JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

30 November 2009

Case F-55/08

Carlo De Nicola

v

European Investment Bank

(Civil service – Staff of the European Investment Bank – Assessment – Promotion – Sickness insurance – Repayment of medical expenses – Psychological harassment – Duty to have regard for the welfare of officials – Actions for damages – Jurisdiction of the Tribunal – Admissibility)

Application: brought under Article 41 of the Staff Regulations of the European Investment Bank, in which Mr De Nicola seeks, in particular, first, annulment of the decision of the Appeals Committee of the European Investment Bank of 14 December 2007 rejecting his appeal seeking, first, the reassessment of the mark he was given for 2006 and, second, annulment of the Bank’s decisions of 13 July 2007 concerning promotions decided upon for 2006 in so far as they fail to promote him to function D; second, annulment of his 2006 assessment report and of the decisions of 13 July 2007 in so far as they fail to promote him to that function; third, a declaration that he was the victim of psychological harassment; fourth, an order that the Bank compensate him for the damage he considers he suffered as a result of that harassment; and finally, annulment of the decision refusing to pay certain medical expenses for laser treatment.

Held: The action is dismissed. The applicant is ordered to bear the costs.

Summary

1. Officials – Staff of the European Investment Bank – Actions – Action against a decision rejecting a complaint – Admissibility

(Staff Regulations, Arts 90 and 91)

2. Officials – Staff of the European Investment Bank – Reports procedure

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

3. Officials – Staff of the European Investment Bank – Annual assessment report

(Staff Regulations, Art. 91)

4. Officials – Staff of the European Investment Bank – Assessment – Practical assessment guide

5. Officials – Actions – Plea of illegality – Admissibility

(Art. 241 EC; Staff Regulations, Art. 91)

6. Officials – Staff of the European Investment Bank – Assessment – Appeals Committee

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

7. Officials – Staff of the European Investment Bank – Social security – Sickness insurance – Medical expenses – Repayment – Refusal – Challenge to the opinion of the medical adviser

(Staff Regulations of the European Investment Bank, Art. 35)

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

(Art. 236 EC; Staff Regulations, Art. 91; Staff Regulations of the European Investment Bank, Art. 41)

1. Claims directed against the opinion of a staff assessment Appeals Committee set up within the European Investment Bank have the effect of bringing before the Community judicature the assessment reports against which such administrative appeals have been lodged.

(see para. 84)

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

2. According to Article 22 of the Staff Regulations of the European Investment Bank, the procedure to be followed for the annual performance appraisal of each staff member ‘shall be determined by an internal decision’ of the Bank. In the absence of any reference to a document other than a staff notice, it is clear that it was by that notice that the Bank determined the annual appraisal procedure, and that the staff notice and the practical appraisal guide attached to it constitute a body of binding rules from which the Bank cannot depart without committing an unlawful act. Even if that staff notice were not the ‘internal decision’ referred to by the Staff Regulations, it would not thereby be deprived of its binding scope, given that it must be regarded at the very least as an internal directive by which the Bank imposed on itself a rule of conduct, albeit only for guidance, but from which it cannot depart without explaining the reasons which led it to do so, if it is not to infringe the principle of equal treatment.

Where the practical appraisal guide sets a deadline for holding appraisal interviews, therefore, that deadline must be met. Similarly, as the guide requires the staff member concerned to fill out, prior to the appraisal interview, certain sections of the draft appraisal report forwarded to him by the reporting officer, he will require a certain time to think about those sections and draw up the relevant entries, and so he must be given a reasonable period between receiving the draft appraisal report and attending the interview; a period of a few minutes cannot be regarded as reasonable.

However, irregularities concerning the date on which the appraisal interview was held and the period allowed for the official to submit his comments on the draft appraisal report are not, in themselves, such as to justify criticism of the contested report given that, first, the length of the reports procedure and the delays which built up in the course of that procedure do not in themselves affect the legality of the appraisal report, and, second, the official was given an opportunity to submit his observations, views and comments on the contested draft report at a second appraisal interview.

