ORDER OF THE GENERAL COURT (Second Chamber)
27 February 2019
(*)
(Civil service — Staff of the EIB — Prolonged or repeated absence on account of a non-occupational accident or disease — Remuneration reduced after 12 months of absence — Article 33 of the EIB Staff Regulations — Procedure for recognition of the occupational origin of the disease)
In Case T‑870/16,
Virna Miserini Johansson,
member of the staff of the European Investment Bank, residing in Luxembourg (Luxembourg), represented by A. Senes, lawyer,
applicant,
v
European Investment Bank (EIB), represented by T. Gilliams, G. Faedo and K. Carr, acting as Agents, and by J. Currall and B. Wägenbaur, lawyers,
defendant,
APPLICATION on the basis of Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union and seeking, primarily, annulment of a decision of the EIB dated 25 January 2016 and compensation in respect of the material and non-material harm associated with that decision and, in the alternative, solely
compensation in respect of the material and non-material harm claimed in the main action and reimbursement of the costs incurred in connection with the health problems developed as a result of the severe stress suffered by the applicant and which are allegedly not reimbursed by the EIB’s health insurance scheme,
THE GENERAL COURT (Second Chamber),
composed of M. Prek, President, E. Buttigieg and B. Berke (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        The applicant, Ms Virna Miserini Johansson, has been employed by the EIB since 1 September 1997.
2        The applicant has been on continuous sick leave since 12 January 2015. She states in the application that she became ill following events which occurred in November 2014 within the department where she was employed and that she considers herself to have been the victim of harassment.
3        By letter of 25 January 2016, the EIB informed the applicant that Article 33 of its Staff Regulations was to be applied having regard to her prolonged absence due to sickness and that, consequently, she would receive only 75% of her salary as of 1 February 2016.
4        By letter of 2 February 2016, the applicant expressed her disagreement as regards the application of Article 33 of the EIB’s Staff Regulations and requested to be paid the entirety of her remuneration as of February 2016, on the ground that her sick leave was due to a disease of occupational origin. By letter of 16 February 2016, the EIB stated that the measure was based on Article 33(b) of its Staff Regulations, that no exception was provided for unless a link was established between the applicant’s state of health and her occupation, in accordance with the insurance policy against the risks of occupational or private accident and occupational illness, bearing number 730.326.260 (‘the insurance policy’), that she had concluded with the insurance company concerned (‘the insurance company’), and that such was not the situation in the present case).
5        By emails dated 21 April 2016 and 3 May 2016, the EIB offered to meet the applicant to explain the application of Article 33 of its Staff Regulations to her and the procedure to follow in the event of occupational disease.
6        On 9 May 2016, the EIB informed the applicant that, following her meeting with the bank’s medical adviser on 20 April 2016, the latter had recommended a six-month period of temporary full time incapacity, running from 1 June 2016.
7        By letter of 19 May 2016, the applicant called on the President of the EIB to review the EIB’s decision of 25 January 2016 and to order the ‘reintegration’ of her salary in its entirety as of February 2016.
8        By letter of 30 May 2016, the EIB confirmed its position expressed in the letter of 16 February 2016. It pointed out that, at the point when the applicant had reached 12 months of continuous sick leave, the occupational nature of her disease had not been established and that there had been no claim to that effect. In that regard, it stated that the bank’s employees who wished to prove the occupational origin of their disease were to file a claim with the insurance company and that the ensuing procedure could lead to the retrospective payment of the part of the remuneration which had not been paid, were the occupational origin of the disease to be established. In addition, it invited the applicant,
as it had already in several emails sent to her, to contact it to obtain, if necessary, explanations on the claim to be submitted to that company.
9        On 30 August 2016, the applicant, through her lawyer, launched a conciliation procedure under Article 41 of the EIB Staff Regulations, seeking confirmation of the occupational origin of her disease and that her full salary be ‘restored’ as of February 2016.
