1 By its appeal, the European Investment Bank (EIB) seeks to have set aside the judgment of the General Court of the European Union of 24 November 2021, KL v EIB (T‑370/20, EU:T:2021:822; ‘the judgment under appeal’), by which the General Court, first, annulled the decisions of the EIB of 8 February and 8 March 2019, declaring KL fit to work and absent without justification since 18 February 2019, and the decision of the President of the EIB of 16 March 2020, which confirmed those decisions (together, ‘the decisions at issue’), and, secondly, ordered the EIB to pay KL an invalidity pension as from 1 February 2019 and default interest on that pension, less the sums which were paid to KL by way of remuneration which it appears, due to the payment of the invalidity pension, were not owed to him.
2 Article 46‑1 of the transitional pension scheme regulations applicable to EIB staff (‘the TPSR’) provides: ‘For the purpose of these Regulations, a member shall be considered incapacitated if, by reason of sickness, accident or disability, he is unable, physically or mentally, permanently to fulfil his duties or any other similar duties at an equivalent level and if invalidity has been established in accordance with Article 48.’
3 Article 48‑1 of the TPSR provides that invalidity must be recognised by a medical practitioner chosen by the EIB or, in the event of dispute, by the Invalidity Committee provided for in Article 13‑1 of those regulations.
4 According to Article 51‑1 of the TPSR: ‘If the invalid is gainfully employed, his invalidity pension shall be reduced to the extent that the sum of invalidity pension, child’s pension and income accruing from this employment exceeds the net remuneration corresponding to the step and function of the insured in the same family circumstances as at the time he was declared incapacitated.’
5 The first paragraph of Article 78 of the Staff Regulations of Officials of the European Union, in the version in force at the time of the events giving rise to the present dispute (‘the Staff Regulations’), provides: ‘An official shall be entitled, in the manner provided for in Articles 13 to 16 of Annex VIII, to an invalidity allowance in the case of total permanent invalidity preventing him from performing the duties corresponding to a post in his function group.’
6 The background to the dispute, as set out in paragraphs 1 to 39 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
7 KL was employed by the EIB from 1 September 2001.
8 After several periods of absence from the EIB, KL was informed by that body, on 22 May 2017, that the EIB’s medical officer had recommended that he be regarded as suffering from partial temporary incapacity (equivalent to 50% of his working time) during a period of six months from 1 June 2017.
9 On 1 June 2017, KL contested the recommendation of the EIB’s medical officer, arguing that he should have been regarded as suffering from total temporary incapacity to resume his duties. He therefore requested that the medical arbitration procedure provided for in Article 4 of Annex X to the administrative provisions applicable to EIB staff, adopted in implementation of the EIB Staff Regulations (‘the administrative provisions’), be implemented.
10 On 18 October 2017, KL was examined by the independent medical practitioner appointed by the EIB, who confirmed the opinion of the EIB’s medical officer. That conclusion was communicated to the EIB and to KL.
11 On 14 December 2017, the EIB informed KL that discussions were under way to allow him to return to work part time during a period of three months in a different position from the one he previously held, and that, between 1 January 2018 and his reinstatement, he would not have to go in to his place of work.
12 On 28 December 2017, KL’s legal adviser challenged the conclusions that the EIB intended to draw from the medical arbitration, maintaining that the procedure that should have been implemented was that of the Invalidity Committee provided for in Article 13‑1 of the TPSR.
13 Having agreed to initiate a procedure before the Invalidity Committee, on 9 November 2018, the EIB issued a conclusion (‘the conclusion of the Invalidity Committee of 9 November 2018’), which was worded as follows: ‘Owing to his psychological problems, [KL] is unfit to return to his former post and to his former employer. He is therefore invalid in relation to the EIB, but not invalid in relation to the general labour market. The Invalidity Committee was unanimous on that point.’
14 The same conclusion appears in a report by the medical practitioner appointed, in accordance with Article 13‑1 of the TPSR, by mutual agreement of the two other medical practitioners making up the Invalidity Committee, entitled ‘Medical evaluation of the Invalidity Committee of 9/11/2018’.
