JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
10 July 2014 (*)
(Civil service — Staff of the EIB — Appointment — Post as Head of Division — Appointment of a candidate other than the applicant — Irregularities in the selection procedure — Duty of impartiality of the members of the selection panel — Reprehensible behaviour of the Chairperson of the selection panel vis-à-vis the applicant — Conflict of interests — Oral presentation common to all the candidates — Documents supplied for the oral presentation apt to favour one of the candidates — Candidate having assisted in the drafting of the documents supplied — Breach of the principle of equal treatment — Action for annulment — Request for compensation)
In Case F‑115/11,
ACTION brought under Article 270 TFEU,
CG, a member of the staff of the European Investment Bank, residing in Sandweiler (Luxembourg), represented initially by N. Thieltgen, and subsequently by J.-N. Louis and D. de Abreu Caldas, lawyers,
applicant,
v
European Investment Bank (EIB), represented by G. Nuvoli and T. Gilliams, acting as Agents, and by A. Dal Ferro, lawyer,
defendant,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
composed of M. I. Rofes i Pujol (Rapporteur), President, K. Bradley and J. Svenningsen, Judges,
Registrar: X. Lopez Bancalari, Administrator,
having regard to the written procedure and further to the hearing on 6 March 2014,
gives the following
Judgment
1 By application received at the Registry of the Tribunal on 27 October 2011, CG, in essence, requests the Tribunal to annul the decision of the President of the European Investment Bank (‘the EIB’ or ‘the Bank’) to appoint Mr A, instead of the applicant, to the post as head of the ‘Risk Policy and Pricing division’ (‘the “RPP” division’), part of the Credit Risk department of Risk Management Directorate-General (DG) (‘the “Risk Management” DG’), and to order the Bank to make reparation for the material and non-material damage which she claims to have sustained.
Legal context
2 In accordance with Article 308 TFEU, the Statute of the Bank is laid down in a protocol annexed to that Treaty and to the EU Treaty, of which it forms an integral part.
3 Article 7(3)(h) of Protocol No 5 on the Statute of the Bank provides that the Board of Governors is to approve the Rules of Procedure of the Bank. The Rules of Procedure were approved on 4 December 1958 and have since undergone a number of amendments. They provide that the Staff Regulations of the Bank are to be fixed by the Board of Directors.
4 On 20 April 1960 the Board of Directors adopted the Staff Regulations of the Bank. In the version applicable to the dispute, Article 14 of the Staff Regulations of the Bank states that the staff of the Bank is to consist of three categories, according to the Function occupied: the first category consists of management staff and combines two functions, the ‘[s]enior management cadre’ function and ‘[f]unction C’; the second category consists of executive staff and combines three functions, ‘[f]unction D’, ‘[f]unction E’ and ‘[f]unction F’; and the third category is secretarial, clerical and support staff and is made up of four functions.
5 Article 41 of the Staff Regulations of the Bank provides:
‘Disputes of any nature between the Bank and individual members of staff shall be brought before the Court of Justice [of the European Union].
In addition to proceedings being instituted before the Court of Justice, an amicable settlement shall be sought before the Bank's Conciliation Board in respect of disputes other than such as arise from application of [disciplinary measures].
…’
6 On 25 May 2004, the Board of Directors of the Bank approved a document entitled ‘Guidelines on [i]nternal [m]obility and [p]romotions’ (‘the Guidelines’).
7 Article 2 of the Guidelines, entitled ‘Publication of vacancies’, provides:
‘As a general rule, all vacancies will be open to all staff and published …’
8 Article 3 of the Guidelines, entitled ‘Use of panels’, provides:
‘The collective judgement of management through the use of panels intends to contribute to the balance, fairness and transparency in the decision-making process of filling vacancies … the use of panels will be required for the filling of a published vacancy at function C or above …’
9 Annex I to those Guidelines, on the composition and role of selection panels, provides:
‘The panels shall include the broadest representation of management possible, according to the scope and the impact of the post under review. They should comprise five members and include both women and men. They must include at least one representative of [the Human Resources department] and one representative of another [d]irectorate different from the one filling the vacancy. Panel members must have at least the same functional level as the one of the vacant post to be filled.
The [d]irector [g]eneral responsible for the post and [the] Human Resources [department] shall decide jointly the composition of the panel.’
