JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Single Judge)

10 July 2014

Joined Cases F‑95/11 and F‑36/12

CG

v

European Investment Bank (EIB)

(Civil service — EIB staff — Reorganisation of a directorate — Creation of a new division — Transfer of responsibilities of a head of division — Action for annulment — Admissibility — Act adversely affecting an official — Equivalence of posts — Covert disciplinary sanction — Misuse of powers — Action for damages — Lis pendens)

Applications:      under Article 270 TFEU, in which CG essentially requests the Tribunal to annul the decision of the European Investment Bank (EIB or ‘the Bank’) altering the conditions of exercise and the nature of her duties, to declare that the EIB committed breaches of its administrative duty incurring liability in respect of her, and to order the EIB to compensate for the material and non-material damage allegedly suffered.

Held:      The actions in Joined Cases F‑95/11 and F‑36/12 are dismissed. Each party is to bear its own costs in Joined Cases F‑95/11 and F‑36/12.

Summary

1.      Actions brought by officials — Staff of the European Investment Bank — Time-limits — Requirement to act within a reasonable period — Point from which time begins to run

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

2.      Officials — Staff of the European Investment Bank — Organisation of departments — Assignment of staff — Administration’s discretion — Limits — Interests of the service — Compliance with the principle of the equivalence of posts — Change of duties not constituting a disciplinary sanction

(Staff Regulations, Art. 7(1) and Annex IX)

3.      Officials — Staff of the European Investment Bank — Rights and obligations — Obligation for the EIB to notify a person of an individual decision — Scope

(Staff Regulations of the European Investment Bank, Art. 42)

1.      There is a significant gap in the rules of the European Investment Bank governing legal remedies in that they do not lay down a time-limit for bringing an action. Consequently, disputes between the EIB and its staff must be brought before the Union Courts within a reasonable period, and the gap described above must be rectified by taking account of the conditions on time-limits for bringing actions laid down by Articles 90 and 91 of the Staff Regulations of Officials of the European Union.

As regards the point at which the limitation period for bringing an action starts to run, if a member of the EIB staff requests the application of the optional conciliation procedure provided for in Article 41 of the Staff Regulations of the European Investment Bank, the time-limit for bringing an action before the Union judicature does not start to run until the conciliation procedure has been concluded, provided, however, that the member of staff has made his request for conciliation within reasonable time of having been notified of the act adversely affecting him and that the duration of the conciliation procedure itself is reasonable.

(see paras 79, 80)

See:

6 March 2001, T‑192/99 Dunnett and Others v EIB, paras 51 to 54 and 56; 27 April 2012, T‑37/10 P De Nicola v EIB, para. 75

2.      The institutions have a wide discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks on condition, however, that the staff are assigned in the interest of the service and in conformity with the principle of the equivalence of posts. That rule also applies to the European Investment Bank.

The principle that the post to which an official is assigned should correspond to his grade calls, in the event of a change in an official’s duties, for a comparison, not between his present and previous duties, but between his present duties and his grade. There is therefore nothing to prevent a decision from entailing the assignment of new duties which, while they differ from those previously performed and are regarded by the official concerned as a reduction in his responsibilities, are nevertheless consistent with a post corresponding to his grade. Thus, an effective diminution of an official’s responsibilities infringes the rule that the post to which an official is assigned should correspond to his grade only if, taken together, his new duties clearly fall short of those corresponding to his grade and post, taking account of their character, their importance and their scope.

Consequently, if it is not established that a decision changing an official’s duties is contrary to the equivalence of posts, there can be no question of a covert disciplinary sanction or misuse of power.

(see paras 90, 92, 105)

See:

16 December 2004, T‑120/01 and T‑300/01 De Nicola v EIB, para. 84; 7 February 2007, Clotuche v Commission, T‑339/03 paras 47 and 91

8 May 2008, F‑119/06 Kerstens v Commission, paras 82 and 103 and the case-law cited therein

3.      Article 42 of the Staff Regulations of the European Investment Bank merely lays down a formal rule, which is that the EIB must communicate individual decisions to the member of staff concerned. However, such an individual decision must first exist.

In that regard, where, prior to the adoption of a decision of the EIB to change the nature of a staff member’s duties and the conditions of exercise of those duties, the staff member is informed verbally by his superiors of the organisational changes to be made within his directorate-general, involving neither the staff member’s reassignment nor any change in the existing hierarchical relationship between the director-general of the directorate and the staff member, the EIB is not required to adopt an individual decision concerning the staff member or to communicate it to him under Article 42.

(see paras 142, 145)