15 On 23 January 2019, on the basis of three forms submitted by the medical practitioners making up the Invalidity Committee, in which the box ‘not invalid’ had been ticked (‘the forms of 16 and 23 January 2019’), that committee notified the EIB of its decision, adopted unanimously, that KL was not invalid.
16 By decisions of 8 February and 8 March 2019, the EIB declared KL fit to work and absent without justification since 18 February 2019, the date from which it considered that KL should have resumed work.
17 On 16 March 2020, following the failure of the conciliation procedure initiated at the request of KL, the President of the EIB recognised the conclusions to that effect reached by the Conciliation Board. Consequently, the decisions of 8 February and 8 March 2019 were confirmed by the Conciliation Board.
18 By application lodged at the Registry of the General Court on 11 June 2020, KL brought an action for annulment of the decisions at issue. In support of his action, he raised two pleas in law alleging, first, infringement of Articles 46‑1 and 48‑1 of the TPSR and of Articles 11.1 and 11.3 of the administrative provisions, and also a manifest error of assessment and, secondly, breach of the duty to have regard for the well-being of staff. Only the first plea is relevant for the purposes of the present appeal.
19 By that plea, KL criticised the EIB for having found, in the decisions at issue, that he was fit to work and absent without justification since 18 February 2019. In that regard, KL noted that, according to the conclusion of the Invalidity Committee of 9 November 2018 and the medical evaluation of that committee, he had been considered invalid in relation to the EIB. He argued that that conclusion was sufficient for him to be declared invalid within the meaning of Article 46‑1 of the TPSR. The EIB, by contrast, stated that the TPSR recognised only one type of invalidity, namely invalidity in relation to the open labour market, and that the Invalidity Committee’s opinion had been expressed in the forms of 16 and 23 January 2019 stating that KL was not invalid.
20 As regards, in the first place, the documents constituting the opinion of the Invalidity Committee, the General Court, in paragraphs 58 to 73 of the judgment under appeal, held that the legality of the decisions at issue had to be assessed in the light of not only the forms of 16 and 23 January 2019, but also the conclusion of the Invalidity Committee of 9 November 2018, which had been confirmed by the medical evaluation of that committee.
21 In the second place, the General Court found, in paragraphs 74 to 81 of the judgment under appeal, that, according to the opinion of the Invalidity Committee, as evidenced by the documents mentioned in paragraph 20 above, KL could no longer perform duties within the EIB, but was still capable of carrying on a professional activity on the open labour market.
22 In the third place, the General Court, in paragraphs 83 to 85 of the judgment under appeal, held that the concept of ‘invalidity’ of an EIB staff member, within the meaning of Article 46‑1 of the TPSR and of Article 11.1 of the administrative provisions, must be assessed in the light of that staff member’s capacity to resume ‘his duties or any other similar duties at an equivalent level’; those other similar duties must also be within the EIB.
23 In order to reach that conclusion, the General Court considered, first, in paragraphs 86 to 89 of the judgment under appeal, that, by analogy with Article 78 of the Staff Regulations, those provisions of EIB rules referred to the classification of functions within that body. Secondly, the General Court, in paragraphs 90 to 93 of that judgment, noted that the Invalidity Committees established by the EIB are organs of that body and therefore do not have, from a legal point of view, competence to assess the capacity of EIB staff members to pursue professional duties outside that body. Thirdly, in paragraphs 94 to 99 of that judgment, the General Court rejected the EIB’s interpretation of Article 51‑1 of the TPSR, according to which that provision applies only to those rare situations in which a person declared invalid within the EIB pursues, outside that body, an activity different from that which he or she pursued within it.
24 In paragraphs 100 and 101 of the judgment under appeal, the General Court held that, since the Invalidity Committee had declared that KL was incapable of performing duties at the EIB and that the concept of ‘invalidity’, within the meaning of Article 46‑1 of the TPSR and of Article 11.1 of the administrative provisions, had to be assessed solely in relation to that body, the EIB was required to declare KL invalid, with the result that it had to be held that, by declaring him fit to work and absent without justification since 18 February 2019 in the decisions at issue, the EIB had infringed those provisions. Consequently, the General Court upheld KL’s first plea and annulled those decisions.