10      By letter of 9 September 2016, the EIB replied to the applicant to the effect that the conciliation request was premature, since a finding that she suffered from an occupational disease, made by medical experts appointed by the insurance company, was a mandatory prerequisite. In that regard, it stated that the applicant had not followed the procedure set out in paragraph 10 of the insurance policy. It concluded that, until that company had determined, at the applicant’s request, that her disease was occupational in origin, the EIB maintained its position concerning the application of Article 33(b) of its Staff Regulations.
11      On 25 October 2016, the applicant filed a claim with the insurance company seeking recognition of the occupational origin of her disease.
12      By letter of 21 November 2016, the EIB informed the applicant that, following the applicant’s medical visit of 9 November 2016 to the EIB medical service and after examination of her file, the bank’s medical adviser recommended a new six-month period of temporary full time incapacity running from 1 December 2016.
Procedure and forms of order sought
13      By application lodged at the Registry of the General Court on 7 December 2016, the applicant brought the present action.
14      The defence was lodged at the Court Registry on 30 May 2017. The reply and the rejoinder were lodged at the Court Registry on 5 September 2017 and 19 January 2018 respectively.
15      By letters of 12 April 2018 and 31 August 2018 and pursuant to Article 85(3) of the Rules of Procedure of the General Court, the applicant submitted new offers of evidence, on which the EIB submitted its observations within the prescribed periods.
16      The applicant claims that the Court should:
–        primarily:
–        annul the EIB’s decision of 25 January 2016;
–        order the EIB to calculate retrospectively and restore the applicant’s full salary rights and all relevant accessories, including full pension rights and Optional Supplementary Provident Scheme (OSPS) contributions;
–        order the EIB to reimburse the amount corresponding to the loss of salary (provisionally evaluated at EUR 24 000 as of 31 December 2016);
–        order the EIB to pay the applicant damages for the non-material harm she has suffered, provisionally evaluated at EUR 5 000;
–        to appoint an expert to determine the exact amounts of the abovementioned heads of claim for damages, should the General Court so decide;
–        order the EIB to pay the costs of the present proceedings, including legal fees and expertise fees (as applicable);
–        to grant all such further relief as the General Court considers just.
–        in the alternative, order the EIB, first, to make good harm identical to that mentioned above in the principal claim, and, secondly, to reimburse the applicant for the medical and psychological costs incurred in connection with the health issues developed due to the severe stress which she suffered and which are not reimbursed by the EIB’s health insurance scheme.
17      In the reply, the applicant claims that the Court should:
–        reject the statement in defence lodged by the EIB;
–        order the designation of an expert, a doctor specialist, to check that the EIB pays all the costs, including those of the applicant;
–        order, in accordance with Article 66 et seq. of the Rules of Procedure, the hearing of each of the six witnesses listed in the reply;
–        order the EIB to pay all the costs and expenses in relation to the designation of the expert mentioned at point 48 of the application, those in relation to the designation of the expert mentioned in the previous paragraph and all the expenses connected with the summoning of the witnesses.
18      The EIB contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicant to pay the costs.
Law
19      Under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where an action is manifestly inadmissible or manifestly lacking any foundation in law, 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.
20      In the present case, the Court considers that it has sufficient information from the documents before it and has decided, pursuant to Article 126 of the Rules of Procedure, to give a decision on the action without taking further steps in the proceedings, even though the applicant has requested a hearing (order of 7 June 2016, Beele Engineering v EUIPO (WE CARE), T‑220/15, not published, EU:T:2016:346, paragraph 12 and the case-law cited).
21      In the present case, the applicant has brought, primarily, a claim for annulment to which claims for damages are attached and, in the alternative, a claim for damages exclusively.
Preliminary observations
22      First, as regards the applicant’s request set out in point 27 of the reply, as part of her arguments in support of her heads of claim, seeking that the sums unpaid by the EIB be allocated to her by way of interim relief, it must be pointed out that only the court hearing the application for interim measures is competent to examine such a request and it must be submitted by separate document in accordance with Article 156(5) of the Rules of Procedure.
