ORDER OF THE GENERAL COURT (Tenth Chamber)
13 January 2025 (*)
( Civil service – EIB staff – Complaint of psychological harassment – Administrative inquiry – Final report of the investigation panel – Manifest inadmissibility – Decision confirming the findings of the investigation report and recommending the reopening of disciplinary proceedings for malicious complaint – Withdrawal of the contested measure – No need to adjudicate )
In Case T‑160/24,
LU,
represented by B. Maréchal, lawyer,
applicant,
v
European Investment Bank (EIB), represented by K. Carr and J. Pawlowicz, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia, President, M. Jaeger (Rapporteur) and P. Nihoul, Judges,
Registrar: V. Di Bucci,
having regard to the measure of organisation of procedure of 9 October 2024 inviting the parties to state their views on whether the applicant’s interest in bringing proceedings continued to exist against the decision of 21 December 2023 following the adoption of the decision of 19 April 2024 and the replies of the parties lodged at the General Court Registry on 16 and 25 October 2024,
makes the following
Order
1        By his action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicant, LU, seeks, first, in essence, the annulment (i) of the decision of the European Investment Bank (EIB) of 21 December 2023 (‘the contested decision’) and (ii) of the report of 22 March 2023 of the Investigation Panel appointed under the investigation procedure laid down by the Dignity at Work Policy (‘the report at issue’) and, secondly, compensation for the damage which he claims to have suffered as a result.
Background to the dispute
2        In 2017, the applicant first lodged a complaint with the Investigation Panel appointed under the investigation procedure laid down by the EIB’s Dignity at Work Policy, alleging harassment against him by his line manager.
3        By letter of 31 January 2018, the President of the EIB rejected that complaint, while repeating the Investigation Panel’s recommendation, addressed to the Personnel Directorate of the EIB, that it was important to ensure that the successor of the applicant’s line manager was not influenced negatively against the applicant on account of the investigation procedure which he had initiated in 2017.
4        On 26 July 2018, the Office of the Chief Compliance Officer of the EIB decided to open a formal administrative inquiry against the applicant relating to illegal recordings of professional conversations, threatening behaviour and insubordination towards his supervisors, and false claims regarding his language knowledge. That inquiry led to the submission of a final report on 12 June 2019.
5        By email of 29 August 2018, the applicant again lodged a complaint with the Investigation Panel, which he formalised with the submission of a memorandum on 18 September 2018.
6        That new complaint, relating to events occurring after January 2018, was directed against his former line manager, against a director and against his new line manager.
7        A final report of the Investigation Panel was drawn up on 13 May 2020. It stated that there was no evidence of harassment, found the applicant’s complaint to be malicious and abusive, and recommended that a disciplinary procedure be initiated against him.
8        By decision of 26 May 2020, the President of the EIB endorsed the report of 13 May 2020.
9        By letter of 8 January 2021, the EIB informed the applicant of its intention to initiate disciplinary proceedings against him, which was confirmed to him on 5 February 2021, after he had been heard.
10      The decision of 26 May 2020 was annulled by the judgment of 2 February 2022, LU v EIB (T‑536/20, not published, EU:T:2022:40), on the grounds of a breach of the applicant’s right to be heard.
11      By decision of 28 March 2022, the President of the EIB suspended the disciplinary proceedings pending against the applicant.
12      On 28 April 2022, the EIB appointed a new Investigation Panel which completed its work on 22 March 2023 by adopting the contested report, concluding that the facts reported in the complaint lodged by the applicant did not constitute psychological harassment.
13      On 5 May 2023, the applicant sent the President of the EIB his written observations on the contested report.
14      By decision of 21 December 2023, the President of the EIB adopted the contested decision, in which (i) he endorsed the findings of the contested report and concluded that the applicant had not been the victim of psychological harassment, (ii) he concluded that the applicant’s complaint was malicious and abusive and (iii) he informed the applicant of his intention to resume the disciplinary proceedings brought against him.
15      By letter of 26 January 2024, the applicant submitted his observations on the EIB’s intention to resume the disciplinary proceedings against him and maintained that he had not been heard as regards the malicious nature and abusive use of his complaint.
16      By a decision contained in a letter of 22 February 2024 (‘the decision of 22 February 2024’), the new President of the EIB (i) informed the applicant that, even if she considered that his right to be heard had been fully respected, she would hear him as a precautionary measure regarding the malicious nature and abusive use of his complaint, (ii) explained to the applicant that his file would be reassessed taking into account his observations and (iii) informed the applicant that, pending that reassessment, all the legal effects of the contested decision were suspended and that, after hearing his point of view, a new decision would be adopted.