25 By its appeal, the EIB claims that the Court should: - set aside the judgment under appeal; - if the Court considers that the state of the proceedings so permits, grant the EIB the form of order sought at first instance, and - order KL to pay the costs at both instances.
26 KL contends that the Court should: - dismiss the appeal and - order the EIB to pay the costs.
27 The EIB raises two grounds in support of its appeal. The first ground of appeal, alleging misinterpretation of the concept of ‘invalidity’, comprises four parts, the first and fourth of which must be examined together. The second ground of appeal, divided into two parts, which must be examined together, alleges distortion of the facts as set out in paragraphs 58 to 81 of the judgment under appeal.
28 By the first part of the first ground of appeal, the EIB submits that, by holding in paragraphs 83 to 85 of the judgment under appeal that the ‘other similar duties at an equivalent level’ which a staff member must be incapable of performing in order to be considered invalid, within the meaning of Article 46‑1 of the TPSR and of Article 11.1 of the administrative provisions, must be performed within the EIB, the General Court interpreted the concept of ‘invalidity’ in a manner contrary to the internal rules of that body.
29 In the first place, the EIB maintains that, by using the words ‘his duties or any other similar duties at an equivalent level’, Article 46‑1 of the TPSR neither distinguishes duties performed within the EIB from those performed outside it nor refers to the classification of functions within that body. Nor does the form that the Invalidity Committee must complete make a distinction as to whether the invalidity is specific to the EIB or whether it should be assessed in relation to the open labour market, such that, by introducing such a distinction, the General Court altered the wording of those internal rules.
30 In the second place, according to the EIB, the interpretation adopted by the General Court amounts to mistaking the concept of ‘invalidity’, which recognises the protection afforded to a person who has become incapable of working in general, for that of ‘incapacity to work’, as provided for in most national legal systems, relating to the protection afforded to a person who has become incapable of working for a particular employer.
31 In the third place, that interpretation disregards the objective of the invalidity pension, which, in so far as it constitutes a social protection measure, consists in compensating for the loss of earnings suffered by an employee due to his or her permanent incapacity to perform his or her duties. To hold that a staff member may be considered incapable of working within the EIB but capable of carrying on an equivalent activity outside that body is manifestly at odds with that objective. Moreover, that interpretation has serious consequences for the financial equilibrium of the EIB’s pension scheme and raises problems concerning the use and management of public funds.
32 By the fourth part of the first ground of appeal, the EIB submits that, in paragraphs 98 to 100 of the judgment under appeal, the General Court misinterpreted Article 51‑1 of the TPSR, which provides for a reduction in the amount of the invalidity pension where the person who is declared invalid is gainfully employed, as referring to situations in which a person who is declared invalid within the EIB carries on any kind of professional activity. At the hearing before the General Court, the EIB submitted that that provision applied only to those rare situations in which a person declared invalid pursues outside the EIB an activity different from that which he or she pursued within it.
33 First of all, the EIB asserts that the General Court’s interpretation is contradictory inasmuch as it emphasised the general nature of the wording of Article 51‑1 of the TPSR, without any distinction as to the nature of the external activity pursued, while taking the view that Article 46‑1 of those regulations, also drafted in general terms, concerns a concept of ‘invalidity’ defined in relation to duties performed within the EIB.
34 Next, that body submits that the concept of ‘invalidity’, within the meaning of Article 51‑1 of the TPSR and of Article 46‑1 of those regulations, must be given an identical interpretation. The latter provision refers not only to duties performed within the EIB but also to those performed outside it. It is therefore contradictory to interpret Article 51‑1 of the TPSR as referring to a person declared invalid carrying on an activity outside the EIB that is equivalent in nature and intensity to the duties that he or she performed within that body, such that that article must refer to another type of work.
35 Last, and for the sake of completeness, the EIB maintains that the interpretation of Article 51‑1 of the TPSR adopted by the General Court would lead to unjust enrichment. Where a staff member who has been declared invalid receives an invalidity pension from the EIB while working full time outside that body in an equally demanding post, the genuine working capacity of that person raises questions.
