JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

21 July 2016

Carlo De Nicola

v

European Investment Bank (EIB)

‛Civil service — EIB staff — Appraisal — 2013 appraisal report — Decision of the Appeals Committee’

Application:

under Article 270 TFEU, by which Mr De Nicola seeks, essentially, annulment of the decision of the appeals committee of 8 December 2014 rejecting his appeal against his 2013 appraisal report, and of the decision of the European Investment Bank (‘EIB’ or ‘the Bank’) not to promote him. Additionally, Mr De Nicola seeks a finding that the psychological harassment which he considers himself to have suffered did take place, and an order requiring the Bank to compensate him for the material, physical and non-material damage he claims to have sustained.

Held:

The action is dismissed. Mr De Nicola is to bear his own costs and is ordered to pay the costs incurred by the European Investment Bank.

Summary

As regards the scope of the review to be carried out by the Appeals Committee established by the European Investment Bank with regard to staff appraisals, that committee may invalidate the statements contained in the appraisal form and/or alter the final assessment of merits. The Appeals Committee is therefore entitled to make a fresh assessment of whether each of those statements is well-founded. The scope of this power, therefore, extends beyond reviewing the legality of and annulling 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. (see para. 46) See: Judgment of 27 April 2012 in De Nicola v EIB, T‑37/10 P, EU:T:2012:205, para. 41

In an action against a decision of the Appeals Committee established by the European Investment Bank with regard to the appraisal of members of staff, it is for the EU courts to verify whether and to what extent that committee fulfilled its duty to carry out a full review in accordance with the applicable rules, bearing in mind that the review of legality carried out by the EU courts in relation to assessments contained in the annual appraisal report of a member of the Bank’s staff is limited and relates only to such formal irregularities as may exist, manifest errors of fact vitiating the assessments, and any abuse of powers. In that regard, an error may only be characterised as manifest when it is easily recognisable and can be readily detected, having regard to the criteria to which the legislature intended to make the exercise of the administration’s discretion subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken on the basis of that assessment, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent. That is the case in relation to a ground concerning the choice made by the administration in setting targets during the course of the annual appraisal, where the applicant goes no further than to make assertions which are not supported by any evidence. (see paras 47, 48, 68, 73) See: Judgment of 22 October 2002 in Pflugradt v ECB, T‑178/00 and T‑341/00, EU:T:2002:253, para. 69 Judgments of 27 April 2012 in De Nicola v EIB, T‑37/10 P, EU:T:2012:205, paras 52 and 54, and 16 September 2013 in De Nicola v EIB, T‑618/11 P, EU:T:2013:479, para. 61 Judgment of 8 October 2015 in FT v ESMA, F‑39/14, EU:F:2015:117, para. 74 and the case-law cited

Every applicant is represented by a lawyer in proceedings before the Civil Service Tribunal. Consequently, it is not indispensable for the applicant himself to attend, unless the Tribunal has directed such attendance or it is necessitated by the circumstances. (see para. 53) See: Order of 2 June 2009 in Sison v Council, T‑47/03 DEP, EU:T:2009:166, para. 52

In assessing the performance of a member of staff, sight must not be lost of his experience and level of responsibility. The expectations of an EU institution or body as regards its staff are not fixed and can take account of the experience acquired by the member of staff in question, without this constituting a manifest error of assessment. (see para. 54) See: Judgment of 11 December 2014 in DE v EMA, F‑103/13, EU:F:2014:265, para. 97

Article 41 of the Staff Regulations of the European Investment Bank only enables members of the Bank’s staff to bring disputes of an individual nature before the EU 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. In this regard, the Bank’s internal guidelines concerning the staff appraisal procedure are intended to produce legal effects with regard to a category of persons, namely members of the Bank’s staff, envisaged in a general and abstract manner. They accordingly constitute a measure of general application. Thus, claims seeking their annulment cannot be regarded as relating to individual disputes within the meaning of Article 41 of the Staff Regulations of the EIB. The guidelines cannot therefore be the subject of a direct action brought by a member of the Bank’s staff. (see paras 79, 80) See: Judgment of 16 July 1981 in Bowden and Others v Commission, 153/79, EU:C:1981:184, para. 13 Judgments of 6 March 2001 in Dunnett and Others v EIB, T‑192/99, EU:T:2001:72, paras 61 and 62; 16 December 2004 in De Nicola v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, para. 132, and 29 November 2006 in Agne-Dapper and Others v Commission and Others, T‑35/05, T‑61/05, T‑107/05, T‑108/05 and T‑139/05, EU:T:2006:365, para. 56

Under Article 270 TFEU, the Court of Justice has jurisdiction in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union. Furthermore, under Article 41 of the Staff Regulations of the EIB, disputes of any nature between the Bank and individual members of staff are to be brought before the Court of Justice. Finally, under Article 1 of Annex I to the Statute of the Court, the Civil Service Tribunal is to exercise at first instance jurisdiction in disputes between the European Union and its servants referred to in Article 270 TFEU. As to the scope of the judicial review carried out by the Tribunal in disputes between the Bank and members of its staff, Article 41 of the Staff Regulations of the EIB does not contain any specific rule which would have the effect of restricting or extending the jurisdiction of the EU courts, as it results, in relation to officials, from Article 91 of the Staff Regulations of Officials and from settled case-law. (see paras 87, 88)