JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

28 June 2010

Case F-49/10

Carlo De Nicola

v

European Investment Bank

(Civil service — Staff of the European Investment Bank — Sickness insurance — Refusal to reimburse medical expenses — Request for independent doctor to be designated — Reasonable period of time)

Application: brought under Article 270 TFEU and 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 7 May 2010 by which the Director of Human Resources of the European Investment Bank (‘the Bank’) rejected as inadmissible his request, on the basis of Article 41 of the Bank’s Staff Regulations, for the initiation of a conciliation procedure in order to obtain reimbursement of certain medical expenses, and second, an order that the Bank pay him the sum of EUR 3 000, plus interest, in respect of those expenses.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials — Staff of the European Investment Bank — Actions — Action directed against a decision of an Appeals Committee set up within the Bank — Admissibility — Exception — Decision not constituting a re-examination of the decision on appeal

(Staff Regulations of the European Investment Bank, Art. 41)

2. Officials — Staff of the European Investment Bank — Actions — Pleas in law — Plea alleging failure to observe the sickness insurance procedure — Plea irrelevant in an action for annulment against a decision refusing to initiate the procedure

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

3. Officials — Staff of the European Investment Bank — Actions — Time-limit for submitting a request to initiate the dispute procedure — Application by analogy of Articles 90 and 91 of the Staff Regulations of Officials

(Staff Regulations of Officials, Arts 90 and 91); Staff Regulations of the European Investment Bank, Arts 35 and 41)

4. Officials — Staff of the European Investment Bank — Rights and obligations — Bank’s duty to indicate in acts adversely affecting staff the remedies available to them and the time-limits involved — None — Infringement of duty to have regard for the welfare of staff and the principle of sound administration — None

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 Union judicature the assessment reports against which that administrative appeal has been brought. The same is true of claims relating to the decision of an appeals committee responsible for adjudicating on challenges directed against appraisal reports and promotion decisions.

A decision rejecting a request to initiate the conciliation procedure under Article 41 of the Bank’s Staff Regulations, which is based on the same grounds as the contested decision and raises the inadmissibility of the request, does not constitute an opinion which replaces the contested decision. Such a rejection decision, by its very purpose, prevents a re-examination of the contested decision which the conciliation procedure would have covered had it been initiated.

(see paras 42, 43)

See:

23 February 2001, T-7/98, T-208/98 and T-109/99 De Nicola v EIB, para. 132

2. A plea of inadmissibility which alleges that an action was not preceded by the internal sickness insurance procedure is, by definition, irrelevant against claims for annulment against the decision to reject a request for the initiation of that procedure, by which the applicant disputes the very lawfulness of the decision refusing to initiate it.

(see para. 57)

3. In disputes between the European Investment Bank and its employees, which are, inherently, comparable to disputes between the Union institutions and their officials or other staff under Articles 90 and 91 of the Staff Regulations of Officials, it is appropriate, in the absence of any provision of the Bank’s Staff Regulations on the subject, to be guided by the rules of the Staff Regulations of Officials and to apply them by analogy, while still taking account of the specific nature of the rules applicable to members of the Bank’s staff. In that respect, since the procedures available within the Bank for members of its staff to challenge decisions and their right to bring proceedings before the Court of Justice serve the same purpose as the procedures for lodging complaints and bringing proceedings provided for in Articles 90 and 91 of the Staff Regulations, the application by analogy of a time-limit of three months may consequently, as for officials and other European Union staff, represent a fair balance between the right to effective legal protection on the one hand and the need for legal certainty on the other.

Consequently, in the absence of a time-limit for submitting a request for the designation of a third doctor under the rules introduced by the Bank for the reimbursement of medical expenses, it must be considered that the request must be submitted within a period of three months. The designation procedure, by which a member of staff may challenge the opinion of the Bank’s Medical Adviser, is a precondition for referring the matter to the courts. It has more in common, in that respect, with the complaint procedure provided for in Article 90(2) of the Staff Regulations of Officials than with the conciliation procedure, which is merely optional.

(see paras 62-64, 66, 70, 72)

See:

De Nicola v EIB, paras 98 to 101

4. Even if it is rather regrettable, in the light of their duty to have regard for the welfare of staff and the principle of sound administration, that the competent departments do not fully inform a staff member of his rights and themselves appear to be unaware of the existence of a disputes procedure, there are no provisions requiring the European Investment Bank to notify a staff member who is the addressee of an act adversely affecting him of the legal remedies available and the time-limits for using them.

(see para. 79)