36 KL disputes the EIB’s arguments.
37 By the first and fourth parts of its first ground of appeal, the EIB submits, in essence, that the General Court erred in law in interpreting the concept of ‘invalidity’ as set out, inter alia, in Article 46‑1 of the TPSR, having regard to its wording, the context of that provision and the purpose of granting an invalidity pension. In particular, the EIB submits that the General Court was wrong to consider that the words ‘other similar duties at an equivalent level’, within the meaning of that provision, referred only to duties performed within the EIB.
38 First of all, it is admittedly not apparent from the wording of Article 46‑1 of the TPSR that that article expressly refers to other similar duties at an equivalent level within the EIB. However, by referring to the member’s incapacity to fulfil ‘his duties or any other similar duties at an equivalent level’, that article may be interpreted, based on the repetition of the word ‘duties’, as referring, in addition to the relevant duties of the staff member concerned, to other duties within the EIB.
39 That interpretation is supported by the fact that the term ‘duties’, used in Article 46‑1 of the TPSR, is a legal concept of a regulatory nature. Moreover, it must be noted that Article 46‑1 of the TPSR does not use a broader term, such as ‘gainfully employed’, used in Article 51‑1 of the TPSR, which itself refers to employment on the open labour market.
40 Next, as regards the context of Article 46‑1 of the TPSR, in the first place, the EIB rightly submits that the concept of ‘invalidity’, within the meaning of Articles 46‑1 and 51‑1 of the TPSR, must be given an identical interpretation. It cannot, however, be inferred that the General Court erred in law in holding, in paragraphs 96 to 98 of the judgment under appeal, that Article 51‑1 of the TPSR, in the light of its general wording, cannot be understood as referring only to an activity pursued outside the EIB that is different from that which the person declared invalid pursued within that body, but that it must be interpreted as referring to the pursuit of any activity, including an activity at a level equivalent to that which that person pursued within the EIB.
41 In that regard, first, it is necessary to reject the EIB’s claim that the General Court’s interpretation of Articles 46‑1 and 51‑1 of the TPSR is contradictory on the ground that, according to that body, both of those provisions are drafted in general terms, whereas the General Court relied solely on the general nature of the second provision. As is apparent from paragraph 39 above, Article 51‑1 of the TPSR uses the general concept of being ‘gainfully employed’, whereas Article 46‑1 uses the term ‘duties’, which, as is apparent from paragraph 39, refers to the regulations applicable to the staff of a specific institution or body.
42 Secondly, the interpretation of Article 51‑1 of the TPSR adopted by the General Court is consistent with the interpretation of Article 46‑1 of those regulations according to which the words ‘other similar duties at an equivalent level’ refer to other similar duties within the EIB. It would be contradictory to consider that, pursuant to Article 46‑1 of the TPSR, a person is declared invalid on the grounds that he or she is incapable of fulfilling his or her duties or an activity at an equivalent level on the open labour market while admitting that, under Article 51‑1 of those regulations, that person may pursue such an activity.
43 In the second place, it is necessary to reject the EIB’s argument that the interpretation of the concept of ‘invalidity’ corresponds to the meaning of that term in different national legal systems, whereas the interpretation adopted by the General Court corresponds to the concept of ‘incapacity to work’ in those legal systems. In that regard, suffice it to note, as the EIB did in its appeal, that the TPSR and the administrative provisions are part of the regulatory framework of the EIB, which is specific to it and distinct from rules of national law.
44 Last, although, admittedly, the award of an invalidity pension meets a social objective, in that it seeks to ensure that a person who is unable, physically or mentally, permanently to fulfil his or her duties or any other similar duties at an equivalent level can support himself or herself, the interpretation of Article 46‑1 of the TPSR according to which those other duties must be within the EIB is, in view of the scheme of those regulations, consistent with that objective.
45 The mechanism provided for in Article 51‑1 of the TPSR, by which the invalidity pension is reduced to the extent that the sum of invalidity pension, child’s pension and income accruing from the gainful employment of the person declared invalid exceeds the amount of net remuneration which that person received when he or she was declared invalid, has the effect of ceasing payment of that invalidity pension where the person concerned takes up an activity the income from which is at least equivalent to the remuneration that person received when he or she was employed by the EIB.
