JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

23 February 2001

Joined Cases T-7/98, T-208/98 and T-109/99

Carlo De Nicola

v

European Investment Bank

‛European Investment Bank — Staff — Action for annulment — Admissibility — Time-limit for initiating action — Substance — Annual performance appraisal — Promotion — Consideration of comparative merits — Principle of equal treatment — Misuse of powers — Mental harassment — Resignation — Conditions of validity — Form — Capacity — Refusal of administration to accept withdrawal of resignation — Request to remove documents from the file — Action for damages’

Full text in Italian II-185

Application for:

annulment of the applicant's annual performance appraisals for 1996 and 1997 in so far as they do not contain a proposal for promotion and also of the promotion decisions taken by the European Investment Bank following those annual appraisals, in so far as they relate to promotions from Function E to Function D and fail to promote the applicant to Function D.

Held:

The defendant's decision of 2 February 1999 refusing to accept the withdrawal of the applicant's resignation is annulled. The defendant is ordered to pay the applicant the arrears of remuneration not received since the withdrawal of his resignation, together with default interest at the rate of 6.75%. The defendant is ordered to pay the applicant the token sum of one euro by way of compensation for non-pecuniary damage. The defendant is ordered to pay all the costs. The remainder of the application is dismissed.

Summary

Officials — Promotion — Refusal founded on the bringing of legal proceedings or the production in evidence of internal documents of the institution — Not permissible — Refusal founded on the production in evidence of improperly acquired confidential documents of the employer — Permissible — Limits — Assessment of the propriety of the acquisition of those documents

The need to weigh the entitlement to effective protection by the courts, which is one of the general principles of Community law and implies that those subject to the courts' jurisdiction must have a sufficient period of time available to them to assess the lawfulness of the act adversely affecting them and if necessary prepare their case, against the need for legal certainty which requires that, after a certain time, measures taken by Community bodies become definitive requires that disputes between the European Investment Bank and its employees should be brought before the Community judicature within a reasonable period. In determining such a period, account must be taken, in particular, of the specific nature of staff disputes and the importance attaching, in that context, to the possible existence of a pre-litigation procedure. Although the Bank's employees are subject to specific regulations drawn up by the Bank, purely internal disputes between the Bank and its employees are comparable in nature to disputes between the Community institutions and their officials or other servants, which are covered by Articles 90 and 91 of the EC Staff Regulations and are also subject to judicial review under Article 179 of the Treaty (now Article 236 EC). It is therefore necessary to be guided by the conditions relating to the period for lodging an appeal, laid down by Articles 90 and 91 of the EC Staff Regulations, while taking account of the particular context of the Staff Regulations of the Bank, which establish, in Article 41, an optional conciliation procedure. That conciliation procedure under Article 41 of the Bank's Staff Regulations and the specific appeal procedure for appraisals, which is provided for by an administrative notice issued by the Bank, pursue the same objective as the compulsory pre-litigation procedure established by Articles 90 and 91 of the EC Staff Regulations. Like the latter, the former are aimed at facilitating an amicable settlement of differences by giving the administration the opportunity to alter or reverse the contested act and the employee concerned the option of accepting the reasons on which the contested act is based and, where appropriate, of refraining from bringing proceedings. Moreover, the Bank's regulations do not lay down detailed rules for the coordination of those two procedures. In that connection, the decision to resort to either procedure, or to both simultaneously or in turn, is thus left to the discretion of the employee concerned, subject to observance of the time-limit laid down as a guide by the relevant notices for requesting referral to the appeal board. In that context, a period of three months, to run from the date of notification to the employee concerned, where appropriate, of the negative outcome of the appeal procedure or the failure of the conciliation procedure - which is deemed to have failed when, within two weeks of its appointment, the conciliation committee has not reached a settlement accepted by both sides - must, in principle, be regarded as reasonable, provided however, first, that any appeal procedure has been held within a reasonable period and, second, that the party concerned has made any request for conciliation within a reasonable period after receiving notification of the act adversely affecting him. In addition, the establishment of those two optional procedures by, respectively, Article 41 of the Bank's Staff Regulations and the abovementioned staff notices, which are binding on the Bank, leads to the conclusion that, if an employee requests the initiation, first, of the appeal procedure, then of the conciliation procedure, the limitation period for bringing proceedings before the Court of First Instance does not start to run until the latter procedure has failed, provided that the employee has made his request for conciliation within a reasonable time after completion of the appeal procedure. To hold otherwise would mean that an employee of the Bank would be obliged to bring an action before the Community judicature at a time when he was still endeavouring to have the matter settled amicably, which would deprive the optional administrative procedures of their effectiveness. (see paras 98-101, 106-111) See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 9; T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 8; C-212/94 FMC and Others [1996] ECR I-389, para. 5; T-202/97 Koopman v Commission [1998] ECRSC I-A-163 and II-511, paras 23 to 25; T-74/99 Meyer v Council [1999] ECR II-1749, para. 13; T-33/99 Méndez Pinedo v ECB [2000] ECRSC I-A-63 and II-273. para. 32

A special appeal procedure relating to the appraisal procedure for a given year, provided for by an administrative notice issued by the European Investment Bank to its staff, cannot be compulsory. The conditions governing the admissibility of actions brought against the Bank by its employees, which are an essential part of their conditions of employment, are, in principle, laid down by the Board of Directors, which alone is competent, under Article 29 of the Bank's Rules of Procedure, to lay down the regulations relating to the Bank's staff. Those conditions of admissibility cannot, therefore, be laid down by staff notices issued by the Bank's departments. Moreover, referral to an appeal board of matters relating to annual appraisal does not deprive the employees concerned of the option of also requesting referral to the conciliation committee under Article 41 of the Bank's Staff Regulations. In that respect, the appeal procedure, which is provided for only in the context of the annual appraisal procedure, resembles the specific internal appeal procedures provided for by the Community institutions in general implementing provisions or even administrative notices, which are optional in nature and cannot derogate from the express provisions of Articles 90 and 91 of the EC Staff Regulations. (see paras 103-105) See: T-54/92 Schneider v Commission [1994] ECRSC I-A-281 and II-887, paras 19 and 22

