CELEX: 62001TJ0120
Language: en
Date: 2004-12-16 00:00:00
Title: Judgment of the Court of First Instance (Third Chamber) of 16 December 2004. # Carlo De Nicola v European Investment Bank. # Admissibility - Suspension. # Joined cases T-120/01 and T-300/01.

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)
      16 December 2004
      Joined Cases T-120/01 and T-300/01
      Carlo De Nicola
      v
      European Investment Bank
      (Staff of the European Investment Bank – Admissibility – Working conditions – Disciplinary procedure – Suspension – Dismissal without notice)
      Full text in Italian II - 0000
      Application:         in Case T-120/01, essentially, first, for annulment of the letter from the Director of Human Resources of the European Investment
         Bank of 6 March 2001 concerning the conditions for the reinstatement of the applicant following the judgment of the Court
         of First Instance of 23 February 2001 in Joined Cases T-7/98, T‑208/98 and T-109/99 De Nicola v EIB [2001] ECR-SC I-A-49 and II-185 and annulment of the decision of the President of the Bank of 22 May 2001 to suspend him
         from his duties and, second, for damages, and, in Case T-300/01, essentially, first, for annulment of the decision of the
         President of the Bank of 6 September 2001 to dismiss him without notice and without a severance grant and, second, for damages.
      
      Held:         The decision of the defendant of 22 May 2001 suspending the applicant is annulled. The decision of the defendant of 6 September
         2001 dismissing the applicant is annulled. The defendant is ordered to pay the applicant, in compensation for the partial
         failure to implement paragraph 2 of the operative part of the judgment of 23 February 2001, the sum of EUR 3 716, and, where
         appropriate, financial compensation for leave not taken with default interest from 1 June 2001 until payment. The rate of
         default interest applicable is calculated on the basis of the rate fixed by the European Central Bank for principal refinancing
         operations applicable during the period concerned, plus two percentage points. The defendant is ordered to pay the applicant
         the sum of EUR 2 315 by way of salary not received for the period from 1 March 2001 to 31 August 2001 with default interest
         from 1 June 2001 until payment. The rate of default interest applicable is calculated on the basis of the rate fixed by the
         European Central Bank for principal refinancing operations applicable during the period concerned, plus two percentage points.
         The defendant is ordered to pay the applicant arrears of salary not received from 1 September 2001 with default interest reduced
         by the sum of EUR 1 290 paid to the applicant by way of geographical mobility allowance for the month of September 2001. The
         rate of default interest applicable is calculated on the basis of the rate fixed by the European Central Bank for principal
         refinancing operations applicable during the period concerned, plus two percentage points. The defendant is ordered to pay
         the applicant the sum of EUR 10 000 by way of reparation for non-material damage. The defendant is ordered to pay its own
         costs including those incurred in interim proceedings, and half of the costs incurred by the applicant in Cases T-120/01 and
         T-300/01 and in the interim proceedings in those cases. The remainder of the action is dismissed.
      
