB’s wrongful actions, damage which she assesses at
EUR 5 000.
47      The ECB disputes the applicant’s arguments.
–       The material damage connected with the medical expenses incurred and the loss of salary and other income
48      It should be pointed out that the applicant’s claim for compensation is based on her medical condition
allegedly being an occupational disease and on the fact that she was allegedly the victim of harassment.
49      However, first, in so far as the judgment of 30 June 2021, BZ v ECB (T‑554/16, not published, EU:T:2021:387), annulled the ECB’s decision of 23 July 2014 closing the procedure for recognition of the applicant’s medical condition as an occupational disease, it is for the ECB to take all measures necessary to give effect to that judgment and, therefore, if necessary, to again take a decision on the request for recognition of her medical condition as an occupational disease. Secondly, in so far as the judgment [confidential] annulled the ECB’s decision of 24 November 2009 closing the internal administrative inquiry opened following the applicant’s complaint of discrimination and attack on her dignity constituting alleged psychological harassment, it is for the ECB to take all measures necessary to give effect to that judgment and, therefore, if necessary, to again take a decision on the applicant’s complaint in order to determine whether the conduct complained of constitutes psychological harassment or discrimination against her.
50      Thus, since the Court cannot prejudge the measures taken to implement those two judgments and cannot therefore prejudge the outcome of the procedure for recognition of the applicant’s medical condition as an occupational disease and the conclusions of the internal administrative inquiry, in the light of which the applicant may, as necessary, submit new claims for compensation, the claims for compensation for the material damage connected with the medical expenses incurred and the loss of salary and other income must be dismissed as premature (see, to that effect, order of 3 May 2017, De Nicola v EIB, T‑71/16 P, not published, EU:T:2017:307, paragraph 24).
–       The material damage connected with the lawyers’ fees incurred by the applicant
51      As regards the material damage which the applicant claims to have sustained as a result of having been obliged to instruct several lawyers in order to defend herself against the ECB’s wrongful actions, it should be borne in mind that a claim for compensation for damage caused by an institution must state the evidence from which it is possible to identify, inter alia, the damage which the applicant claims to have sustained and, more specifically, the nature and extent of that damage (judgment of 30 June 2021, BZ v ECB, T‑554/16, not published, EU:T:2021:387, paragraph 93). Against that background, it is sufficient to state that the applicant merely assesses the material damage at
EUR 5 000, without adducing any evidence in support of that assessment.
52      Accordingly, that part of the claim for compensation for the material damage which the applicant claims to have sustained must also be dismissed.
The non-material damage which the applicant claims to have sustained
53      In the first place, the applicant argues that the unreasonable delay that affected the procedure for recognition of her medical condition as an occupational disease, which had still not been completed almost three years later, caused her non-material damage which she provisionally calculates at
EUR 50 000.
54      In the second place, the applicant seeks – by way of compensation for the non-material damage resulting from the ECB’s unlawful conduct, the additional unnecessary burden she was under during the medical procedures, the efforts she made during the period in question and the uncertainty she encountered – compensation which she provisionally calculates at
EUR 50 000, being
EUR 25 000 in respect of the procedure for recognition of her medical condition as an occupational disease and
EUR 25 000 in respect of the invalidity procedure.
55      First, as regards the two procedures for recognition of her medical condition as an occupational disease, the applicant submits, first of all,
that the inquiry report of 11 November 2009, which was adopted in the procedure relating to the harassment of which she claims to have been the victim and which was used in those procedures, is incomplete and not objective, as was, moreover, acknowledged by the Court in the judgment [confidential]. Next, in the decision of 20 December 2011, the ECB, relying on that report, misconstrued the scope of the judgment [confidential], in so far as the findings made in that judgment refer, according to the applicant, to the fact that the workload allocated to her formed part of the working conditions which gave rise to her medical condition. Lastly, the applicant asserts that, while it is apparent from a letter reproduced as
Annex A.25 to the application that she had repeatedly asked the ECB to send all communications concerning her only to her lawyer, the inquiry report of 11 November 2009 was sent to her directly, which caused her stress and anxiety.
56      Secondly, as regards the invalidity procedure, the applicant claims that the ECB lacked neutrality and misused its powers. In her view, the ECB requested that its medical adviser amend the medical certificate of 14 April 2009 by deleting the recommendation that the applicant change post and the duration of her incapacity to work.
