JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

28 September 2011





Case F-13/10





Carlo De Nicola

v

European Investment Bank (EIB)

(Civil service – Staff of the European Investment Bank – Assessment – Promotion – Action for damages – Admissibility)

Application: brought under Article 270 TFEU and Article 41 of the Staff Regulations of the EIB, in which Mr De Nicola seeks, in particular, first, annulment of the decision of 23 September 2009 adopted by the Appeals Committee of the European Investment Bank, second, annulment of his staff report for 2008, third, annulment of the promotion decisions of 18 March 2009, fourth, annulment of the decision refusing promotion, and, fifth, an order that the EIB pay compensation for the material and non-material damage which he claims to have suffered.

Held: The action is dismissed. The applicant is ordered to bear his own costs and to pay half the costs of the EIB. The EIB is ordered to bear half its own costs.

Summary

1. Officials – Staff of the European Investment Bank – Actions – Claims directed against the opinion of the Appeals Committee – Admissibility – Effect

(Staff Regulations of the European Investment Bank, Art. 41)

2. Officials – Staff of the European Investment Bank – Actions – Action directed against a measure of general application – Guide to staff reports – Inadmissibility

(Staff Regulations of Officials, Art. 90; Staff Regulations of the European Investment Bank, Art. 41)

3. Officials – Staff of the European Investment Bank – Actions – Time limits – Requirement to act within a reasonable period – Point from which time begins to run

(Staff Regulations of Officials, Art. 90; Staff Regulations of the European Investment Bank, Art. 41)

4. Officials – Staff of the European Investment Bank – Actions – Action directed against the failure to designate a representative in the Conciliation Board – Point from which time begins to run

(Staff Regulations of Officials, Art. 90; Staff Regulations of the European Investment Bank, Art. 41)

5. Officials – Staff of the European Investment Bank – Actions – Application by analogy of Article 91(1) of the Staff Regulations of Officials – Unlimited jurisdiction

(Staff Regulations of Officials, Art. 91(1); Staff Regulations of the European Investment Bank, Art. 41)

6. Officials – Staff of the European Investment Bank – Actions – Action for damages – Admissibility of an action preceded by a claim for compensation submitted to the Appeals Committee

(Staff Regulations of Officials, Arts 90 and 91; Staff Regulations of the European Investment Bank, Art. 41)

7. Officials – Actions – Action for annulment not brought within the time limit – Action for damages aiming to achieve the same result – Inadmissibility

8. Officials – Staff of the European Investment Bank – Annual staff report – Judicial review – Limits

(Staff Regulations of Officials, Art. 91)

1. Claims directed against the opinion of the staff assessment Appeals Committee set up within the European Investment Bank do not have any independent content and have the effect of bringing before the Union judicature the assessment report against which such an administrative appeal has been lodged. More generally, the decision of the Appeals Committee has no independent content in relation to all the decisions challenged before that committee.

(see para. 44)

See:

8 March 2011, F-59/09 De Nicola v EIB, para. 131 and the case-law cited therein

2. Under Article 41 of the Staff Regulations of the European Investment Bank only disputes between the Bank and individual members of staff may be brought before the Union courts. While members of staff may, under certain conditions, in the context of an individual action, plead the illegality of measures of general application, they may not directly seek the annulment of those measures. There is, moreover, a certain analogy here with the provisions of Article 90 of the Staff Regulations of Officials, which provide that, in order to be considered to be an act adversely affecting an official, a measure must in particular contain a definitive position adopted by the administration in respect of the official’s individual situation.

In that respect, a Guide to staff reports drawn up by the Bank, which is designed to produce legal effects in respect of a group of persons, namely the staff of the Bank, viewed in general, abstract terms, constitutes a measure of general application. Thus, claims seeking its annulment cannot be regarded as relating to individual disputes as provided for in Article 41 of the Staff Regulations of the EIB. The Guide cannot therefore be the subject of a direct action by a member of the Bank’s staff.

(see paras 54, 55)

See:

16 July 1981, 153/79 Bowden and Others v Commission, para. 13

6 March 2001, T-192/99 Dunnett and Others v EIB, paras 61 and 62 and the case-law cited therein; 16 December 2004, T-120/01 and T-300/01 De Nicola v EIB, para. 132; 29 November 2006, T-35/05, T-61/05, T-107/05, T-108/05 and T-139/05 Agne-Dapper v Commission, para. 56

3. The conciliation procedure provided for in Article 41 of the European Investment Bank’s Staff Regulations and the special appeal procedure for annual assessments laid down by an administrative notice from the Bank pursue the same aim as the mandatory pre-litigation procedure established by Article 90 of the Staff Regulations of Officials. Those procedures too are designed to allow disputes to be settled amicably, by giving the Bank the possibility of reversing the contested measure, and by giving the staff member concerned the option of accepting the reasons on which the contested measure is based and, where appropriate, not initiating proceedings. Furthermore, the Bank’s rules do not stipulate how these two procedures are to be coordinated. With regard to assessment reports, it is left to the staff member concerned to decide whether to use one procedure, or both, in parallel or successively, subject to compliance with the indicative time limit laid down by the relevant administrative notices for applications for referral to the Appeals Committee.