10 The Human Resources department of the Bank drew up a document entitled ‘Best [p]ractice in [s]election [p]anels’ (‘the Best Practices’). In the version applicable to the dispute, Article 4.1 provides:
‘Panels are composed of five voting members and one observer representing [the Joint Committee on Equal Opportunities for Men and Women…]. The [c]hairperson of the panel usually represents the selecting directorate. The five voting members have the same voting/scoring rights. The observer [from the Joint Committee on Equal Opportunities for Men and Women] does not have the right to score. The five voting members should be at least of the same functional level as the vacant post. Panel membership is agreed between [the Human Rights department] and the recruitment directorate, and must include at least one female voting member.’
11 Article 5.1 of the Best Practices reads as follows:
‘The [c]hairperson of the panel has the same voting rights as other voting members but acts as a “primus inter pares” among them, this means that, in the absence of consensus about the final recommendation, the [c]hairperson has a casting vote in the final recommendation, which should be explained (if exercised) in the minutes of the panel meetings.’
12 According to Article 10.3 of the Best Practices:
‘… In the panel debriefings and deliberations, … [t]he [c]hairperson speaks last in order to allow other panel members to express their views without being influenced by the hiring [d]irectorate …’
13 In the words of Article 17 of the Best Practices:
‘The appointment decision is made by the President [of the Bank] in consultation with his colleagues of the Management Committee, further to a proposal from the Director of [the Human Resources department]. For that purpose, the Director of [the Human Resources department], on the basis of the minutes of the Panel, addresses an appointment recommendation to the [Committee constituted by the Management Committee and the Secretary General] adding, as deemed appropriate, any supplementary … considerations [of the Human Resources department].’
Facts giving rise to the dispute
14 The applicant was engaged by the Bank on 16 July 1998 in function E in the executive staff category.
15 On 1 April 2001 the applicant was promoted to function D, step 1 in the executive staff category.
16 On 1 January 2008 the applicant was appointed Head of the ‘Coordination’ Division within the ‘Risk Management’ DG and was promoted to function C in the category of management staff. At the time of bringing the action, the applicant was still in that post.
17 When the applicant took up the post as Head of the ‘Coordination’ Division, the ‘Risk Management’ DG was run by a Director General who was the immediate superior of Mr X, the Director of the Credit Risk Department, Mr Y, the Director of the Financial Risk Department, and the applicant.
18 In the applicant’s staff report for 2008, the Director General of the ‘Risk Management’ DG, acting as assessor, considered that her performance had met all expectations and the applicant was awarded a bonus.
19 In the applicant’s staff report for the first six months of 2009, the assessor concluded that the applicant’s performance had been very good. The applicant was awarded a salary increase of three mini-steps and bonuses.
20 By note of 16 February 2011, the Director General of the ‘Risk Management’ DG submitted a proposal for the reorganisation of that directorate general to the Management Committee of the Bank.
21 On 18 February 2011, the applicant requested the initiation of a ‘Dignity at work’ investigation procedure against Mr X and Mr Y. In her request, the applicant claimed that, since June 2010 in Mr X’s case and September 2008 in Mr Y’s case, those individuals had bullied and harassed her, by, inter alia, ‘sidelining’ her by diluting and/or diminishing her role and her responsibilities.
22 On 22 February 2011 the Management Committee of the Bank approved the proposal for the reorganisation of the ‘Risk Management’ DG (‘the reorganisation of the “Risk Management” DG’); this new organisation differed from the proposal set out in the note of 16 February 2011 of the Director General of the ‘Risk Management’ DG.
23 By letter from the Director of the Human Resources Department of 28 February 2011, the applicant was informed that the investigation procedure had been initiated and was requested to set out her complaint in a memorandum.
24 By memorandum of 14 March 2011, the applicant described the two alleged harassers’ harassing and bullying behaviour towards her.
25 By note of 30 March 2011, the President of the Bank informed the staff that the Management Committee had approved the reorganisation of the ‘Risk Management’ DG with effect from 1 April 2011 (‘the note to staff of 30 March 2011’). It is apparent from that note that, from that date, the general risk policy, including the Basel Agreement, capital adequacy, stress testing and pricing would come under a new division, the RPP Division, to be part of the Credit Risk Department of the ‘Risk Management’ DG. The note to staff of 30 March 2011 also stated that, in connection with the reorganisation of the ‘Risk Management’ DG, Mr Y, Director of the Financial Risk Department, would become Director of the Credit Risk Department and that the vacancy notice for the new post of Head of the RPP Division (‘the post at issue’) would be advertised according to the Bank’s normal procedures.