57      Furthermore, the applicant asserts that the ECB’s conduct in the invalidity procedure also affected
the two procedures for recognition of her medical condition as an occupational disease and that the non-material damage she sustained is also due to the uncertainty in which the ECB’s conduct placed her and the ECB’s failure to comply with the medical recommendations relating to her.
58      Thirdly, the applicant maintains that the ECB is responsible for the worsening of her state of health.
59      Fourthly, the applicant claims that the ECB’s conduct placed her
under an additional unnecessary burden during her illness and required efforts on her part during that period.
60      In the third place, the applicant submits that the harm to her honour and reputation and the ECB’s attempt to terminate her contract of employment caused her non-material damage, which she calculates at
EUR 25 000.
61      As regards the harm to her honour and reputation, the applicant submits that, despite her wish for her reputation to be restored, her requests remained unanswered by the ECB.
In support of her claim, the applicant refers to the recommendations of her treating physicians and the ECB’s medical adviser, reproduced as
Annexes A.28, A.29 and A.33 to the application.
62      As regards the ECB’s attempt to terminate her contract of employment, the applicant, first, refers to a meeting held on 2 December 2009 at the Civil Service Tribunal the purpose of which was to try and reach an amicable settlement in the cases registered under numbers [confidential], in which she was also the applicant, and, secondly, produces two documents, namely the observations added to the minutes of that meeting, as
Annex A.26 to the application, and a letter from the Civil Service Tribunal as
Annex A.27 to the application.
63      The ECB disputes the applicant’s arguments.
–       The non-material damage connected with the unreasonable delay which affected the first and second procedures for recognition of the applicant’s medical condition as an occupational disease
64      It should be noted that
the first procedure for recognition of the applicant’s medical condition as an occupational disease was initiated on 8 October 2008 and closed on 31 May 2010
and that
the second procedure for recognition of her medical condition as an occupational disease was initiated on 31 May 2010 and closed on 29 August 2011. Those procedures therefore lasted just over 19 months and approximately 15 months, respectively.
65      In the judgment of 30 June 2021, BZ v ECB (T‑554/16, not published, EU:T:2021:387, paragraph 95), the Court held, as regards the duration of the third procedure for recognition of the applicant’s medical condition as an occupational disease, that the period between 1 October 2012 and 23 July 2014, being just over 21 months, was not excessive such as to cause the applicant non-material damage.
Consequently, it should be held that, in the present case, the duration of each of the first and second procedures for recognition of the applicant’s medical condition as an occupational disease was less than 21 months and cannot therefore be regarded as excessive such as to cause her non-material damage.
66      Furthermore, even if the cumulative duration of 34 months for the two procedures were to be
taken into consideration, that duration could likewise not be regarded as unreasonable, taking into account the circumstances of the present case.
First, it should be borne in mind that the first and second procedures for recognition of the applicant’s medical condition as an occupational disease were closed at her request and, secondly, it should be found that their duration can be justified, as is apparent from the file, by the existence of other procedures also ongoing at the time and involving a certain degree of interplay with them, in particular the invalidity procedure and the internal administrative inquiry opened following the applicant’s complaint regarding alleged harassment.
–       The non-material damage connected with the first and second procedures for recognition of the applicant’s medical condition as an occupational disease and the invalidity procedure, owing to the ECB’s unlawful conduct, the additional unnecessary burden the applicant was under during her illness, the efforts she made during the period in question and the uncertainty she encountered
67      In the first place, the applicant claims that the ECB is responsible for irregularities committed during the first and second procedures for recognition of her medical condition as an occupational disease, which caused her non-material damage and which, in essence, stem from the ECB’s use of the inquiry report of 11 November 2009 for the purpose of those procedures.
68      In that regard, it is sufficient to note that, even if it were accepted that the inquiry report of 11 November 2009 had led to the first and second procedures for recognition of her medical condition as an occupational disease and the ECB’s decision of 20 December 2011 being flawed, it should be held that those irregularities were sufficiently remedied by the judgment [confidential], which acknowledged that that report was incomplete and manifestly wrong.
69      The same applies to the applicant’s argument that the ECB caused her damage by sending her the inquiry report of 11 November 2009 directly despite her ‘repeated’ requests that any communication be sent to her lawyer, as is apparent, she submits, from the letter reproduced as
Annex A.25 to the application. By that letter, the applicant’s representative does ask the ECB to send any communication concerning the applicant to the representative.
