JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

27 April 2012

Case T‑37/10 P

Carlo De Nicola

v

European Investment Bank (EIB)

(Appeal — Civil service — Staff of the EIB — Appraisal — Promotion — Appraisal and promotion in respect of 2006 — Decision of the Appeals Committee — Scope of the review — Sickness insurance — Refusal to bear medical costs — Claim for compensation)

Appeal: against the judgment of the European Union Civil Service Tribunal (First Chamber) of 30 November 2009 in case F‑55/08 De Nicola v EIB [2009] ECR-SC I‑A‑1‑469 and II‑A‑1‑2529, seeking to have that judgment set aside.

Held: The judgment of the European Union Civil Service Tribunal (First Chamber) of 30 November 2009 in case F‑55/08 De Nicola v EIB is set aside, insofar as it rejects, firstly, Mr Carlo De Nicola’s claim seeking annulment of the decision of the Appeals Committee of the EIB, secondly, his claim seeking annulment of the decision refusing to promote him in respect of the year 2006, and all associated actions whether prior or subsequent to the decision, and, thirdly, his claim for recognition of the liability of the EIB for the harassment which it inflicted on him, and for compensation for loss suffered in that regard. The appeal is dismissed as to the remainder. The matter is referred to the Civil Service Tribunal. Costs are reserved.

Summary

1. Officials — Staff of the EIB — Internal directive setting out the powers of the bank’s appeals committee — Legal effects

(Staff Regulations of the European Investment Bank, Art. 22)

2. Officials — Staff of the EIB — Reports procedure — Assessment report — Challenge before the Appeals Committee of the EIB — Scope of review

(Staff Regulations of the European Investment Bank, Art. 22)

3. Officials — Staff of the EIB — Reports procedure — Assessment report — Challenge

(Staff Regulations, Art. 90; Staff Regulations of the European Investment Bank, Art. 22)

4. Officials — Staff of the EIB — Actions — Application challenging a decision of the Appeals Committee in a matter of appraisal — Judicial review — Scope

(Staff Regulations, Art. 91; Staff Regulations of the European Investment Bank, Art. 22)

5. Officials — Staff of the EIB — Pre-litigation procedure — Optional

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

6. Appeals — Grounds — Review by the General Court of the Civil Service Tribunal’s refusal to order measures of organisation of procedure or measures of inquiry — Scope

(Art. 256(2) TFEU; Statute of the Court of Justice, Annex I, Art. 11)

1. As a formal decision of the EIB which is duly published and implemented, a provision governing the scope of the review to be carried out by the EIB’s appeals committee establishes an internal rule of general scope which is legally binding and limits the EIB’s discretion in relation to the organisation of its structures and the management of its staff. Members of staff are entitled to rely on the rule before the Courts of the Union, which will ensure that it is observed.

(see para. 40)

See:

T‑165/01 McAuley v Council [2003] ECR-SC I‑A‑193 and II‑963, para. 44; T‑258/03 Mausolf v Europol [2005] ECR-SC I‑A‑45 and II‑189, para. 25 and the case‑law cited

2. The fact that the Appeals Committee established by the EIB in connection with appraisal of its staff has power to strike out any statement contained in the appraisal form, that is to say in the assessment report, implies that that committee has power to reassess each of those statements on its merits before striking it out. This power, therefore, clearly extends beyond reviewing the legality of and setting aside the operative part of an act, in that it encompasses the possibility of reversing the grounds which supported the adoption of the operative part, whatever their place in the overall rationale of the act. This full power of review on the part of the Appeals Committee is confirmed by the power expressly given to it to modify the individual scores and the merit score relating to the overall appraisal of the appellant’s performance. Alteration of the merit score implies that the committee carries out a detailed review of all of the assessments of merit contained in the report in issue, considering whether they involve any errors of assessment, fact or law, and also that it may, where appropriate, substitute itself for the evaluator and carry out a fresh assessment of those merits.