26 On 20 May 2011 the vacancy notice for the post at issue was advertised. The deadline for submitting applications was 7 June 2011.
27 By e-mail of 3 June 2011 to the Director of the Human Resources Department, the applicant requested that the recruitment procedure to fill the post at issue be suspended, in particular because Mr Y, who was part of the selection panel, was the subject of an investigation procedure which she had initiated. That e-mail went unanswered.
28 On 7 June 2011 the applicant submitted her application for the post at issue.
29 By e-mail of 10 June 2011, the applicant was invited to an interview with the selection panel, to be held on 17 June 2011. The invitation to the interview with the selection panel stated that the panel would be composed of five persons, including Mr Y, who would chair the panel. It was also stated that during the interview the applicant would have to make a 10-minute presentation on a topic which was communicated to her in the e-mail and for which she could make use of the documents annexed to the e-mail.
30 By e-mail of 14 June 2011 to the Director of the Human Resources Department, the applicant requested that Mr Y be replaced.
31 By e-mail of the same date, 14 June 2011, the Director of the Human Resources Department replied to the applicant that the composition of the selection panel would be maintained. He informed her that it would be ‘inconceivable’ that Mr Y, the Director of the Credit Risk Department, should not chair all the interviews carried out by the selection panel. He emphasised that a member of staff of the Human Resources Department was a member of the selection panel and that one of that staff member’s main responsibilities was to ensure that all candidates were treated fairly and objectively.
32 On 16 June 2011, at around midday, the applicant sent her covering letter and her curriculum vitae to the secretariat of the selection panel by e-mail.
33 By e-mail sent during the evening of the same date, 16 June 2011, the applicant informed the secretariat of the selection panel that for medical reasons she would be unable to attend the interview set for the following day and that she would be on sick leave for three weeks.
34 On 17 June 2011, all the candidates, apart from the applicant, were interviewed by the selection panel.
35 By e-mail of 29 June 2011, also sent by post, the representative of the Human Resources Department on the selection panel requested the applicant to provide a date, between 8 and 14 July 2011, for her interview with the panel. In the absence of a reply from the applicant, the abovementioned member of the panel asked her by e-mail of 7 July 2011, and by registered letter, to confirm whether she was available for interview on 11, 13 or 14 July 2011.
36 By e-mail of 11 July 2011, the applicant stated that she would be available on 13 and 14 July 2011, at the panel’s convenience.
37 On 11 July 2011 the Investigation Panel dealing with the complaint for harassment lodged by the applicant issued its opinion (‘the Investigation Panel’s opinion’). In the case of Mr X, the Investigation Panel concluded that it had been unable to ‘find an abusive and intentional attitude that might be characterised as harassment on [his] part’ and, in Mr Y’s case, after finding that certain behaviour of which the applicant complained had been proved, the Investigation Panel left open the question whether that behaviour constituted psychological harassment. In its opinion, the Investigation Panel also made a number of recommendations for the attention of the Bank.
38 On 13 July 2011, the applicant was interviewed by the selection panel, which was chaired by Mr Y.
39 In its report of 18 July 2011, drawn up following the selection procedure, the panel concluded unanimously that Mr A was the best candidate for the post at issue and recommended that he be appointed.
40 By e-mail of 27 July 2011, the applicant was informed that Mr A had been selected by the panel.
41 By note of 28 July 2011, the President of the Bank informed the staff that he had decided, after consulting his colleagues on the Management Committee, to appoint Mr A to the post at issue (‘the decision of 28 July 2011’).
42 By e-mail of 29 July 2011, the applicant asked the Director of the Human Resources Department for information in writing on the reasons why her candidacy had not been accepted and also on the reasons that justified the choice of another candidate.
43 By letter of 5 September 2011, the applicant sent the President of the Bank a complaint, seeking annulment of the decision of 28 July 2011, and also a request for compensation for the damage which she claimed to have been caused by the illegality of that decision and by the fact that she had been required to appear before a selection panel one of the members of which was one of the alleged harassers in respect of whom an investigation procedure was being carried out.
44 On 8 September 2011, the applicant was received by a member of the staff of the Human Resources Department, who gave her access to the part of the selection panel’s report relating to her.