17      On 11 March 2024, the applicant lodged his observations on the decision of 22 February 2024.
18      The applicant brought the present action on 20 March 2024.
Facts subsequent to the lodging of the present action
19      On 19 April 2024, the President of the EIB notified the applicant of a new final decision (‘the second decision’), which concluded, in the first place, that none of the three members of staff of whom he had complained had committed acts constituting harassment against him and, in the second place, that his complaint had to be regarded as malicious and abusive. The President of the EIB added that that decision replaced the contested decision, which was withdrawn in its entirety and no longer produced legal effects, and that she recommended resuming the disciplinary proceedings which had been suspended since 28 March 2022.
20      On 16 July 2024, the applicant brought an action against the second decision, registered as Case T‑365/24.
Forms of order sought
21      The applicant claims that the Court should:
–        annul the contested decision and the contested report;
–        declare that his use of the investigation procedure under the EIB Dignity at Work Policy is legitimate and not malicious;
–        annul the disciplinary proceedings initiated by the President of the EIB on 8 January 2021;
–        order the EIB to pay him the sum of EUR 150 000 in compensation for the non-material damage he has suffered;
–        order the EIB to pay him the sum of EUR 200 000, calculated provisionally, by way of compensation for the material damage he has suffered;
–        order the EIB to pay the costs of the present proceedings, provisionally fixed at EUR 35 000.
22      By separate document lodged at the General Court Registry on 25 June 2024, the EIB raised a plea of inadmissibility on the basis of Article 130(1) of the Rules of Procedure of the General Court, in which it claims that the Court should:
–        dismiss the action as manifestly inadmissible;
–        order the applicant to pay the costs.
23      On 19 August 2024, the applicant lodged his observations on that plea of inadmissibility (‘the observations of 19 August 2024’), in which he claims that the Court should:
–        dismiss the plea of inadmissibility as unfounded;
–        order the EIB to pay the costs.
Law
Subject matter of the action
24      Under Article 131(1) of the Rules of Procedure, if the Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order.
25      The Court, considering that it has sufficient information available to it from the material in the file, has decided to give a ruling without taking further steps in the proceedings.
26      It should be borne in mind that, according to settled case-law, the interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate, with the result that the court hearing the case may raise of its own motion and at any stage of the proceedings the objection that a party has no interest in maintaining his or her application, by reason of the occurrence of a fact subsequent to the date on which the document instituting the proceedings was lodged (see order of 22 December 2023, TB v ENISA, T‑322/21, not published, EU:T:2023:877, paragraph 23 and the case-law cited).
27      Furthermore, according to the case-law, an applicant retains a legal interest in bringing proceedings against an act which has been repealed since, unlike a withdrawal, a repeal allows, for the addressees of the act concerned, the effects produced by that act to continue for the period during which that act has been in force (see judgment of 13 December 2012, AX v ECB, F‑7/11 and F‑60/11, EU:F:2012:195, paragraph 77 and the case-law cited).
28      In the present case, it is sufficient to note that, in response to a question from the Court inviting them to adopt a position on whether the applicant’s interest in bringing proceedings continued to exist against the contested decision following the adoption of the second decision, the parties acknowledged that the second decision had led to the withdrawal of the contested decision in its entirety, with the result that the applicant no longer had any interest in bringing proceedings against that decision.
29      It follows that the present action has become devoid of purpose as regards the applicant’s first head of claim in so far as it seeks annulment of the contested decision and, therefore, that there is no longer any need to adjudicate on it.
30      As regards the applicant’s second head of claim, although he requests that the Court declare that his use of the investigation procedure provided for by the EIB’s Dignity at Work Policy was legitimate and not malicious, he then states, in the observations of 19 August 2024, that, in reality, he is asking the Court to annul the contested decision in so far as it finds that his use of that procedure was malicious.
31      Since the applicant has acknowledged that he no longer has an interest in bringing proceedings against the contested decision, there is no longer any need to adjudicate on his second head of claim.
32      As regards the applicant’s third head of claim, he submits, in the observations of 19 August 2024, that he is entitled to challenge the legality of the contested decision as regards the resumption of the disciplinary proceedings brought against him on 8 January 2021.
33      Since the applicant has acknowledged that he no longer has an interest in bringing proceedings against the contested decision, there is also no need to adjudicate on his third head of claim.
34      As regards the applicant’s fourth and fifth heads of claim, the EIB submits, in its plea of inadmissibility, that the manifest inadmissibility of the first, second and third heads of claim leads to the inadmissibility of the fourth and fifth heads of claim, by which the applicant seeks payment of damages in respect of the material and non-material damage which he claims to have suffered.
35      In the observations of 19 August 2024, the applicant states that he has demonstrated that the arguments put forward by the EIB in support of the inadmissibility of his first, second and third heads of claim should be rejected and, consequently, the arguments put forward in support of the inadmissibility of his fourth and fifth heads of claim should be rejected.