      Summary
      1.     Officials – Staff of the European Investment Bank – Actions – Conditions of admissibility – Exhaustion of previous conciliation
            phase – Prior lodging of a request or a complaint – Excluded – Optional nature of such a procedure 
      (Staff Regulations, Arts 90 and 91)
      2.     Officials – Staff of the European Investment Bank – Organisation of departments – Measures to comply with a judgment of the
            Court of First Instance – Discretion of the administration – Scope – Judicial review – Limits 
      3.     Officials – Staff of the European Investment Bank – General working conditions adopted by the Bank – Code of conduct – Whether
            applicable without prior consent of staff concerned 
      4.     Officials – Staff of the European Investment Bank – Powers of the President – Decisions with implications for employment relationships
            – Delegation – Whether permissible  – Conditions
      (Statute of the European Investment Bank, Art. 13(7))
      5.     Officials – Staff of the European Investment Bank – Actions – Act adversely affecting an official – Concept – Decision ordering
            suspension of a member of staff
      (Staff Regulations, Arts 88, 90 and 91)
      6.     Officials – Staff of the European Investment Bank – Disciplinary measures –  Observance of the rights of the defence –  Obligation
            to hear an individual before suspending him under Article 39 of the Staff Regulations 
      7.     Officials – Staff of the European Investment Bank – Actions – Action against a measure of general application – Article 39
            of the Staff Regulations – Inadmissibility 
      (Art. 236 EC)
      8.     Officials – Staff of the European Investment Bank – Actions – Subject-matter – Issue of directions to the administration –
            Inadmissibility 
      9.     Officials – Actions – Action for damages – Annulment of the contested unlawful measure – Sufficient remedy 
      10.   Officials – Staff of the European Investment Bank – Disciplinary measures – Sanction – Dismissal – Discretion of the administration
            – Judicial review – Scope – Limits 
      11.   Officials – Staff of the European Investment Bank – Disciplinary measures – Disciplinary proceedings – Burden of proof 
      12.   Officials – Staff of the European Investment Bank  – Disciplinary measures – Sanction – Disclosure, by a member of staff,
            of confidential information and spreading of allegations damaging to the reputation of the Bank and certain of his colleagues
            – Mitigating circumstances – Not taken into account – Manifest error of assessment 
      (Art. 280 EC)
      13.   Officials – Disciplinary measures – Sanction – Errors in the recording or assessment of the facts complained of – Judicial
            review – Scope – Limits 
      14.   Officials – Staff of the European Investment Bank – Actions – Determination of sums due by way of remuneration – Unlimited
            jurisdiction 
      15.   Procedure – Oral procedure – Report for the Hearing drawn up by the Judge-Rapporteur – Observations of the parties – Purpose
            
      16.   Procedure – Measures of inquiry – Expert report – Determination of sums due by way of remuneration in the course of proceedings
            in a staff case – Not permissible – Jurisdiction of the Court of First Instance 
      17.   Officials – Remuneration – Order for payment of arrears of remuneration – Default interest – Calculation – Starting point
            
      18.   Officials – Actions – Unlimited jurisdiction – Claim for payment – Payment of default interest – Purpose  – Calculation
      19.   Officials – Staff of the European Investment Bank – Resignation – Compensation for sums due between the parties following
            a judgment annulling the refusal to accept a retraction – Scope 
      20.   Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Damage – Causal link – Cumulative
            conditions 
      21.   Officials – Non-contractual liability of the institutions – Unlawful decision imposing summary dismissal for grave misconduct
            – Assessment of financial and professional damage – Account taken of refusal by member of staff to accept proposals intended
            to limit damage 
      1.     The admissibility of an action brought by a member of the staff of the European Investment Bank (EIB), is in no way subject
         to the exhaustion of an amicable settlement procedure before the Conciliation Board, provided for by Article 41 of the Staff
         Regulations of the EIB, nor to the prior lodging of a request or a complaint. Although the conciliation procedure pursues
         the same objective as the compulsory pre-litigation procedure established by Article 90 of the Staff Regulations of Officials
         of the European Communities (‘the Staff Regulations’) that is to say to facilitate an amicable settlement of differences by
         giving the administration the opportunity to alter or reverse the contested act and the official or employee concerned the
         option of accepting the reasons on which the contested act is based and, where appropriate, of refraining from bringing proceedings,
         that alone cannot call into question the principle that the EIB, which alone has the authority to lay down the conditions
         for admissibility of actions brought by its staff, made no provision for an obligation on those staff to submit a complaint
         to it or make use of procedures for the internal settlement of disputes before bringing the matter before the Court of First
         Instance.
      
      In that connection, it should be borne in mind that, by excluding the application of Article 283 EC which gives the Council
         the authority to lay down the provisions of the Staff Regulations of Officials and the Conditions of Employment of Other Servants
         of the European Communities, the Statute of the EIB confers on it functional autonomy as regards the arrangements applying
         to its staff, which it exercises in opting for a contractual system rather than a system governed by public service regulations,
         so that the provisions of the Staff Regulations cannot be applied as such to employment relationships between the EIB and
         its staff.
      
      (see paras 54-57, 60)
      See: 110/75 Mills v EIB [1976] ECR 955, para. 22; 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 9; T‑7/98, T‑208/98 and T‑109/99 De Nicola v EIB [2001] ECR-SC I‑A‑49 and II‑185, paras 90, 91, 95 and 96; T‑385/00 Seiller v EIB [2003] ECR-SC I‑A‑161 and II‑801, paras 50, 51, 65 and 73
      
      2.     The EIB, like the other Community institutions and bodies, has wide discretion in the organisation of its services and in
         the assignment of its staff to perform the public service responsibilities entrusted to it. The scope of that discretion means
         that the application of temporary measures taken by it in respect of a member of staff in order to comply with the operative
         part of a judgment of the Court of First Instance cannot be subject to the consent of the person concerned. Such a condition
         would have the effect of imposing an intolerable restriction on the EIB’s discretion in organising its services and in adapting
         that organisation to changing requirements.
      