45 By letter of 19 September 2011, the President of the Bank acknowledged receipt of the complaint of 5 September 2011. He informed the applicant that as the relevant person in the Human Resources Department was absent until 23 September 2011, the complaint and the request for compensation would be dealt with when that member of staff returned from leave and that he would inform the applicant of his decision after that date.
Forms of order sought and procedure
46 The applicant claims that the Tribunal should:
– annul the decision of 28 July 2011;
– order the Bank to take the necessary measures in order to put in place a lawful procedure for filling the post at issue;
– find the Bank liable to the applicant with respect to the illegality of the decision to appoint Mr A to the post at issue;
– order the Bank to pay compensation by way of reparation for the material and non-material damage suffered by the applicant, together with default interest:
– non-material damage: EUR 50 000;
– material damage owing to loss of remuneration: EUR 436 100;
– by way of a measure of inquiry, order an expert report to establish the extent of the material and non-material damage resulting from the illegality of the decision of 28 July 2011, the subject-matter of which is more fully explained in the evidence offered in support annexed to the application;
– order the Bank to pay the costs of the proceedings.
47 The Bank contends that the Court should:
– dismiss the action as inadmissible and/or unfounded;
– order the applicant to pay the costs.
48 In her reply, submitted on 6 June 2012, the applicant asked the Tribunal to order, by way of a measure of inquiry, the hearing of a witness as described in evidence offered in support annexed to the reply and, in the alternative, to accept, as a new evidence in support, the testimony of that witness produced in that annex. That request was made in support of the claim for annulment in the action. When questioned by the Tribunal about that request for a measure of inquiry in the context of the measures of organisation of procedure referred to in the following paragraph, the applicant stated that she had been unable to make that request in her application because she had not become aware until in February 2012 of the facts on which that witness could comment.
49 By letters from the Registry of 29 January 2014, the parties were requested to reply to a number of measures of organisation of procedure. They duly complied with that request.
50 At the hearing, the applicant withdrew the second and fifth heads of claim in her application.
Law
1. First head of claim, seeking annulment of the decision of 28 July 2011
51 In support of her application for annulment, the applicant puts forward three pleas in law. The first alleges a number of irregularities vitiating the recruitment procedure. The second alleges a manifest error of assessment. The third alleges a misuse of powers.
52 At the hearing, the applicant stated that she was withdrawing her second and third pleas.
53 It must therefore be considered that the applicant is relying on a single plea, alleging the existence of irregularities vitiating the recruitment procedure. This plea is divided into two parts: the first alleges that the selection panel lacked impartiality and the second that there was a breach of the principle of equal treatment in the choice of questions put to the candidates, which operated to the benefit of Mr A.
First part of the plea, alleging lack of impartiality by the selection panel
54 In the first part of her single plea seeking annulment, the applicant puts forward two complaints: she complains, in the first place, of the lack of impartiality of the Chairperson of the selection panel, Mr Y, and, in the second place, of the lack of impartiality of the other members of the panel.
First complaint, alleging that Mr Y lacked impartiality as a member and Chairperson of the selection panel
– Arguments of the parties
55 The applicant claims that the decision of 28 July 2011 was adopted following a recommendation from the Director of the Human Resources department based on a recruitment procedure that was vitiated by irregularities and that it should therefore be annulled. She observes that on 28 February 2011 an investigation procedure concerning respect for the dignity of the person at work was initiated at her request because of bullying and harassment of which she claimed to have been a victim since September 2008, notably on the part of Mr Y. On 11 July 2011 the Investigation Panel stated in its opinion that Mr Y was perceived as an ‘ambitious man’ and a ‘steamroller who proceeds without worrying too much about the collateral damage which he may cause’ and that he excluded the applicant from her post by appropriating all the strategic aspects which the Coordination Division covers.
56 The applicant asserts that, owing to the investigation procedure for harassment which had been initiated at her request and which concerned Mr Y, he had a conflict of interests in relation to the applicant during the selection procedure, which prevented him from giving an objective and impartial opinion on her candidature. The applicant further asserts that, in addition, Mr Y chaired the selection panel, which enabled him to influence, directly or indirectly, the other members of the panel as to the choice of the person appointed to the post. Owing to Mr Y’s presence on the selection panel, that panel’s opinion could not provide the requisite guarantees of impartiality and objectivity.