However, neither that letter nor any other material in the file supports a finding that that request was repeated, with the result that no direct link has been established between the applicant being sent the inquiry report directly and the damage which she claims to have sustained.
Consequently, even though the ECB sent the inquiry report of 11 November 2009 directly to the applicant, that cannot be regarded as capable of rendering it liable.
70      In the second place, as regards the applicant’s invalidity
procedure, it should be noted that the ECB acknowledges that the medical adviser issued a medical certificate containing a recommendation that she be employed in a different department. However, the ECB took the view that that medical certificate was invalid on the ground that the doctor had gone beyond the mandate and powers conferred on him, since he was charged with carrying out an assessment that was strictly medical, not operational.
Consequently, following an exchange between the ECB and the medical adviser, the medical adviser drew up, on the same day, being 14 April 2009, a new medical certificate merely confirming that the applicant was unfit to work. The ECB states that, following the accusations made by the applicant that that amendment amounted to falsification of the medical certificate, the first medical certificate was reinserted in her personal file and the second was destroyed.
71      In view of the fact that, in the application, the applicant herself acknowledges that the ECB did in fact replace the second certificate with the first, she should not be found to have sustained any non-material damage, without there being any need to rule on whether the ECB’s exchange with the medical adviser was unlawful.
72      The same applies to the non-material damage which the applicant claims to have sustained as a result of, first, the ECB’s conduct and, secondly, the uncertainty she encountered.
Since the medical file was rectified by the medical certificates being replaced, the applicant cannot claim to have encountered uncertainty in so far as concerns the content of the medical observations submitted in the invalidity procedure, nor can she claim that the ECB’s conduct in that procedure affected the two procedures for recognition of her medical condition as an occupational disease thereby causing her damage.
73      In the third place, as regards the worsening of the applicant’s health, it is sufficient to note that, in order to find that the ECB is responsible for it, it is necessary to determine at the outset, first, whether the applicant’s complaint relating to the psychological harassment she claims to have sustained is well founded and, secondly, that her medical condition is an occupational disease. Accordingly, and for the same reasons as those set out in paragraph 50 above, that claim must be dismissed as premature.
74      In the fourth place, as regards the additional unnecessary burden which the applicant claims to have been under during her illness and the efforts she allegedly made during that period, it should be pointed out that, in accordance with settled case-law, an application seeking compensation for damage allegedly caused by an EU institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons why the applicant considers that there is a causal link between the conduct and the damage he or she claims to have suffered, and the nature and extent of that damage (see judgment of 25 June 2020, ZS v EIB, T‑659/18, not published, EU:T:2020:281, paragraph 94 and the case-law cited).
75      In her pleadings, however, the applicant refers only to the additional unnecessary burden she was under during her illness and the efforts she made during that period, without explaining why she takes the view that there is a causal link between the ECB’s conduct, which is, moreover, not clearly identifiable, and the damage which she claims to have sustained. Accordingly, that claim must also be dismissed.
–       The non-material damage connected with the harm to the applicant’s honour and reputation and with the ECB’s attempt to terminate her contract
76      As regards the non-material damage which she claims to have sustained as a result of harm to her honour and reputation, the applicant provides, in support of her claims, the recommendations of her treating physicians and the ECB’s medical adviser, reproduced as
Annexes A.28, A.29 and A.33 to the application.
77      First of all, it should be pointed out that, in the documents provided as Annex A.28 to the application, one of the applicant’s treating physicians refers to the fact that the ECB made negative comments about the applicant relating to frequent absences, delays in completing her work and the fact that she was a difficult colleague. Another doctor observes that the applicant’s reputation was called into question in the inquiry report of 11 November 2009, adopted in the procedure relating to the harassment of which she claimed to be the victim.
Next, in the document reproduced as Annex A.33 to the application, the same doctor observes, again, that that report harmed the applicant’s reputation. Lastly, in the document reproduced as
Annex A.29 to the application, the ECB’s medical adviser does not, however, make any reference to harm to the applicant’s reputation. He merely states that it was not appropriate to arrange an interview in relation to conflicts in the applicant’s workplace, since that could lead to a worsening of her state of health.
