JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Single Judge)

18 December 2015

Case F‑82/12

Carlo De Nicola

v

European Investment Bank (EIB)

(Civil service — EIB staff — Appraisal — New 2007 appraisal report — Unlawfulness of the decision of the Appeals Committee — Refusal to promote an official — No need to adjudicate)

Application:      under Article 270 TFEU, in which Mr De Nicola seeks, in particular, first, annulment of the decision of the Appeals Committee (‘the Appeals Committee’) of the European Investment Bank (EIB or ‘the Bank’) of 15 February 2012 rejecting his internal appeal against the new appraisal of his performance for 2007, that new appraisal having arisen from the annulment of his appraisal report for 2007 and the annulment of the decision refusing to promote him by the judgment of 8 March 2011 in De Nicola v EIB (F‑59/09, EU:F:2011:19, partly annulled on appeal by the judgment of 16 September 2013 in De Nicola v EIB, T‑264/11 P, EU:T:2013:461), secondly, annulment of the new 2007 appraisal report and of all ‘connected, consequent and prior acts’, thirdly, annulment of the promotion decisions of 29 April 2008 relating to the 2007 appraisal procedure, and, fourthly, an order that the Bank reconstitute his career and pay him damages for the material and non-material harm which he considers he has suffered.

Held:      The decision of the Appeals Committee of the European Investment Bank of 15 February 2012 is annulled. There is no need to rule on the pleas seeking the annulment of the new appraisal report for 2007. The remainder of the action is dismissed. The European Investment Bank is to bear its own costs and is ordered to pay the costs incurred by Mr De Nicola.

Summary

1.      Officials — Staff of the European Investment Bank — Reports procedure — Appraisal report — Challenge before the Appeals Committee of the EIB — Scope of the Appeals Committee’s review

(Staff Regulations of the European Investment Bank, Art. 22)

2.      Actions brought by officials — Staff of the European Investment Bank — Judgment annulling a measure — Effects — Obligation to implement — Judgment annulling a decision of the Appeals Committee on an appraisal report — Obligation for the EIB to re-submit to the Committee the challenge brought by the person who lodged the internal appeal

(Art. 266 TFEU)

1.      The fact that the Appeals Committee established by the European Investment Bank in connection with appraisal of its staff is able to strike out any statement contained in an appraisal report on a staff member implies that that committee has power to reassess each of those statements on its merits before striking it out. This power, therefore, clearly extends beyond reviewing the legality of and setting aside 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. This full power of review on the part of the Appeals Committee is confirmed by the power expressly given to it to modify the final assessment of merits relating to the overall appraisal of the performance of the person bringing the internal appeal. Alteration of the merit score of the individual concerned implies that the Committee carries out a detailed review of all of the assessments of merit contained in the report in issue, considering whether they involve any errors of assessment, fact or law, and also that it may, where appropriate, substitute itself for the evaluator and carry out a fresh assessment of those merits.

Ultimately, the Appeals Committee must exercise full review of the appraisal report before it, examining the validity of each of the assessments contained in the report, since its review is not limited to ascertaining whether there has been a manifest error of assessment.

(see paras 47-49)

See:

Judgments of 27 April 2012 in De Nicola v EIB, T‑37/10 P, EU:T:2012:205, para. 41, and 16 September 2013 in De Nicola v EIB, T‑618/11 P, EU:T:2013:479

2.      Given the scope of the provisions on the powers of the Appeals Committee established by the European Investment Bank in connection with appraisal of its staff, the annulment by the Union judicature of a decision of that Committee is capable, on an administrative level, of procuring an advantage for the person who brought the internal appeal and, consequently, of requiring the EIB to re-submit to the Appeals Committee the challenge brought by the appellant, in order for the Committee to issue a correct decision, exercising its powers to the full, on the appraisal report in question.

(see para. 65)

See:

Order of 21 September 2015 in De Nicola v EIB, T‑848/14 P, EU:T:2015:719, para. 40