46 Therefore, that mechanism is intended to prevent situations of unjust enrichment of the person declared invalid as well as negative consequences on the financial equilibrium of the EIB’s pension scheme mentioned by that body.
47 It follows that the arguments put forward by the EIB in the first and fourth parts of the first ground of appeal are not such as to demonstrate that the interpretation adopted by the General Court, in the judgment under appeal, of the concept of ‘invalidity’ in Article 46‑1 of the TPSR is vitiated by an error of law. The first and fourth parts of that ground of appeal must therefore be rejected as unfounded.
48 By the second part of the first ground of appeal, the EIB submits that the General Court erred in law in holding, in paragraphs 90 to 93 of the judgment under appeal, that the Invalidity Committees established by that body have competence to rule only on the capacity of EIB staff members to work within that body. In that regard, it claims that such an Invalidity Committee makes medical findings that must be regarded as definitive where they are made under proper conditions. The task of the medical practitioners who are members of that committee is solely to provide a medical opinion and not to comment on the working environment.
49 The EIB asserts that Article 46‑1 of the TPSR does not distinguish invalidity declared with regard to duties performed within the EIB from invalidity declared with regard to the open labour market; nor does it impose a strict limit on the competence of the Invalidity Committees responsible for assessing the state of health of persons who may be recognised as invalid.
50 The risk, referred to by the General Court, of a contradiction between the assessment of an Invalidity Committee of the EIB and one which may be issued by Invalidity Committees established by other EU institutions or national authorities is hypothetical. A medical assessment, by its technical nature, should, in the absence of new information, be shared by other health professionals. The competence of the Invalidity Committee cannot be limited by the possibility that other medical practitioners may reach different conclusions.
51 KL contends that the EIB’s arguments are unfounded.
52 As is apparent from paragraphs 37 to 47 above, the General Court was right to hold, in paragraph 100 of the judgment under appeal, that the concept of ‘invalidity’, within the meaning of Article 46‑1 of the TPSR and of Article 11.1 of the administrative provisions, is to be interpreted as referring to an EIB staff member who has been declared, by an Invalidity Committee established by the EIB, incapable of resuming his or her duties or other similar duties at an equivalent level within that body.
53 It necessarily follows that the Invalidity Committees established by that body, which, in accordance with Article 48‑1 of the TPSR, have competence to establish invalidity in the event of a dispute, exercise their powers only with regard to the capacity of the person concerned to fulfil his or her duties or other similar duties at an equivalent level within the EIB.
54 It should be added that, although it is true that the opinion of such a committee is of a medical nature, the fact remains that the assessment carried out by that committee must, as KL maintains in his response, take account of the working environment, from which the tasks which the person concerned is required to carry out cannot be isolated. This is particularly so where, as in the present case, psychological problems are the cause of the invalidity.
55 Consequently, the second part of the first ground of appeal must be rejected as unfounded.
56 By the third part of the first ground of appeal, the EIB submits that the General Court, in paragraphs 86 to 89 of the judgment under appeal, erred in law by interpreting Article 46‑1 of the TPSR and Article 11.1 of the administrative provisions by analogy with Article 78 of the Staff Regulations. In that regard, the EIB submits that such an interpretation by analogy presupposes the existence of, first, a close relationship between the two legal regimes at issue and, secondly, a lacuna in the first regime that is incompatible with a general principle of EU law. The General Court did not rely on the existence of such elements.
57 Moreover, the wording of Article 46‑1 of the TPSR neither makes a distinction between the duties performed within the EIB and those performed outside that body, nor does it refer, unlike Article 78 of the Staff Regulations, to the classification of functions within that body. By relying on similarities between those two provisions, the General Court thus disregarded those differences.
58 The EIB adds, first, that applying Article 78 of the Staff Regulations to it by analogy calls into question the autonomy of its ‘legal system’ vis-à-vis other bodies of the European Union. Secondly, the EIB’s situation is different from that of the EU institutions, due to its size and also the diverse range of jobs available within it.