      Having regard to the scope of that discretion, review by the Community judicature of the lawfulness of such measures must
         be confined to the question whether the EIB remained within the reasonable limits of the requirements of the interest of the
         service and did not use its discretion in a manifestly wrong way. 
      
      (see paras 83-86)
      See: 161/80 and 162/80 Carbognani and Others v Commission [1981] ECR 543, para. 28; T‑80/92 Turner v Commission [1993] ECR II‑1465, para. 53; T‑28/97 Hubert v Commission [1998] ECR-SC I‑A‑435 and II‑1255, para. 76; T‑143/98 Cendrowicz v Commission [1999] ECR-SC I‑A‑273 and II‑1341, para. 23; T‑120/01 R De Nicola v EIB [2001] ECR-SC I‑A‑171 and II‑783, para. 28; T‑178/00 and T‑341/00 Pflugradt v ECB [2002] ECR II‑4035, para. 54
      
      3.     As in the case of the other general terms of employment adopted by the EIB in the exercise of its regulatory powers, the applicability
         of the code of conduct approved by the Management Committee of the EIB, laying down rules in the area of professional ethics,
         does not depend on the prior consent of the member of staff concerned. 
      
      (see para. 92)
      4.     It does not follow from Article 13(7) of the EIB Statute, which grants the President the power to engage and discharge its
         staff, that all decisions which have repercussions on employment relationships within the EIB must necessarily be adopted
         by its President personally. On the contrary, the effectiveness of the EIB’s organisation requires, as in any other institution
         or any other Community body and, more generally, in any undertaking, that it be possible to delegate the adoption of such
         decisions to certain groups or certain persons within those institutions or bodies. In particular, as regards the practical
         management of employment relationships within a body such as the EIB, it may prove useful for the adoption of the necessary
         decisions in that context to be delegated, by a formal instrument of delegation specifying the extent of the powers thus delegated,
         to a person with the necessary qualifications for that purpose. 
      
      (see paras 97-98)
      5.     The case-law according to which a decision to suspend an official under Article 88 of the Staff Regulations is an act adversely
         affecting him, which may form the subject-matter of an application for annulment in the conditions laid down in Articles 90
         and 91 of the Staff Regulations, may be applied to decisions which the President of the EIB may adopt on the basis of Article
         39 of the Staff Regulations of the EIB. That applies a fortiori since the fourth paragraph of that provision provides that
         dismissal is to take effect from the day of suspension. 
      
      (see paras 113-115)
      See: 18/65 and 35/65 Gutmann v Commissionof the EAEC [1966] ECR 103, 116; T‑203/95 Connolly v Commission [1999] ECR-SC I‑A‑83 and II‑443, para. 33
      
      6.     Respect for the rights of the defence in any proceedings against any person which may culminate in a measure adversely affecting
         him constitutes a fundamental principle of Community law which must be observed even in the absence of any express provision
         to that end. 
      
      A decision to suspend a member of staff of the EIB adopted under Article 39 of the Staff Regulations of the EIB constitutes
         an act adversely affecting that official and, while the adoption of a decision to suspend an official where there is an allegation
         of serious misconduct should be a matter of urgency, such a decision must be adopted with due observance of the rights of
         the defence.  Consequently, unless special circumstances are duly established, a decision to suspend an official may be adopted
         only after the official has been given the opportunity to express his point of view on the evidence against him and on which
         the appointing authority proposes to base that decision. It is only in special circumstances that it might prove impossible
         in practice, or incompatible with the interest of the service, to hold a hearing before adopting a decision suspending an
         official.  In such circumstances, the requirements flowing from the principle of observance of the rights of the defence may
         be satisfied if the official concerned is heard within a very short time of the decision to suspend him being adopted. 
      