In that context, a period of three months from the date on which the employee concerned receives notification of the act adversely affecting him or, where appropriate, from the negative outcome of the appeal procedure or the failure of the conciliation procedure must as a rule be regarded as reasonable, provided, however, that, first, any appeal procedure was conducted within a reasonable period and, second, that the person concerned submitted any request for conciliation within a reasonable period of receiving notification of the act adversely affecting him. More precisely, the establishment of these two optional procedures, by Article 41 of the Bank’s Staff Regulations and the abovementioned staff notices respectively, which are binding on the Bank, necessarily leads to the conclusion that where an employee successively requests the initiation of the appeal procedure and then the conciliation procedure, the time limit for bringing an action before the Civil Service Tribunal starts to run only from the point when the latter procedure has failed, provided that the employee submitted his request for conciliation within a reasonable period of the completion of the appeal procedure.

(see paras 61, 62)

See:

De Nicola v EIB, paras 136 and 137 and the case-law cited therein

4. There is no internal rule of the European Investment Bank which lays down the time limit within which staff of the Bank should bring proceedings before the courts if the Bank fails to initiate the conciliation procedure by omitting to designate one of the members of the Conciliation Board provided for in Article 41 of the Staff Regulations of the EIB.

However, given that the Bank cannot lawfully refuse to initiate the conciliation procedure and that it would be prejudicial to the requirements of legal certainty if, in the absence of any written rule, the time limit for challenging measures taken by the Bank varied depending on the type of procedure involved, it must be considered, on the basis of Article 90 of the Staff Regulations of Officials, that where a member of the Bank’s staff asks for disputes other than those relating to disciplinary sanctions to be referred to the Conciliation Board and where the Bank omits to designate its representative on that Board, that omission gives rise to an implied decision rejecting the request for conciliation within a period of four months following the Bank’s receipt of that request. The staff member then has a reasonable period of three months, which starts to run from the date when the implied decision arose, to bring proceedings before the Tribunal.

(see paras 74, 75, 77, 78)

See:

De Nicola v EIB, para. 137 and the case-law cited therein; 28 June 2011, F-49/10 De Nicola v EIB, para. 71

5. It is necessary to apply by analogy to actions by members of the European Investment Bank’s staff the rule resulting from Article 91(1) of the Staff Regulations of Officials, according to which the judicature has no jurisdiction where the action before it is not directed against a measure adopted by the administration to reject the applicant’s claims.

(see para. 91)

See:

30 November 2009, F-86/08 Voslamber v Commission, paras 224 to 239 and the case-law cited therein

6. In the context of the pre-litigation procedure the administration must not interpret complaints in a restrictive manner, but must, on the contrary, examine them with an open mind.

In that regard, in the absence of any information in the Staff Regulations of the European Investment Bank concerning the conditions for bringing claims for compensation before the courts, it must be considered that in submitting a claim for compensation to the Bank’s Appeals Committee the applicant has, in a broader context, necessarily submitted a prior claim for compensation to the Bank.

(see paras 92, 95)

See:

23 April 2002, C-62/01 P Campogrande v Commission, para. 33 and the case-law cited therein

7. An official who has failed to contest within the prescribed period a decision of the appointing authority which has adversely affected him may not circumvent the consequences of his being out of time by bringing an action for damages based on the purported unlawfulness of that decision. An applicant cannot therefore seek, by means of a claim for compensation, to obtain the same outcome as he would have obtained had he succeeded in an action for annulment which he failed to bring in good time. Moreover, while an official is entitled, without seeking the annulment of an act adversely affecting him, to bring, on the basis of the alleged unlawfulness of that act, an action seeking only compensation for the harm that act has caused him, such claims for compensation are admissible only if they have been submitted within the time limits for appeals applicable to the act in question.

(see para. 97)

See:

15 December 1966, 59/65 Schreckenberg v Commission; 14 February 1989, 346/87 Bossi v Commission

21 February 2008, F-4/07 Skoulidi v Commission, paras 50 and 70

8. It is not for the Union judicature to substitute its assessment for that of the persons responsible for staff appraisal. The European Investment Bank, like other institutions and bodies of the Union, enjoys wide discretion in appraising the work of members of its staff. Judicial review by the Union judicature of the assessments contained in the annual performance appraisal of a member of the Bank’s staff relates only to possible procedural irregularities, manifest factual errors in such assessments and any misuse of power.

(see para. 108)

See:

Voslamber v Commission, para. 126