JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

8 March 2011

Case F-59/09

Carlo De Nicola

v

European Investment Bank

(Civil service — Staff of the European Investment Bank — Appraisal — Promotion — Jurisdiction of the Tribunal — Admissibility — Implied decision of rejection — Internal directive — Staff representative — Principle of respect for the rights of the defence)

Application: brought under 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 14 November 2008 of the Appeal Committee of the European Investment Bank, second, annulment of the promotion decisions of 29 April 2008 and of the decision of the same date refusing to promote him to function D, third, annulment of his 2007 assessment report, fourth, a declaration that he has been the victim of psychological harassment, and fifth, an order that the Bank desist from such conduct and compensate him for the harm he considers he has suffered as a result of that harassment.

Held: The applicant’s staff report for 2007 and the decision refusing him promotion are annulled. The remainder of the heads of claim are dismissed. The applicant and the European Investment Bank are ordered to bear their own costs.

Summary

1.      Officials — Staff of the European Investment Bank — Actions — Time-limits

(Art. 236 EC; Staff Regulations, Arts 90 and 91; Staff Regulations of the European Investment Bank, Art. 41)

2.      Procedure — Application initiating proceedings — Formal requirements

(Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(d))

3.      Officials — Staff of the European Investment Bank — Actions — Application by analogy of Articles 90 and 91 of the Staff Regulations

(Art. 236 EC; Staff Regulations, Arts 90 and 91; Staff Regulations of the European Investment Bank, Art. 41)

4.      Officials — Staff of the European Investment Bank — Reports procedure — Staff report

5.      Officials — Staff of the European Investment Bank — Reports procedure — ‘Internal decision’ concerning the reports procedure — Infringement

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

6.      Officials — Staff of the European Investment Bank — Promotion — Administration's discretion — Judicial review — Limits

(Staff Regulations of the European Investment Bank, Arts 22 and 23)

1.      The need to weigh the entitlement to effective protection by the courts, which is one of the general principles of Union law and implies that those subject to the courts’ jurisdiction must have a sufficient period of time available to them to assess the lawfulness of the act adversely affecting them and if necessary prepare their case, against the need for legal certainty which requires that, after a certain time, measures taken by Union bodies become definitive means that disputes between the European Investment Bank and its staff should be brought before the Union judicature within a reasonable period.

What constitutes a reasonable period must be determined taking account, in particular, of the specific nature of staff disputes and the importance, in that context, of whether there is a pre-litigation procedure. Although the Bank’s employees are governed by the Bank’s own particular rules, purely internal disputes between the Bank and its employees are, by their nature, comparable to disputes between the Union institutions and their officials or other staff, which come under Articles 90 and 91 of the Staff Regulations and are also subject to judicial review under Article 236 EC. Guidance should therefore be taken from the conditions on the time-limit for instituting proceedings laid down in Articles 90 and 91 of the Staff Regulations, while also taking account of the particular context of the Bank’s Staff Regulations, Article 41 of which establishes an optional conciliation procedure.

In that respect, the conciliation procedure provided for in Article 41 of the Bank’s Staff Regulations and the special appeal procedure for annual assessments laid down by an administrative notice from the Bank pursue the same aim as the mandatory pre-litigation procedure established by Article 90 of the Staff Regulations. Those procedures too are designed to allow disputes to be settled amicably, by giving the Bank the possibility of reversing the contested measure, and by giving the employee concerned the option of accepting the reasons on which the contested measure is based and, where appropriate, not initiating proceedings. Furthermore, the Bank’s rules do not stipulate how these two procedures are to be coordinated. With regard to assessment reports, it is left to the employee concerned to decide whether to use one procedure, or both, in parallel or successively, subject to compliance with the indicative time‑limit laid down by the relevant administrative notices for applications for referral to the Appeal Committee.