      (see paras 121-124)
      See: Gutmann v Commission of the EAEC, cited above, 116; C‑32/95 P Commission v Lisrestal and Others [1996] ECR I‑5373, para. 24; Connolly v Commission, cited above, para. 33; T‑211/98 F v Commission [2000] ECR-SC I‑A‑107 and II‑471, para. 26 et seq.; T‑333/99 X v ECB [2001] ECR II‑3021, para. 183
      
      7.     As a provision of the Staff Regulations of the EIB adopted by the EIB in exercise of the regulatory powers conferred on it
         under its Statute, Article 39 of those regulations constitutes a measure of general application and, therefore, cannot be
         the subject of a direct action before the Court of First Instance. 
      
      (see paras 131-132)
      See: T‑192/99 Dunnett and Others v EIB [2001] ECR II‑813, para. 62
      
      8.     It is not for the Community Court to make findings of principle or to issue directions to the administration so that a request
         by a member of staff of the EIB for a declaration that the code of conduct approved by the Management Committee of the EIB
         does not apply to him must be declared inadmissible.
      
      (see paras 136-137)
      See: X v ECB, cited above, para. 48
      
      9.     Non-contractual liability on the part of the European Community requires that the applicant prove the illegality of the allegedly
         wrongful act committed by the Community institution, the actual harm suffered and the existence of a causal link between the
         act and the damage alleged to have been suffered. 
      
      The condition concerning the existence of unlawful conduct is satisfied where the Court of First Instance annuls, on the ground
         of breach of the rights of the defence, a decision to suspend a member of staff adopted without his being heard beforehand.
         However, the annulment of the decision to suspend is in itself appropriate and, in principle, adequate compensation for the
         non-material damage suffered by the person concerned in that respect. 
      
      (see paras 140-142)
      See: T‑177/96 Costacurta v Commission [1998] ECR-SC I‑A‑225 and II‑705; T‑7/98, T-208/98 and T-109/99 De Nicola v EIB, cited above,  para. 332
      
      10.   A decision imposing on a member of staff of the EIB the penalty of summary dismissal for grave misconduct without notice and
         without a severance grant necessarily implies fine consideration on the part of the institution in view of the serious and
         irrevocable consequences for the person concerned of such a decision.  The EIB has wide discretion in that respect and the
         Court’s role is limited to ascertaining whether the facts on which the decision is based are materially accurate and whether
         there has been any manifest error in the assessment of the facts. 
      
      (see paras 167-168)
      See: T‑140/97 Hautem v EIB [1999] ECR-SC I‑A‑171 and II‑897, para. 66
      
      11.   In a disciplinary procedure initiated against a member of staff of the EIB the burden of proving the allegations made against
         him fall on the competent authority.
      
      (see para. 180)
      12.   In the course of the assessment of the seriousness of the disclosure, by a member of staff of the EIB, without authorisation
         or prior notice to his superiors, of facts, information and internal and confidential documents which resulted in the spreading
         of allegations severely damaging to the reputation of certain of his colleagues and of the EIB, the facts, first, that that
         information was sent to Members of the European Parliament, responsible inter alia for taking measures to counter fraud and
         any other illegal activities affecting the financial interests of the Community, including those of the EIB, and then that
         it was at the express request of its Vice-President that that information was sent in strict confidence to the Committee on
         Budgetary Control of the European Parliament and that subsequently the member of staff was heard several times by that committee
         and attended various interviews with members of the European Anti-Fraud Office, constitute mitigating circumstances.
      
      Although it is true that such circumstances do not in themselves justify the conclusion that the facts alleged do not constitute
         breaches of the obligations as regards conduct laid down by the EIB, the fact remains that the EIB is bound to take account
         of them as mitigating circumstances in order to decide on an appropriate disciplinary measure, as it would otherwise commit
         a manifest error of assessment as regards the seriousness of the facts complained of.
      
      (see paras 208-214)
      See: C‑15/00 Commission v EIB [2003] ECR I‑7281, para. 125
      
      13.   Where the Court of First Instance upholds a plea of errors in the findings or assessment of facts relied on to impose a penalty
         on an official, the decision imposing the penalty must be annulled in its entirety having regard to the unitary and indivisible
         nature of the disciplinary penalty contained in that decision and the fact that that penalty is based on the claims upheld
         in that decision considered as a whole. Under those circumstances, it is not for the Court of First Instance to put itself
         in the place of the disciplinary authority to decide on the disciplinary penalty which might be appropriate, if need be, for
         the claims which are established following examination of the plea in question.
      