(see paras 105, 106, 109, 112, 113, 121-124)

See:

129/82 and 274/82 Lux v Court of Auditors [1984] ECR 4127, para. 20

T-18/93 Marcato v Commission [1994] ECR-SC I‑A‑215 and II‑681, para. 36; T-165/01 McAuley v Council [2003] ECR-SC I‑A‑193 and II‑963, para. 44; T-50/04 Micha v Commission [2005] ECR-SC I‑A‑339 and II‑1499, para. 45; T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission [2005] ECR-SC I‑A‑411 and II‑1865, paras 159 to 161

3. It is not for the Community judicature to substitute its assessment for that of the persons responsible for appraising the staff of the European Investment Bank. The EIB, like other institutions and bodies of the Community, enjoys wide discretion in appraising the work of members of its staff. Judicial review by the Community 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. 126)

See:

T‑178/00 and T‑341/00 Pflugradt v ECB [2002] ECR II‑4035, para. 69

4. The provision of the practical appraisal guide attached to the staff notice determining the appraisal procedure within the European Investment Bank, according to which objectives must be ‘accepted by the staff member reported on’, may not be construed as meaning that, without the agreement of the person concerned, the appraisal report would be invalidated. If that interpretation were accepted, the provision would have the effect of obliging the administration to obtain the agreement of all staff members on the type of tasks entrusted to them and would put those staff members in a position to choose which objectives to pursue, which would be manifestly contrary to the rules of sound administration and the hierarchical principle.

(see para. 131)

5. While an official is, in principle, entitled to mount an indirect challenge to the legality of provisions of general application adopted by a Community institution or body, though such a challenge does not constitute an application for an injunction, it is on the twofold condition that the individual decision which he seeks to have set aside was taken directly pursuant to those provisions and that the plea of illegality is capable, by its outcome, of bringing him an advantage.

(see para. 172)

See:

C‑432/98 P and C‑433/98 P Council v Chvatal and Others [2000] ECR I‑8535, para. 33

T-135/05 Campoli v Commission [2006] ECR-SC I‑A‑2‑297 and II‑A‑2‑1527, para. 132

6. The Appeals Committee to which a member of the European Investment Bank’s staff may apply in connection with his annual appraisal does not act as the equivalent of a hierarchical superior to the Bank’s competent authorities. Its decision does not replace that of the competent authorities. The task of the Committee is quasi judicial, reviewing the legality of the decisions referred to it on the basis of considerations comparable to those used by the Community judicature. In particular, it ascertains whether the procedure for drawing up the appraisal reports was lawful and whether the Bank has manifestly infringed the limits of its discretion, which is particularly broad as regards appraisal and promotion.

Where the Community judicature, having considered the legality of the same decisions as those referred to the Appeals Committee, reaches the same conclusion as the Committee, which is that the complaints lodged against those decisions must be rejected, there is no further interest for the Community judicature to adjudicate on the claims directed against the decision of the Committee. Those claims are indissociable from those seeking the annulment of the Bank’s decisions, which constitute the subject-matter of the proceedings.

Even if the legality of the Appeals Committee’s decision could be considered independently and that decision was declared unlawful, its annulment would still leave the contested report, which the decision did not replace. It could not have the effect of forcing the Bank to refer back to the Appeals Committee the challenge brought by the applicant against the contested report, since the Community judicature had itself already adjudicated on that challenge.

(see paras 196, 197, 199)

7. It follows from section III of Annex II to the internal provisions on health insurance, adopted pursuant to Article 35 of the Staff Regulations of the European Investment Bank, that a member of the Bank’s staff who intends to challenge the refusal to reimburse medical expenses which he has incurred must use the specific legal remedy available to him for that purpose. It would be contrary to the objective pursued by those provisions, which is that independent doctors should be used to help to resolve medical disputes, if a staff member could legitimately challenge the opinion of the medical adviser outside the procedure specially designed for that purpose.

(see para. 212)

See:

F‑97/07 De Fays v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 56

8. The EIB, which is authorised to establish the rules applicable to its employees in accordance with the Protocol on the Statute of the European Investment Bank, has the power to determine the conditions in which members of its staff may bring proceedings before the Court of Justice under Article 236 EC.

Article 41 of the Bank’s Staff Regulations, concerning legal remedies, merely refers to the fact that the Court has jurisdiction and introduces a conciliation procedure. It does not, therefore, contain any specific rule that would have the effect of restricting or extending the Court’s jurisdiction, which, for officials, flows from Article 91 of the Staff Regulations and the consistent case-law.

In the absence of any particular provision of the Staff Regulations of the European Investment Bank on the subject, it is necessary, not to apply directly the rules of the Staff Regulations of Officials, which would disregard the specific nature of the rules applicable to members of the Bank’s staff, but to be guided by those rules and apply them by analogy, since purely internal disputes between the Bank and its employees are, by their nature, comparable to disputes between the Community institutions and their officials or other staff.

It is therefore 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 Community 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 paras 233-236, 239)

See:

De Nicola v EIB, paras 100, 101 and 107