36      Since there is no longer any need to adjudicate on the applicant’s first, second and third heads of claim, there is no longer any need to adjudicate on his fourth and fifth heads of claim, since those heads of claim are confined to the present case and are without prejudice to the claim for damages submitted by the applicant in Case T‑365/24, LU v EIB, against the second decision which replaced the contested decision in its entirety.
Admissibility of the applicant’s first head of claim in so far as it seeks annulment of the contested report
37      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.
38      In the present case, the Court, taking the view that it has sufficient information from the material in the case file, has decided to give a decision without taking further steps in the proceedings.
39      In its plea of inadmissibility, the EIB submits that the report at issue is an intermediate measure which, according to settled case-law, is not open to challenge.
40      The applicant submits that the contested report is an act adversely affecting him.
41      According to settled case-law, the existence of an act adversely affecting an official is a necessary condition for any action brought by EIB staff to be admissible (see, to that effect, judgment of 7 February 2019, Arango Jaramillo and Others v EIB, T‑487/16, not published, EU:T:2019:66, paragraph 36 and the case-law cited).
42      Only acts producing binding legal effects likely directly and immediately to affect the interests of an applicant by bringing about a distinct change in his or her legal position as an official or staff member may be the subject of an action for annulment (see judgment of 12 May 2021, DF and DG v EIB, T‑387/19, not published, EU:T:2021:258, paragraph 17 and the case-law cited).
43      In the case of acts or decisions adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, in principle the sole measures susceptible of challenge are those which definitively lay down the position of the institution at the close of the procedure, to the exclusion of any provisional measures intended to serve as preparatory steps pending the final decision (see order of 26 June 2018, Kerstens v Commission, T‑757/17, not published, EU:T:2018:391, paragraph 26 and the case-law cited).
44      Acts preparatory to a decision do not adversely affect officials and it is only when an action is brought against a decision adopted upon the conclusion of a procedure that an applicant may challenge the legality of earlier acts that are closely linked to that decision. Although some purely preparatory measures may adversely affect an official inasmuch as they may influence the content of a subsequent challengeable act, those measures cannot be the subject of a separate action and must be challenged in the context of an action brought against that act (order of 26 June 2018, Kerstens v Commission, T‑757/17, not published, EU:T:2018:391, paragraph 27).
45      In the present case, the contested report contains merely a recommendation made to the President of the EIB and is therefore an intermediate measure. It does not prejudice the final position adopted by that person and cannot therefore be regarded as an act adversely affecting the applicant, as the contested decision alone has that effect.
46      Thus, the claim for annulment of the contested report set out in the applicant’s first head of claim must be rejected as manifestly inadmissible.
Costs
47      In his sixth head of claim, the applicant requests, in essence, that the EIB be ordered to pay the costs relating to the present proceedings and that those costs be fixed at a provisional amount of EUR 35 000.
48      First, it should be borne in mind that, in the decision ending the proceedings, the Court determines exclusively how the costs are to be allocated between the parties, without ruling on the amount of the costs. In the event of a dispute, the amount of the recoverable costs may be the subject of a separate action, governed by Article 170 of the Rules of Procedure, distinct from the decision on the allocation of the costs. Thus, taxation of costs may only take place following the judgment or the order ending the proceedings (see, to that effect, judgment of 6 February 2019, Karp v Parliament, T‑580/17, not published, EU:T:2019:62, paragraph 100).
49      The applicant’s claim that the costs of the present proceedings should be set provisionally at EUR 35 000 must therefore be rejected.
50      Secondly, 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, according to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own costs, or even that he or she is not to be ordered to pay any. Furthermore, under Article 135(2) of those rules, the General 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.
51      Thirdly, under Article 137 of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court.
52      In the present case, it should be noted that the decision of 22 February 2024 did not replace the contested decision. Thus, first, the applicant cannot be criticised for having brought the present action, since, at the time when the time limit for bringing it expired, the contested decision had not yet been replaced by the second decision. Secondly, the EIB could have adopted the second decision before the expiry of the time limit for bringing the present action.
53      In the light of those circumstances and in accordance with Article 135(2) and Article 137 of the Rules of Procedure, the EIB must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby orders:
1.      There is no longer any need to adjudicate on the first head of claim of LU in so far as it seeks annulment of the decision of the President of the European Investment Bank (EIB) of 21 December 2023 or on his second, third, fourth and fifth heads of claim.
2.      The action as to the remainder is dismissed.
3.      The EIB shall pay the costs.
Luxembourg, 13 January 2025.
V. Di Bucci
O. Porchia
Registrar
President
*      Language of the case: English.