23      Secondly, the claim by the applicant in the reply seeking the rejection of the EIB’s statement in defence must be rejected as inadmissible, inasmuch as that defence was lodged in compliance with the formal requirements laid down in the Rules of Procedure and as, in any event, the applicant has submitted no arguments in support of that head of claim (see, to that effect, judgment of 10 May 2012, Amador López v OHIM (AUTOCOACHING), T‑325/11, not published, EU:T:2012:230, paragraph 47).
24      Thirdly, there are two considerations to be noted as regards the applicant’s arguments concerning the harassment to which she considers herself to have been subject.
25      In the first place, the acts of harassment alleged by the applicant cannot be regarded as proven, inasmuch as the applicant did not initiate the internal procedure provided for in such a situation. It is for the person who considers himself to have been subject to harassment to submit a request to the administration seeking that such conduct be ceased. It is only the express or implied rejection of that request which would constitute a decision adversely affecting the person concerned, which he could challenge, having followed the applicable administrative procedure, before the EU judicature (see, to that effect,
judgment of 21 July 2016, De Nicola v EIB, F‑100/15, EU:F:2016:167, paragraphs 90 and 91).
26      In the second place, in so far as the applicant claims that the EIB failed to comply with its duty of care on the ground that it did not have any mechanisms in place for the prevention of harassment, it must be held that such arguments cannot succeed in connection with the claim for annulment of the decision of the EIB dated 25 January 2016, since the applicant has not explained how those preventative mechanisms could have affected the legality of that decision. Furthermore, if it is assumed that the applicant is claiming breach of administrative duty, it must be pointed out that it is settled case-law that, for an EU institution or body to incur liability for unlawful conduct, a series of conditions must be met, namely the illegality of the allegedly wrongful conduct, the actual harm suffered, and the existence of a causal link between the alleged conduct and the damage alleged to have been suffered (see, to that effect, judgment of 1 June 1994, Commission v Brazzelli Lualdi and
Others, C‑136/92 P, EU:C:1994:211, paragraph 42 and the case-law cited) and that, where one of those conditions has not been met, the action must be dismissed in its entirety without its being necessary to examine the other conditions (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 14). In the present case, since the acts of harassment alleged by the applicant have not been established, the latter has not proved that she suffered actual harm in connection with such events and, moreover, in connection with a purported failure to comply with obligations regarding the implementation of a strategy for the prevention and management of harassment cases.
The main heads of claim
27      Primarily, the applicant has brought a claim seeking annulment of the decision of the EIB dated 25 January 2016 and claims for damages.
28      By her arguments, the applicant claims infringement of Article 33 of the EIB’s Staff Regulations, which is the legal basis for the EIB’s decision of 25 January 2016
whose annulment is sought. She also submits that the procedure for recognition of occupational disease laid down by the EIB is not applicable to her, in particular because that procedure was laid down in a contract to which she is a third party. She states that there is an obvious conflict of interests by reason of the fact that the insurance company which should compensate her in the event of a finding of occupational disease is responsible for determining the link between her disease and her occupation.
29      In addition, the applicant claims that her disease was found to be an occupational disease by several doctors who examined her.
30      The Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of an action on the substance without a prior ruling on its admissibility (see, to that effect, order of 28 May 2013, Marcuccio v Commission, F 67/11, EU:F:2013:65, paragraph 36). In the circumstances of the present case, the Court considers it necessary, in the interests of procedural economy, to begin by examining the merits of the claim for annulment, without first ruling on its admissibility, inasmuch as that claim is in any event manifestly unfounded, for the reasons set out below (see, to that effect, judgment of 14 September 2015, Brouillard v Court of Justice, T 420/13, not published, EU:T:2015:633, paragraph 19).
31      In the present case, the EIB informed the applicant by letter of 25 January 2016 that, since she had been on sick leave for a continuous 12-month period, her remuneration would be reduced by 25% for the next six months pursuant to Article 33 of its Staff Regulations. It is that decision which is the object of the present claim for annulment.
