JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

16 September 2013

Carlo De Nicola

v

European Investment Bank (EIB)

‛Appeal — Civil service — EIB staff — Appraisal — Promotion — 2008 appraisal and promotion year — Decision of the Appeals Committee — Scope of review — Assessment report — Plea of illegality — Reasonable period — Claim for setting aside — Claim for damages — Lis pendens’

Appeal:

against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 28 September 2011in Case F‑13/10 De Nicola v EIB [2011] ECR, seeking the setting aside of that judgment.

Held:

The judgment of the Civil Service Tribunal of the European Union (First Chamber) of 28 September 2011 in Case F‑13/10 De Nicola v EIB is set aside in so far as it rejects Mr Carlo De Nicola’s claim seeking the annulment of the decision of the Appeals Committee of the European Investment Bank (EIB). The remainder of the appeal is dismissed. The action brought by Mr De Nicola before the Civil Service Tribunal in Case F‑13/10 is dismissed. Mr De Nicola is to bear his own costs and is ordered to pay half of the costs incurred by the EIB relating to the proceedings before the Civil Service Tribunal and on appeal. The EIB is to bear half of its own costs relating to the proceedings before the Civil Service Tribunal and on appeal.

Summary

Actions brought by officials — Staff of the European Investment Bank — Action directed against a decision of the Appeals Committee concerning an official’s appraisal — Judicial review — Scope (Staff Regulations, Art. 91; Staff Regulations of the European Investment Bank, Art. 22) Appeals — Pleas in law — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the General Court of the assessment of the facts and the evidence — Possible only where the clear sense of the evidence has been distorted (Statute of the Court of Justice, Art. 58 and Annex I, Art. 11) Judicial proceedings — Application initiating proceedings — Formal requirements — Detailed statement of the pleas and arguments relied on before the Civil Service Tribunal (Statute of the Court of Justice, Art. 21; Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e)) EU law — Principles — Duty to act within a reasonable time — Administrative procedure — Judicial proceedings — Criteria for assessment (Charter of Fundamental Rights of the European Union, Arts 47 and 52(1); Staff Regulations of the European Investment Bank, Art. 41) Appeals — Pleas in law — Review by the General Court of the accuracy of the legal classification of facts established by the Civil Service Tribunal — Lawfulness (Statute of the Court of Justice, Art. 58 and Annex I, Art. 11) Actions brought by officials — Staff of the European Investment Bank — Action for annulment not brought within the time-limit — Action for damages seeking the same outcome — Inadmissibility Judicial proceedings — Objection of lis pendens — Same parties, subject-matter and submissions in two actions — Inadmissibility of the second action Appeals — Pleas in law — Review by the General Court of the Civil Service Tribunal’s refusal to order measures of organisation of procedure or inquiry — Scope (Art. 256(2) TFEU; Statute of the Court of Justice, Annex I, Art. 11)