      (see para. 219)
      See: T‑21/01 Zavvos v Commission [2002] ECR-SC I‑A‑101 and II‑483, para. 316; T‑89/01 Willeme v Commission [2002] ECR-SC I‑A‑153 and II‑803, para. 83
      
      14.   Disputes between the EIB and its staff regarding the determination of sums due under the rules applicable to the remuneration
         and  benefits payable to staff  are of a pecuniary nature so that the Court of First Instance has unlimited jurisdiction in
         that regard.
      
      (see para. 257)
      See: C‑449/99 P EIB v Hautem [2001] ECR I‑6733, paras 94 and 95
      
      15.   In accordance with the essential principles governing the procedure before the Court of First Instance, the purpose of the
         observations of the parties on the Report for the Hearing is solely to correct any errors or inaccuracies in the report sent
         to the parties before the hearing and not to allow them to respond to the arguments of their opponent and still less to put
         forward new arguments.
      
      (see para. 261)
      16.   Although it is true that, in certain specific circumstances, the Court of First Instance may order the appointment of an expert,
         the fact remains that such an expert would not be asked to conduct detailed research of a factual or technical nature. It
         is not in any event for the Court of First Instance, in proceedings in a staff case, to delegate to such an expert the power
         to verify what is actually owed to an official by way of remuneration in the light of the documents produced before the Court
         and to take decisions directly regarding the payment of such sums, given that such delegation would amount to transferring
         to that expert the power to rule on part of the case. This finding applies a fortiori where the vagueness of certain relevant
         provisions requires the exercise of a certain discretion by the Court of First Instance. 
      
      (see para. 265)
      17.   Where an institution has been ordered to pay an official arrears of remuneration with default interest, the starting point
         for the calculation of such interest is the moment when the sums at issue should have been paid to the official in accordance
         with the applicable provisions. In the absence of clear indications in that regard in those provisions, it is for the Court
         of Fist Instance to determine at what point they ought reasonably to have been paid to him.
      
      (see para. 272)
      18.   As the purpose of default interest is to make good damage suffered by a party by the failure of another party to pay certain
         sums, it continues to be payable until those sums are actually paid. 
      
      (see para. 273)
      19.   Where the Court of First Instance annuls ex tunc the effects of a refusal by the EIB to accept the retraction of the resignation of a member of its staff, the EIB is entitled
         to offset the amounts due by way of arrears of remuneration and default interest by the full amount of the sums paid to the
         member of staff on his departure, that is to say, the net amount of the severance grant and the resettlement allowance, since
         there is no longer any reason for payment of those sums and therefore their return is justified. 
      
      On the other hand, in the absence of requests for repayment of the severance grant and the resettlement allowance, the EIB
         cannot require that default interest be paid on those amounts.
      
      (see paras 282-283)
      20.   In an application for damages brought by an official, the Community can be held liable only if a number of conditions are
         satisfied as regards the illegality of the allegedly wrongful act of the institutions, the actual harm suffered and the existence
         of a causal link between the act and the damage alleged to have been suffered, and the burden of proving that all those conditions
         have been met falls to the applicant. The three conditions giving rise to the liability of the Community are cumulative, which
         means that, if one of them is not met, the liability of the Community does not arise.
      
      (see paras 303-304)
      See: C‑257/98 P Lucaccioni v Commission [1999] ECR I‑5251, para. 14; T‑165/95 Lucaccioni v Commission [1998] ECR-SC I‑A‑203 and II‑627, para. 57; T‑205/96 Bieber v Parliament [1998] ECR-SC I‑A‑231 and II‑723, para. 48; T‑338/00 and T‑376/00 Morello v Commission [2002] ECR-SC I‑A‑301 and II‑1457, para. 150
      
      21.   A decision imposing summary dismissal for grave misconduct is a measure of such gravity that it is liable to hamper seriously
         the chances of the member of staff concerned of finding appropriate employment on the job market and is, therefore, liable
         to cause him financial and professional damage. However, in the assessment of that damage, account must be taken of the proposals
         of his employer with a view to facilitating his return to the job market and thus reducing that damage. In such a case, the
         annulment of the decision to dismiss was in itself adequate compensation for that damage.
      
      (see para. 306)