An employee of the European Investment Bank does not lose his legal interest in bringing proceedings for the annulment of appraisals concerning him for the reason that annulment of those appraisals, where appropriate, would not necessarily result in his promotion under a procedure for promotion without transferring to another post. (see para. 127)

Even though the possibility cannot be excluded that differences between an official and his immediate superior, consisting of criticism by the former of management within the latter's area of responsibility, may cause a degree of irritation on the part of the immediate superior, that possibility does not as such imply that the immediate superior is not in a position to assess objectively the merits of the person concerned. (see para. 188) See: T-11/91 Schloh v Council [1992] ECR II-203, para. 53

The bringing of proceedings before the Court cannot, in any circumstances, justify refusal of promotion. Moreover, a decision which denies the employee concerned promotion on the ground that he has produced internal documents from the institution in support of his pleas in law and arguments is, in principle, incompatible with the right to an effective remedy. However, the unauthorised production of confidential documents belonging to that institution and acquired in an improper manner by the employee concerned may constitute a culpable act and on that basis may legitimately be taken into consideration by the competent authority in rejecting, where appropriate, the candidature of the person concerned for promotion, regardless of whether those documents will be deemed by the Court to be essential for the purpose of resolving the dispute and retained in the file on that basis, subject to the protection of confidentiality. The propriety of the acquisition of a document by an official or employee of an institution must be considered in relation to the degree of confidentiality attaching to that document. In particular, a confidential document, the distribution of which is restricted, is in principle accessible only to the employees to whom it was communicated in connection with the performance of their duties. In that regard, it should be pointed out that certain documents warrant special protection by reason of their nature or their content. That is the case in particular with certain internal documents or with correspondence, the confidentiality of which must be ensured in order not to impair the proper working of the institution in question. The burden of proof of the propriety of the acquisition of a document rests with the party which produced it. Documents from or exchanged between members of the governing bodies of the institution concerned, which, by reason of their nature and their content, are strictly confidential and in regard to which there are no grounds for assuming that they were intended to be distributed to the employees of the division to which the party concerned belonged cannot therefore be considered to have been acquired in a proper manner. In those circumstances, the mere fact that documents of that nature are located in archives to which the party concerned had unrestricted access does not prove that he was entitled to consult them or, a fortiori, to appropriate them for purposes other than those directly connected with the performance of his specific duties. If the party concerned considered that those documents provided support for his pleas in law and arguments, it was for him to request the Court to order their production. (see paras 219-223, 226-228) See: 28/65 Fonzi v EAEC Commission [1966] ECR 477; 232/84 Commission v Tordeur,19 March 1985, not published in ECR, para. 8; 31/86 LAISA v Council,15 October 1986, not published in ECR, para. 5; T-16/89 Herkenrath and Others v Commission,13 November 1990, not published in ECR, para. 5; T-280/94 Lopez v Court of Justice [1996] ECRSC I-A-77 and II-239, paras 57, 58 and 59; Order in T-134/94, T-136/94 to T-138/94, T-141/94. T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 NMH Stahlwerke and Others v Commission [1996] ECR II-537, para. 73

The Staff Regulations of the European Investment Bank do not make resignation subject to any special requirement as to form. They merely state, in Article 16, that ‘contracts for an indefinite period may be terminated by due notice given by one party to the other’. Moreover, Article 13 of the Statute of the Bank, which provides that employees are to be engaged and discharged by the President of the Bank, manifestly does not relate to a case where the contract of employment is terminated by the employee. With regard to Article 42 of those regulations, which states that the declarations and requests provided for by those regulations are to be submitted in writing to the President, it cannot be interpreted as meaning that it requires such declarations or requests to be formally addressed to him. It is sufficient for them to be addressed to the relevant department which will forward them to the President through the normal administrative channels. Moreover, the sending of a letter by fax complies fully with the requirement of written form, which is aimed only at making it possible to establish the intention of the person making the document. In the absence of any special requirements as to form, the burden of proof of resignation rests with the party relying on it. Finally, in principle, since resignation is a unilateral decision, notice of resignation produces its effects upon its receipt by the employer. (see paras 278-290,292)

Where proven, any pressure or threat, in any form whatsoever, aimed at persuading an employee to resign, or any conduct comparable to mental harassment, permits the inference that the employee's consent is defective. (see para. 295)

The annulment, on the ground of a defect in consent, of a resignation, which renders nugatory the refusal of the institution concerned to accept the withdrawal of that resignation and therefore entails the nullity of such a refusal, has the effect of placing the author of that resignation in the situation in which he found himself before he drafted it, since the contract of employment was never broken. In that context, the fact that an employee has been temporarily affected by mental illness can on no account justify discriminatory treatment with regard to him, and in particular cannot prevent his return to work following his reinstatement. Moreover, where, at the time of the withdrawal of his resignation by the party concerned, the institution in question has information on his state of health and the reasons for that resignation, sufficient to establish a link between the resignation and the mental illness from which he was suffering and such as to raise serious doubts as to the validity of that resignation, the onus is on it, by virtue of its duty to have regard for the welfare of officials, to reexamine all the information at its disposal. If it is apparent that the resignation was vitiated by a defect in consent, the institution in question is bound to accept immediately the withdrawal of that resignation. The suspension of the contract of employment ends on the date of that withdrawal. (see paras 309, 310, 314)