32      Article 33 of the EIB Staff Regulations provides, for members of staff in the applicant’s situation, that ‘in the event of prolonged or repeated absence otherwise than as a result of occupational disease or accident arising in the course of employment, the remuneration of the official concerned shall be … full remuneration for the first twelve months’ absence; 75% of their full remuneration for the following six months’. It must be noted that that provision concerns a situation in which the disease is other than occupational in origin and, as stated by
the applicant in her exchanges with the EIB before the present action was brought, Article 33a of that regulation provides that members of staff of the EIB are insured by the EIB against accidents arising in the course of employment and the consequences of occupational disease contracted in the service of the bank.
33      Under Article 33a of its Staff Regulations, the EIB took out the insurance policy referred to in paragraph 4 above.
34      Article 10 of the insurance policy provides that ‘any insured who avails [himself] of [his] rights under this contract due to occupational disease must make a declaration to the [EIB] and the [insurance company] from the early stage of the disease or the date of the first medical report.’ The same provision also states that ‘the declaration shall specify the nature of the condition and must be accompanied by medical certificates’.
35      It is clear from the insurance policy that the insurance company is responsible for settling the issue of whether the insured person suffers from an occupational disease. That company’s medical adviser must make his own assessment of the insured persons state of health and must decide whether and to what extent the pathology from which the insured person in question suffers is occupational in origin, in particular after examining the certificates submitted by the insured person and having gathered from the EIB all the information concerning the professional environment in which the insured person could have developed his or her disease.
36      Contrary to what is claimed by the applicant, it is neither for private doctors nor for the EIB’s medical adviser to establish the occupational origin of her disease. Only the insurance company’s medical adviser may determine whether the applicant’s state may be characterised as that of an ‘occupational disease’.
37      Thus, without there being any need to examine their admissibility, it must be held that the certificates included in the file before the Court by the applicant may be submitted, by way of evidence, to the insurance company’s medical adviser, but cannot
be attributed the status of a
formal conclusion.
Even if their contents show a link between the disease and the applicant’s occupation, it must be acknowledged that they were drawn up on the basis exclusively of information provided by the applicant. Moreover, the two certificates attached to the application date from November 2016 and in no way prove that the applicant suffered from an occupational disease on 25 January 2016.
38      In the absence of a decision on the occupational origin of the applicant’s disease which has been made following the assessment mentioned in paragraph 35 above, the reduction in her remuneration announced in the letter of 25 January 2016 was required under
Article 33(b) of the EIB Staff Regulations. Article 33a of those regulations, for its part, provides that staff are to be insured against the consequences of occupational disease. The applicant was thus deemed to be informed about the application of those provisions to her situation.
39      It must also be pointed out that the EIB’s decision of 25 January 2016 implements the rules in the EIB Staff Regulations. The applicant’s criticisms regarding the procedure to be followed with the insurance company, namely the biased nature of that procedure, the fact that the insurance policy does not allow her disease to be recognised as an ‘occupational disease’ or the fact that she did not receive a copy of that policy or the length of the procedure cannot be profitably relied upon in the present claim for annulment, but could be in a potential subsequent action when the procedure initiated on 25 October 2016 has run its course.
40      Moreover, the applicant, in invoking the Charter of Fundamental Rights of the European Union at point 46 of the application without explaining how it relates to her claims or claiming infringement of a specific provision or principle, has not rendered it feasible for the Court to examine the merits of that point.
41      Consequently, inasmuch as it seeks annulment of the EIB’s decision of 25 January 2016, the action is manifestly unfounded.
42      As regards the claims for damages made in the main heads of claim, it must be recalled that where a claim for damages is closely related to a claim for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the claim for damages (judgment of 23 October 2013, Gomes Moreira v ECDC, F‑80/11, EU:F:2013:159, paragraph 132).
43      In the present case, the claims seeking reimbursement of the loss of remuneration and the rights accessory to it and the claim for compensation in respect of non-material harm are closely linked to the claim seeking annulment of the EIB’s decision of 25 January 2016. Since the latter has been rejected as manifestly unfounded, the expressly set out claims for damages must likewise be rejected.