Even if claims directed against a decision of the Appeals Committee of the European Investment Bank have the effect of bringing before the Union judicature an appraisal report against which an administrative appeal has been lodged, that fact is not, in itself, a reason for the Union court to confine itself to considering the claims against the contested report, or to omit entirely to review the validity of the Appeals Committee’s decision, in so far as the Committee has full power of review authorising it to substitute its assessments for those contained in the report, a power on which the Civil Service Tribunal, on the other hand, cannot rely. For the Appeals Committee wrongly to forego such a full review is tantamount to depriving the staff member concerned of a review procedure provided for in the EIB’s internal rules and thus adversely affects him, so that it must be amenable to review by the court of first instance. Moreover, in view of the Appeals Committee’s full power of review, which is therefore broader than that of the court as regards the assessments contained and marks awarded in the contested report, it is essential that the first instance court ascertain, albeit in the context of its limited review, whether and to what extent the Committee fulfilled its duty to conduct a full review in accordance with the applicable rules. It is precisely because of that full power of review that the legal effects of a decision of the Appeals Committee are not necessarily the same as those of an appraisal report which is subject to its review, and may, therefore, have a different adverse effect on the staff member concerned, the legality of which must be assessed by the court if the matter is brought before it. (see paras 42-43) See: T-7/98, T-208/98 and T-109/99 De Nicola v EIB [2001] ECR-SC I-A-49 and II-185, para. 132; T-178/00 and T-341/00 Pflugradt v ECB [2002] ECR II-4035, para. 69; T‑37/10 P De Nicola v EIB [2012] ECR-SC, paras 46, 49, 52 to 54 See the text of the decision. (see para. 52) See: C-449/99 P EIB v Hautem [2001] ECR I-6733, para. 44; C-121/01 P O’Hannrachain v Parliament [2003] ECR I-5539, para. 35; 27 April 2006, C‑230/05 P L v Commission, not published in the ECR, para. 45 See the text of the decision. (see para. 57) See: T-100/04 Giannini v Commission [2008] ECR-SC I-A-2-9 and II-A-2-37, paras 61 and 62 and the case-law cited therein Where the duration of a procedure is not set by a provision of EU law, the ‘reasonableness’ of the period of time taken by the institution to adopt a measure at issue is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case. Consequently, the reasonableness of a period cannot be determined by reference to a precise maximum limit determined in an abstract manner but, rather, must be appraised in each case on the basis of the relevant circumstances. Moreover, in the light of the need for consistency, it is appropriate to apply the concept of a ‘reasonable period’ in the same way to an action or an application in respect of which no provision of EU law has prescribed the period of time within which that action or that application must be brought. In both cases, the Courts of the European Union must take into consideration the particular circumstances of the case. (see para. 74) See: C‑334/12 RX-II Arango Jaramillo and Others v EIB [2013] ECR-SC, paras 25 to 46 See the text of the decision. (see para. 77) See: 18 July 2011, T‑450/10 P Marcuccio v Commission, not published in the ECR, para. 31 See the text of the decision. (see para. 96) An action brought subsequently to another which is between the same parties, is brought on the basis of the same submissions and seeks the annulment of the same legal measure must be dismissed as inadmissible on the ground of lis pendens, without there being any need for that objection to be laid down by an express legal rule. In that regard, a distinction drawn by an applicant between the different courts and on the basis of the fact that the respective contentious proceedings overlapped in time cannot be upheld since the subject-matter of the dispute remained substantively the same in all the proceedings. (see para. 98) See: C-138/03, C-324/03 and C-431/03 Italy v Commission [2005] ECR I-10043, para. 64; 9 June 2011, C‑465/09 P to C‑470/09 P Diputación Foral de Vizcaya v Commission, not published in the ECR, para. 58 See the text of the decision. (see para. 106) See: C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Group Bank and Others v Commission [2009] ECR I-8681, para. 319; 10 June 2010, C‑498/09 P Thomson Sales Europe v Commission, not published in the ECR, para. 138

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

16 September 2013

Carlo De Nicola

v

European Investment Bank (EIB)

‛Appeal — Civil service — EIB staff — Appraisal — Promotion — 2008 appraisal and promotion year — Decision of the Appeals Committee — Scope of review — Assessment report — Plea of illegality — Reasonable period — Claim for setting aside — Claim for damages — Lis pendens’

Appeal:

against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 28 September 2011in Case F‑13/10 De Nicola v EIB [2011] ECR, seeking the setting aside of that judgment.

Held:

The judgment of the Civil Service Tribunal of the European Union (First Chamber) of 28 September 2011 in Case F‑13/10 De Nicola v EIB is set aside in so far as it rejects Mr Carlo De Nicola’s claim seeking the annulment of the decision of the Appeals Committee of the European Investment Bank (EIB). The remainder of the appeal is dismissed. The action brought by Mr De Nicola before the Civil Service Tribunal in Case F‑13/10 is dismissed. Mr De Nicola is to bear his own costs and is ordered to pay half of the costs incurred by the EIB relating to the proceedings before the Civil Service Tribunal and on appeal. The EIB is to bear half of its own costs relating to the proceedings before the Civil Service Tribunal and on appeal.

Summary

Actions brought by officials — Staff of the European Investment Bank — Action directed against a decision of the Appeals Committee concerning an official’s appraisal — Judicial review — Scope (Staff Regulations, Art. 91; Staff Regulations of the European Investment Bank, Art. 22) Appeals — Pleas in law — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the General Court of the assessment of the facts and the evidence — Possible only where the clear sense of the evidence has been distorted (Statute of the Court of Justice, Art. 58 and Annex I, Art. 11) Judicial proceedings — Application initiating proceedings — Formal requirements — Detailed statement of the pleas and arguments relied on before the Civil Service Tribunal (Statute of the Court of Justice, Art. 21; Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e)) EU law — Principles — Duty to act within a reasonable time — Administrative procedure — Judicial proceedings — Criteria for assessment (Charter of Fundamental Rights of the European Union, Arts 47 and 52(1); Staff Regulations of the European Investment Bank, Art. 41) Appeals — Pleas in law — Review by the General Court of the accuracy of the legal classification of facts established by the Civil Service Tribunal — Lawfulness (Statute of the Court of Justice, Art. 58 and Annex I, Art. 11) Actions brought by officials — Staff of the European Investment Bank — Action for annulment not brought within the time-limit — Action for damages seeking the same outcome — Inadmissibility Judicial proceedings — Objection of lis pendens — Same parties, subject-matter and submissions in two actions — Inadmissibility of the second action Appeals — Pleas in law — Review by the General Court of the Civil Service Tribunal’s refusal to order measures of organisation of procedure or inquiry — Scope (Art. 256(2) TFEU; Statute of the Court of Justice, Annex I, Art. 11)