(see para. 41)

3. Where the EIB adopts comprehensive internal rules establishing an Appeals Committee with jurisdiction to consider the decisions of staff evaluators, by reference to review criteria which are not comparable to and are more detailed than those which can be used by the appointing authority under the Staff Regulations of Officials, with no provision for a hearing to take place or for oral evidence to be heard, those rules prevent the application by analogy of the rules governing the complaints procedure under Article 90 of the Staff Regulations of Officials. Even allowing for the wide discretion given to the evaluator in the complex value judgement he makes as to the work of those concerned, there is nothing to exclude the possibility of the relevant internal rules giving appeal bodies a discretion similar to that of the evaluator, together with the power to substitute themselves, at least in part, for that person.

(see para. 47)

See:

T‑73/05 Magone v Commission [2006] ECR-SC I‑A‑2-107 and II‑A‑2-485, paras 25 and 29; T‑236/05 Aldershoff v Commission [2007] ECR-SC I‑A‑2-13 and II‑A‑2-75, para. 83

4. Even if, in the event of a challenge to a decision of the appeals committee established by the EIB in connection with the appraisal of its staff, the assessment report as well as the decision itself, automatically came before the Courts of the Union, that, taken alone, would not justify those Courts in limiting their consideration to the objections made to the report, and certainly not in failing entirely to exercise their power to review the merits of the Appeal Committee’s decision, insofar as the committee has a full power of review entitling it to substitute its own assessments for those contained in the report, a power which the Civil Service Tribunal does not enjoy. Indeed, if the appeal committee were, wrongly, to fail to exercise its full power of review, that would amount to depriving the person concerned of a review procedure laid down by the bank’s internal regulations and would thus adversely affect him, so that it would have to be possible to bring that failure before the court of first instance for review.

Moreover, since a full power of review has been given to the Appeals Committee, in relation to the assessments and scores contained in an assessment report, it is necessary for the court of first instance to verify, naturally in the context of its restricted power of review, whether and to what extent the committee has fulfilled its duty to carry out a full review in accordance with the applicable rules.

(see paras 49, 54)

5. The fact that the Staff Regulations of the EIB, which make provision for administrative appeals, do not (unlike Articles 90 and 91 of the Staff Regulations of Officials) lay down any mandatory pre-litigation procedure, prevents the procedure laid down by the Staff Regulations of Officials being straightforwardly applied by analogy, even if it were to be applied in a flexible manner in order to ensure legal certainty, having regard to the uncertainty attaching to the conditions of admissibility of actions by bank staff. Indeed, while Article 41 of the EIB Staff Regulations refers to a procedure for amicable settlement, it immediately makes clear that that procedure is conducted independently of the action instituted before the Courts of the Union.

In this regard, it follows that the Staff Regulations of the EIB, and in particular, Article 41 thereof, constitute internal rules whose nature and rationale are very different from those of the Staff Regulations of Officials, including Articles 90 and 91. The very existence of such internal rules — in the absence of a manifest lacuna which is contrary to overarching principles of law and requires to be filled — prevents analogies being drawn with those regulations. It is therefore impossible to adopt an interpretation which departs from the conditions governing the optional internal procedure for amicable settlement contained in Article 41 of the EIB Staff Regulations, so as to convert it into a mandatory procedure. In this regard, Article 41 clearly does not suffer from lacunae which require to be filled in order to comply with overarching principles of law.

(see paras 75-77)

See:

T‑7/98, T‑208/98 and T‑109/99 De Nicola v EIB [2001] ECR-SC I‑A‑49 and II‑185, paras 96, 97 and 101; T‑385/00 Seiller v EIB [2003] ECR-SC I‑A‑161 and II‑801, paras 50 to 52, 65 and 73

6. In principle, the Civil Service Tribunal alone has jurisdiction to establish the facts and examine the evidence. It follows with even greater force that, in assessing the facts and evidence, it is for the court of first instance alone to decide whether and to what extent measures of organisation of procedure or measures of inquiry are necessary. The Civil Service Tribunal is therefore the sole arbiter of whether it is necessary to supplement the information it possesses in relation to the matters before it, and what measures of organisation of procedure or measures of inquiry are appropriate.

In this regard, if the Tribunal rejects a request for measures of organisation of procedure or measures of inquiry, on the ground that they would not assist in resolving the matter, that decision is not open to appeal unless it can be argued that the Civil Service Tribunal has made an error of law.

(see paras 99-100)

See:

C‑125/07 P, C‑133/07, C‑135/07 P and C‑137/07 P Erste Group Bank & 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