59 KL disputes the EIB’s arguments.
60 As is apparent from paragraphs 37 to 47 and 52 above, the General Court was right to hold, in paragraph 100 of the judgment under appeal, that the concept of ‘invalidity’, within the meaning of Article 46‑1 of the TPSR and of Article 11.1 of the administrative provisions, is to be interpreted as referring to an EIB staff member who has been declared, by an Invalidity Committee established by the EIB, incapable of resuming his or her duties or other similar duties at an equivalent level within that body.
61 Consequently, even if the General Court erred in basing that conclusion in part on an interpretation of that provision by analogy with Article 78 of the Staff Regulations, as the EIB submits in the third part of the first ground of appeal, that conclusion must be held to be ineffective.
62 In accordance with settled case-law, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of the judgment, any defects that could vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a ground of appeal in which such defects are relied on is ineffective and must be dismissed (judgment of 17 October 2019, Alcogroup and Alcodis v Commission, C‑403/18 P, EU:C:2019:870, paragraph 53 and the case-law cited).
63 In those circumstances, the third part of the first ground of appeal must be rejected as ineffective and, accordingly, that ground of appeal must be rejected in its entirety.
64 By its second ground of appeal, the EIB alleges that the General Court distorted the facts in paragraphs 58 to 81 of the judgment under appeal by taking the view that the conclusion of the Invalidity Committee of 9 November 2018, the medical evaluation of that committee and the forms of 16 and 23 January 2019 constituted, together, the opinion of that committee.
65 By the first part of that ground of appeal, the EIB submits that, contrary to the findings of the General Court, the conclusion of the Invalidity Committee of 9 November 2018 and the medical evaluation of that committee cannot be components of that opinion, as they have not been countersigned by all members of the Invalidity Committee - the proceedings of such a committee are collective and require, in principle, in the light of the outcome of the procedure, that each member countersign the same document.
66 The EIB argues that there is a contradiction in paragraph 72 of the judgment under appeal, according to which the Invalidity Committee, without examining KL, was able to reach a decision on 9 November 2018, which was subsequently confirmed by the chairperson of that committee on 21 November 2018, after examining the applicant. According to the EIB, in addition to that finding being speculative, the chairperson of such a committee should not be able to replace the other members of that committee in making their assessment.
67 With regard to the General Court’s finding in paragraph 66 of the judgment under appeal that the content of the abovementioned documents was not contested by the other members of the Invalidity Committee, the EIB points out that only the forms of 16 and 23 January 2019 were signed by all members of that committee and, therefore, they alone constitute the formal opinion.
68 As regards the second part of the present ground of appeal, the EIB states that the finding in paragraph 81 of the judgment under appeal that the Invalidity Committee’s opinion was that KL could no longer perform duties within the EIB, but was capable of carrying on a professional activity on the open labour market, is not apparent from the forms signed by all the members of that committee in January 2019.
69 KL disputes the EIB’s arguments.
70 Although the EIB alleges distortion of the facts by the General Court, it is apparent from its arguments that, by its second ground of appeal, the EIB is in fact seeking to challenge the General Court’s legal characterisation of the conclusion of the Invalidity Committee of 9 November 2018 and of the medical evaluation of that committee. In its view, those documents are not, as the General Court held, to be taken into account in order to determine the content of the opinion of the Invalidity Committee, since only the forms of 16 and 23 January 2019 constitute the opinion of that committee.
71 In that regard, the EIB relies, in essence, on the argument that the first documents were not signed by all members of the Invalidity Committee. In so doing, it merely repeats the arguments it raised before the General Court, without specifying in what way the General Court’s response to those arguments, as set out, in particular, in paragraph 67 of the judgment under appeal, is vitiated by an error of law.
72 It must be borne in mind that an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely repeats or reproduces the pleas in law and arguments previously submitted to the General Court amounts, in reality, to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 45 and the case-law cited).
73 Consequently, the second ground of appeal must be rejected as inadmissible.
74 It follows from all of the foregoing considerations that the appeal must be dismissed.
75 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
76 In the present case, since KL has applied for costs and the EIB has been unsuccessful, the latter must be ordered to bear its own costs relating to the appeal and to pay those incurred by KL.