44      The claim for annulment brought primarily must be rejected as manifestly unfounded, as must, as a result, the claims for damages, which are closely linked to the claim for annulment.
45      In respect of the claim for all such further relief as the General Court considers just, it must be declared manifestly inadmissible inasmuch as the subject
matter of the claim is not defined with sufficient precision for the purposes, in particular, of enabling the EIB to effectively submit its pleas in defence vis-à-vis that claim.
The heads of claim made in the alternative
46      In the alternative, the applicant requests that her action be treated as a claim for damages exclusively. She requests that the Court order the EIB to reimburse her for the loss of remuneration due to the application of the Staff Regulations, which provide for a reduction in remuneration in the event of a prolonged absence due to illness, other than in cases of occupational disease. She seeks the restoration of all her rights, including her pension rights and contributions to the OSPS, and the payment of damages in respect of the non-material harm she allegedly suffered, assessed provisionally at EUR 5 000, plus any further relief.
47      In addition, the applicant requests the Court to order the EIB to reimburse the medical and psychological costs incurred in connection with the health issues developed due to the severe stress she suffered and which are not reimbursed by the EIB health insurance scheme.
48      First, the claims for damages mentioned in paragraph 46 above seek primarily to recover the part of the applicant’s remuneration which was not paid,
under Article 33 of the EIB Staff Regulations, on account of her prolonged absence due to disease not confirmed as occupational in origin. Furthermore, it must be pointed out that the claim for compensation in respect of the non-material harm suffered by the applicant, inasmuch as it is identical to that contained in the claim for annulment, is deemed to seek, in the absence of any further details,
compensation in respect of the non-material harm linked to that loss of remuneration.
49      Secondly, the applicant has requested the insurance company to recognise the occupational nature of her disease
in order to recover the part of her remuneration which has not been paid since 1 February 2016 and that procedure, initiated with the insurance company, has not yet reached a conclusion.
50      In that regard, as the EIB points out, if the insurance company recognises that the applicant’s disease is occupational, she will be reimbursed all her withheld salary and if the request for recognition is rejected, that will give rise to a decision refusing such reimbursement which the applicant will be able to challenge in a future conciliation procedure or court proceedings or both. That statement has not been disputed by the applicant.
51      Therefore, the Court cannot order the EIB to pay sums whose payment is conditional on the outcome of a procedure which the applicant has initiated in order to obtain recognition of the occupational origin of her disease and which has not yet given rise to a decision.
52      Accordingly, in the absence of a decision on the occupational origin of the applicant’s disease, it must be held, as the EIB contends, that the claim for damages referred to in paragraph 46 above is premature, without it being necessary to examine the other pleas of inadmissibility raised by the EIB.
53      As regards the request for reimbursement of the medical and psychological costs which are not reimbursed by the EIB health insurance scheme, the Court cannot rule on that matter before a decision in that respect on the part of the insurance company. The insurance policy provides, in Article 11 thereof, for reimbursement, up to a certain threshold, of the medical costs necessitated by the occupational disease. Therefore, it is possible that
if the applicant’s disease is recognised to be of occupational origin she will obtain reimbursement of those costs. Moreover, it must be added, the applicant has not adduced any evidence substantiating those costs.
54      Consequently, the claims for damages submitted in the alternative are premature and therefore manifestly inadmissible.
55      Having regard to the foregoing, the action must be rejected as in part manifestly unfounded and in part manifestly inadmissible.
56      Furthermore, having regard to the above, it is unnecessary to rule on the admissibility of the offers of evidence submitted by the applicant in her letters of 12 April 2018 and 31 August 2018, pursuant to Article 85(3) of the Rules of Procedure, or even to rule on the applicant’s requests for interim measures concerning the hearing of a number of witnesses and the designation of experts.
Costs
57      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.
58      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 (Second Chamber)
hereby orders:
1.      The action is dismissed.
2.      Ms Virna Miserini Johansson shall pay the costs.
Luxembourg, 27 February 2019.
E. CoulonM. Prek
Registrar
President
*      Language of the case: English.