In that context, a period of three months from the date on which the employee concerned receives notification of the act adversely affecting him or, where appropriate, from the negative outcome of the appeal procedure or the failure of the conciliation procedure must as a rule be regarded as reasonable, provided, however, that, first, any appeal procedure was conducted within a reasonable period and, second, that the person concerned submitted any request for conciliation within a reasonable period of receiving notification of the act adversely affecting him. More precisely, the establishment of these two optional procedures, by Article 41 of the Bank’s Staff Regulations and the abovementioned staff notices respectively, which are binding on the Bank, necessarily leads to the conclusion that where an employee successively requests the initiation of the appeal procedure and the conciliation procedure, the time-limit for bringing an action before the Civil Service Tribunal starts to run only from the point when the latter procedure has failed, provided that the employee submitted his request for conciliation within a reasonable period of the completion of the appeal procedure. Any other interpretation would lead to a situation where the Bank’s employee would be obliged to bring an action before the courts at a point when he was still actively seeking an amicable settlement to the case, which would render the optional administrative procedures redundant.

(see paras 134-137)

See:

23 February 2001, T‑7/98, T‑208/98 and T‑109/99 De Nicola v EIB, paras 98, 99, 100, 106 and 107

2.      Claims for annulment which do not identify the act having adverse effects which the applicant seeks to have annulled are inadmissible. Such claims do not satisfy the conditions laid down in Article 35(1)(d) of the Rules of Procedure of the Civil Service Tribunal, which require that the application initiating proceedings must contain the subject-matter of the dispute and the forms of order sought by the applicant. Where an applicant seeks annulment of all measures associated with, resulting from and leading up to a promotion decision, failure to identify the disputed measures clearly and precisely means that the claims cannot be regarded as satisfying the provisions of Article 35(1)(d) of the Rules of Procedure. Consequently, such claims must be dismissed as inadmissible.

(see paras 148, 149)

See:

24 March 1993, T‑72/92 Benzler v Commission, paras 16, 18 and 19

26 June 2008, F‑1/08 Nijs v Court of Auditors, para. 46

3.      In the absence of any provision of the Staff Regulations of the European Investment Bank on the subject, it is necessary, not to apply directly the rules of the Staff Regulations of Officials, which would disregard the specific nature of the rules applicable to members of the Bank’s staff, but to be guided by those rules and to apply them by analogy, noting that purely internal disputes between the Bank and its employees are, by their nature, comparable to disputes between the Union institutions and their officials or other staff. In particular, the rule resulting from Article 91(1) of the Staff Regulations, according to which the Union judicature has no jurisdiction where the action before it is not directed against a measure adopted by the administration to reject the applicant’s claims, should be applied by analogy to actions brought by members of the Bank’s staff. Furthermore, where a staff member submits to the Bank a request that it take a decision relating to him, the provisions of Article 90(1) of the Staff Regulations should be applied by analogy, and the absence of a reply to that request within a reasonable period of four months should be deemed to constitute an implied decision rejecting it, against which an action may be brought before the Civil Service Tribunal.

(see paras 153-155)

See:

De Nicola v EIB, paras 100 and 101

30 November 2009, F‑55/08 De Nicola v EIB, para. 239, on appeal before the General Court of the European Union, T‑37/10 P

4.      Observance of the rights of the defence in all proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person is a fundamental principle of EU law which must be guaranteed even in the absence of any express provision on the subject in the rules governing the procedure in question. That principle, which meets the requirements of sound administration, requires that, before an assessment report is finally adopted, the staff member must have been given the opportunity to make his views known properly to his superior. Where the appraisal interview of a member of the European Investment Bank’s staff with his superiors is not conducted properly, because it is of a purely formal nature and covers only some of the issues that should be discussed at such an interview, thus not allowing the person concerned to submit his observations properly, the principle of respect for the rights of the defence and the rules governing the appraisal procedure are infringed. Admittedly, in order for an infringement of the principle of respect for the rights of the defence to result in the annulment of a measure, it must be established that, had it not been for such an irregularity, the outcome of the procedure might have been different. However, as long as it is possible that, had the staff member been given an opportunity to submit his observations properly and had the appraisal interview been conducted properly, his assessment report would have been different, that infringement must result in the annulment of that measure.