78      In that regard, it should be borne in mind that, in paragraphs 343 to 345 and 441 of the judgment [confidential], on which the parties had an opportunity to state their views (see paragraph 27 above), the Court held that the defamatory nature of the comments about the applicant, in particular the statements contained in the inquiry report of 11 November 2009 about her alleged bad reputation owing to her frequent absences, delay in completing work and the fact that she is a difficult colleague, was not established.
Consequently, the Court dismissed the applicant’s claim relating to non-material damage as a result of those comments.
79      In accordance with settled case‑law, a judgment’s status as res judicata is such as to bar the admissibility of an action if the proceedings disposed of by the judgment in question were between the same parties, had the same purpose and the same legal basis, those conditions necessarily being cumulative (see judgment of 25 June 2010, Imperial Chemical Industries v Commission, T‑66/01, EU:T:2010:255, paragraph 197 and the case-law cited).
80      In particular, as regards claims for damages, the force of res judicata attaching to a judgment dismissing such claims on the ground that neither the fact and extent of the damage alleged nor the existence of a causal link between that damage and the instances of material unlawfulness pleaded in support of that claim had been proved to the requisite legal standard, precludes an applicant from being able to claim afresh compensation for damage corresponding to the damage in respect of which the claim for compensation on the same grounds has already been rejected (see, to that effect, judgment of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraphs 21 to 25 and the case-law cited).
81      In the present case, it must be held, first of all, that the condition requiring that the parties concerned be the same is satisfied. Next, the condition requiring that the purpose be the same is also satisfied, since, in the case which gave rise to the judgment [confidential], the applicant sought, as she does, in essence, in the present case, compensation for damage connected with harm to her reputation owing to the defamatory nature of the statements contained in the inquiry report of 11 November 2009. Lastly, the condition requiring that the legal basis be the same is also satisfied, since, in the case which gave rise to the judgment [confidential], the applicant also based her claim on the ECB’s non-contractual liability, arguing that the statements contained in the inquiry report of 11 November 2009 concerning her alleged bad reputation were connected with her frequent absences, delays in completing work and the fact that she was purportedly a difficult colleague.
82      Thus, given the force of res judicata which attaches to the grounds constituting the necessary basis for the operative part of the judgment [confidential], the claim for compensation for the non-material damage which the applicant claims to have sustained as a result of harm to her honour and reputation must be dismissed.
83      In support of her argument that the ECB attempted to terminate her contract of employment, the applicant refers to a meeting held on 2 December 2009 at the Civil Service Tribunal the purpose of which was to try and reach an amicable settlement in Cases [confidential], in which she was also the applicant. The applicant produces two documents in that connection, namely the observations added to the minutes of that meeting, as
Annex A.26 to the application, and a letter sent by the Civil Service Tribunal as
Annex A.27 to the application.
84      However, it should be pointed out that both Article 70 of the Rules of Procedure of the Civil Service Tribunal, then applicable, and Article 125d of the Rules of Procedure provide, in essence, that no opinion expressed, suggestion made, proposal put forward, concession made or document drawn up for the purposes of the amicable settlement may be relied on as evidence by the Tribunal or the Court or by the parties in the judicial proceedings.
Thus, as observed by the ECB, it must be held that, in the present action, the applicant cannot rely on the potential termination of her contract, raised as part of the attempt to reach an amicable settlement, as the basis for her claim for compensation.
85      In the light of those considerations, the applicant’s claim for compensation for the non-material damage which she claims to have sustained must be dismissed.
The second and third heads of claim, containing a claim for an order that the ECB, first, conduct an appropriate inquiry and draw up a proper report and, secondly, send the applicant all the data collected and stored by the Human Resources Directorate on her state of health and the medical procedures concerning her
86      By her second and third heads of claim, the applicant claims that the Court should order the ECB, first, to conduct an appropriate inquiry and draw up a proper report and, secondly, to send her all the data collected and stored by the Human Resources Directorate on her state of health and on the medical procedures concerning her.
87      It is clear that, by those heads of claim, the applicant is, in essence, asking the Court to issue directions to the ECB.
However, in accordance with well-established case-law, the EU judicature may not, without encroaching on the powers of the administration, give directions to an EU institution. The Court not only lacks jurisdiction, in an action for annulment, to hear and determine heads of claim seeking an order requiring a defendant institution to adopt the necessary measures for the enforcement of a judgment by which a decision is annulled, but, in principle, it also lacks jurisdiction to do so in proceedings in which the Court has unlimited jurisdiction, such as in an action for damages in which an applicant seeks an order that a defendant institution take specific measures to make good the alleged damage (see, to that effect, judgment of 15 January 2019, HJ v EMA, T‑881/16, not published, EU:T:2019:5, paragraph 26
and the case-law cited).
