ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

3 March 2016

Carlo De Nicola

v

European Investment Bank (EIB)

and

Court of Justice of the European Union

‛Civil service — EIB staff — Non-contractual liability of the European Union — Psychological harassment — Implied encouragement resulting from the judicial activities of the European Union courts — Compensation for harm resulting from psychological harassment — Infringement of the right to a fair hearing — Excessive duration of the judicial proceedings — Lack of jurisdiction of the Civil Service Tribunal — Action partially referred to the General Court’

Application:

under Article 270 TFEU, in which Mr De Nicola essentially seeks, first, annulment of the decision of the Appeals Committee (‘the Appeals Committee’) of 8 December 2014 rejecting his internal appeal seeking the annulment and amendment of his staff report for 2013, annulment of his staff report for 2013, annulment of the decision of the European Investment Bank (EIB or ‘the Bank’) not to promote him, and annulment of the Guidelines to the Performance Evaluation Exercise 2013. Secondly, Mr De Nicola seeks a finding that he has been the subject of harassment. Furthermore, the applicant requests the Tribunal to find that the European Union is liable ‘on the ground that it has implicitly encouraged harassment through the judgments delivered by its courts, and that it has infringed the rules concerning a “fair hearing”’. Lastly, the applicant seeks an order that the EIB and the EU jointly and severally pay compensation for the material and non-material harm which he claims to have suffered.

Held:

The claims for compensation directed against the European Union, represented by the Court of Justice of the European Union, submitted in the present action registered as Case F‑100/15 De Nicola v EIB and Court of Justice of the European Union, are referred to the General Court. The costs relating to those claims are reserved.

Summary

Judicial proceedings — Division of competences between the EU courts — Claim for compensation for the unfairness and excessive duration of judicial proceedings — Lack of jurisdiction of the Civil Service Tribunal — Referral back to the General Court

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 51, first para., and Annex I, Arts 1 and 8(2))

The judicial system at present set out in the FEU Treaty, the Statute of the Court of Justice and Decision 2004/752 establishing the European Union Civil Service Tribunal contains a precise delimitation of the respective jurisdictions of the three courts of the Court of Justice, namely, the Court of Justice, the General Court and the Civil Service Tribunal, so that the jurisdiction of one of those three courts to rule on an action necessarily excludes the jurisdiction of the other two.

The Civil Service Tribunal has jurisdiction ratione materiae to hear and determine an action in damages brought by an official or other staff member against the institution by which he is employed, where the dispute originates in the employment relationship between the person concerned and the institution. However, it follows from Article 256(1) TFEU and the first paragraph of Article 51 of the Statute of the Court of Justice that the General Court alone has jurisdiction to hear and determine at first instance actions or proceedings for damages brought by individuals where those actions or proceedings do not originate in an employment relationship between the person concerned and an institution.

That division of jurisdiction between the General Court and the Civil Service Tribunal which follows from Article 256 TFEU and Article 1 of Annex I to the Statute of the Court of Justice entails an obligation to consider the actual subject-matter of a claim for damages, including its legal basis, in order to ascertain whether the dispute as thus circumscribed relates to the reciprocal rights and obligations binding on the official or other staff member, on the one hand, and the institution or body by which he is employed, on the other.

Thus, a claim for damages based on the supposed unfairness of judicial proceedings before the Courts of the Union and their allegedly excessive duration does not relate to the individual’s employment relationship with his institution, even if it is connected with alleged psychological harassment by the institution in question.

In that regard, Article 8(2) of Annex I to the Statute of the Court of Justice lays down a special mechanism for cases where the Civil Service Tribunal finds that it does not have jurisdiction on the ground that the action comes under the jurisdiction of the Court of Justice or the General Court. Rather than leaving the steps to be taken after the declaration of lack of jurisdiction to the initiative of the parties, which will lodge an appeal if necessary, Article 8(2) of that Annex provides for the case to be referred to the Union court regarded as having jurisdiction.

(see paras 14, 16, 18-21)

See:

Judgment of 10 September 2015 in Review of Missir Mamachi di Lusignano v Commission, C‑417/14 RX-II, EU:C:2015:588, paras 38, 41 and 56

Orders of 12 June 2012 in Strack v Commission, T‑65/12 P, EU:T:2012:285, para. 12, and 9 January 2015 in Marcuccio v European Union, T‑409/14, EU:T:2015:18, para. 58

Orders of 7 December 2011 in Strack v Commission, F‑44/05 RENV, EU:F:2011:191, para. 8