(see paras 176, 177, 181-183)

See:

23 October 1974, 17/74 Transocean Marine Paint v Commission, para. 15; 12 November 1996, C‑294/95 P Ohja v Commission, para. 67

30 September 2004, T‑16/03 Ferrer de Moncada v Commission, para. 40; 14 September 2006, T‑115/04 Laroche v Commission, para. 36; 25 October 2006, T‑173/04 Carius v Commission, para. 69; 6 February 2007, T‑246/04 and T‑71/05 Wunenburger v Commission, para. 149

29 June 2010, F‑28/09 Kipp v Europol, para. 68

5.      Under Article 22 of the Staff Regulations of the European Investment Bank, the procedure to be followed for the annual performance appraisal of each staff member ‘shall be determined by an internal decision’ of the Bank. In the absence of any reference to a document other than a staff notice, it is clear that it was by that notice that the Bank determined the annual appraisal procedure, and that the staff notice and the practical appraisal guide attached to it constitute a body of binding rules from which the Bank cannot depart without committing an unlawful act. Even if that staff notice were not the ‘internal decision’ referred to by the Staff Regulations, it would not thereby be deprived of its binding scope, given that it must be regarded at the very least as an internal directive by which the Bank imposed on itself a rule of conduct, albeit only for guidance, but from which it cannot depart without explaining the reasons which led it to do so, if it is not to infringe the principle of equal treatment.

In allocating a member of its staff a mark without having taken into consideration his work as a full member of a joint committee, the Bank infringes paragraph 7 of the appraisal procedure guide. Staff representation activities must be taken into consideration when a staff member’s appraisal report is drawn up, so that he is not penalised as a result of such activities. That being so, although the reporting officer is only authorised to assess the performance which a staff member who is an elected staff representative gives in the post to which he is assigned, excluding activities in connection with his staff representation duties, which do not come under the reporting officer’s authority, he must however take account, in his appraisal of the staff member’s purely professional performance, of the constraints associated with the performance of his representation duties. More precisely, he must take account of the fact that, because of his representation activities, a staff member has been able to work fewer days than normal in his department during the appraisal period.

(see paras 185, 190, 192, 195)

See:

F‑55/08 De Nicola v EIB, paras 105 and 106 and the case‑law cited therein

6.      It follows from Articles 22 and 23 of the Staff Regulations of the European Investment Bank that it is required to consider the comparative merits of candidates for promotion. In that respect, therefore, employees of the Bank are subject to comparable rules to those of officials of the Union institutions.

The consideration of comparative merits is an expression both of the principle of equal treatment for employees and of the principle of their entitlement to reasonable career prospects. By establishing a promotion procedure based on merit, the Bank’s Staff Regulations enshrine the principle that its employees are entitled to reasonable career prospects, but without that recognition conferring on them a subjective right to promotion, even if they satisfy the conditions to be promoted. Furthermore, as the administration enjoys a broad discretion in considering the comparative merits of candidates for promotion, the courts’ review must be confined to the question whether it remained within reasonable limits and did not use its power in a manifestly incorrect manner. The courts cannot therefore substitute their assessment of candidates’ qualifications and merits for that of the competent authority.

It is apparent from the appraisal procedure guide that, when considering candidates’ comparative merits, the Bank must accord particular importance to their assessment reports for at least the last three years, and to marks awarded on those occasions which were higher than or equal to a particular mark. Since the assessment report is an essential element which the Bank must take into consideration when considering the comparative merits of candidates with a view to adopting decisions on promotion, the annulment of an assessment report leads, as a consequence, to annulment of the decision refusing promotion.

(see paras 199-202)

See:

T‑7/98, T‑208/98 and T‑109/99 De Nicola v EIB, paras 127, 175 and 176 to 178; 19 October 2006, T‑311/04 Buendía Sierra v Commission, paras 340 to 344