88      Consequently, the applicant’s claim for an order requiring the ECB, first, to conduct an appropriate inquiry and draw up a proper report and, secondly, to send her all the data collected and stored by the Human Resources Directorate on her state of health and on the medical procedures concerning her must be dismissed on the ground of lack of jurisdiction.
The new evidence and plea of illegality contained in the applicant’s letter of 12 April 2021
89      As a preliminary point, it should be noted that, in her letter of 12 April 2021, the applicant, first, presents what she describes as new evidence and, secondly, raises a plea of illegality against the ECB’s administrative practice.
90      As regards what she describes as being
new evidence, the applicant claims (i) that the Court should order the ECB to produce the confidential version of a note drawn up by its legal service on 18 November 2010, headed ‘Outcome and implications of court cases [confidential]’, the non-confidential version of which she produces as Annex A.31 to the application, and
(ii) that errors were made in the implementation of the judgment [confidential], which has implications for the present case.
91      In the first place, as regards the claim for production of the confidential version of the note drawn up by the ECB’s legal service, it should be noted that this is, in fact, a request for the adoption of a measure of organisation of procedure.
92      First, however, it should be pointed out that that note is cited by the applicant in support of her argument that, in the inquiry report of 11 November 2009, the ECB misconstrued the scope of the judgment [confidential] and this affected the procedure for recognition of her medical condition as an occupational disease. In that regard, it is sufficient to note that it has been held, in paragraph 68 above, that, even if it were accepted that irregularities connected with the inquiry report of 11 November 2009 and liable of having affected the first and second procedures for recognition of the applicant’s medical condition as an occupational disease and the ECB’s decision of 20 December 2011 were proved, they were sufficiently remedied by the judgment [confidential], which acknowledged that that report was incomplete and manifestly incorrect.
93      Secondly, the applicant requests the adoption of such a measure of organisation of procedure in order to demonstrate that the ECB envisaged the possibility of terminating her contract. However, that argument was held to be inadmissible in paragraph 84 above.
94      Accordingly, the request for the adoption of a measure of organisation of procedure seeking the production of the confidential version of the note produced as Annex A.31 to the application must be refused.
95      In the second place, as regards the alleged errors made by the ECB in implementing the judgment [confidential], it is sufficient to state that this is not new evidence but criticisms expressed by the applicant in response to the rejoinder. However, no provision exists whereby an applicant may submit, in writing and on his or her own initiative, new arguments in response to the rejoinder. Moreover, even if those criticisms could be regarded as new pleas, they would be out of time and would have to be rejected as inadmissible pursuant to Article 84 of the Rules of Procedure.
96      As regards the applicant’s plea of illegality, without there being any need to rule on its admissibility, suffice it to state that it has no bearing on the present action for damages. It alleges that the ECB’s administrative practice governing the first and second procedures for recognition of the applicant’s medical condition as an occupational disease was unlawful as regards, in particular, the procedure for adopting the inquiry report of 11 November 2009. In that regard, it was found, in paragraph 68 above, that, even if it were accepted that that report had led, inter alia, to the first and second procedures for recognition of the applicant’s medical condition as an occupational disease being flawed, that irregularity would have been sufficiently remedied by the judgment [confidential], which acknowledged that that report was incomplete and manifestly incorrect.
97      In the light of those considerations, the action must be dismissed in its entirety, without there being any need to rule either on the inadmissibility of certain pleas raised by the ECB or on the applicant’s request, referred to in paragraph 36 above, for the adoption of a measure of organisation of procedure seeking the production of all the documents to which she was refused access.
In that regard, the applicant merely requests the adoption of that measure without explaining how those documents might have an influence on the examination of her action and, in any event, in view of the pleas she raises in support of her claims for damages, it must be held that those documents are not such as to have a bearing on the Court’s assessment.
Costs
98      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. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the ECB.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders BZ to pay the costs.
Kanninen
Jaeger
Półtorak
Delivered in open court in Luxembourg on 8 December 2021.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.
1      Confidential data omitted.