57 The applicant also complains that, in spite of the opinion of the Investigation Panel, in which it had found that Mr Y had engaged in some of the behaviour about which she had complained, and in spite of her express request that Mr Y should not form part of the selection panel, the Bank did not alter the composition of the panel and she was required to appear before a selection panel on which one of her alleged harassers was sitting.
58 The Bank asserts, in response, that in so far as Mr Y was the Director of the hiring department, his appointment as a member of the selection panel was normal practice and was consistent with good practice. As regards the opinion of the Investigation Panel, the Bank observes that the latter concluded that no harassment was attributable to the alleged harassers. The Bank has also adopted measures to guarantee the impartiality of the panels, such as the presence within the panel of a representative of the Human Resources department and the presence as an observer of a representative of the Joint Committee on Equal Opportunities for Men and Women (‘COPEC’). Last, the selection panel’s report shows that Mr Y had not adopted a discriminatory position vis-à-vis the applicant and that his position as Chairperson of the panel had played no part in the decision of 28 July 2001. It is clear from the panel’s report that the applicant had been placed last out of the five candidates, that the panel’s decision to recommend Mr A for the post at issue had been taken unanimously by the members of the panel and that the scores awarded by the members of the panel to each of the candidates were homogenous, with no member differing significantly from the line taken by the other members.
– Findings of the Tribunal
59 It is settled case-law that the wide discretion which a selection board or a selection panel enjoys in determining the procedures and the detailed content of the oral tests which candidates are required to undergo must be offset by a scrupulous observation of the rules governing the organisation of those tests (judgments in Girardot v Commission, T‑92/01, EU:T:2002:220, paragraph 24, and Christensen v Commission, T‑336/02, EU:T:2005:115, paragraph 38).
60 It is also settled case-law that a selection board in a competition is required to ensure that its assessments of all the candidates examined in the oral tests are made in conditions of equality and objectivity (judgment in Pantoulis v Commission, T‑290/03, EU:T:2005:316, paragraph 90 and the case-law cited) Although the recruitment procedure at issue did not take the form of a competition, that case-law may be applied in the present case, since the purpose of a selection panel, like that of a selection board, is to choose the best candidates from among those who applied following the publication of a vacancy notice and it has significant discretion when organising the selection tests.
61 Consequently, it was for the Bank, in application of the principles of sound administration and equal treatment, to ensure that the selection procedure was properly organised and to guarantee to all the candidates in that procedure that the interviews with the selection panel would be conducted as smoothly and properly as possible. That required that all members of the selection panel appointed by the Bank had the necessary independence to preclude any doubt as to their objectivity.
62 The Tribunal must therefore ascertain whether the selection panel was formed and functioned properly, complying in particular with its duty to act impartially, compliance with such duty being one of the rules which govern the proceedings of selection boards in competitions and the proceedings of selection panels and which are amenable to review by the Courts of the European Union (see, as regards the functioning of a competition selection board, order in Meierhofer v Commission, F‑74/07 RENV, EU:F:2011:63, paragraph 62).
63 The Tribunal must therefore examine whether, in the present case, Mr Y had a conflict of interests in relation to the applicant in so far as he was the subject of an investigation procedure for harassment which she had initiated. If so, Mr Y’s breach of his duty to refrain from evaluating the applicant would constitute a breach of his duty of impartiality and, consequently, of the duty of impartiality of the selection panel as a whole.
64 In that regard, it should be borne in mind that a conflict of interests refers to a situation in which an official or other servant is required, in the performance of his duties, to express an opinion on a matter in the treatment or outcome of which he has a personal interest of such a kind as to compromise his independence (see, by way of example, judgment in Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 223).
65 The mere fact that a member of a selection board in a competition or a panel in a selection procedure is the subject of a complaint for harassment lodged by a candidate in the competition or the selection procedure does not as such mean that the member concerned is required to recuse himself from the selection board or selection panel (see, to that effect, judgment in BY v EASA, F‑81/11, EU:F:2013:82, paragraph 72). On the other hand, if it is apparent, on the basis of objective, relevant and consistent evidence, that that member of the selection board has a conflict of interests in the sense that he has, directly or indirectly, a personal interest in acting to the advantage or disadvantage of one of the candidates, the obligation of impartiality, as enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, requires that he be unable to express his opinion on the merits of that candidate, in particular where it is supposed that the person eventually selected will subsequently work under his authority.
66 In the present case, it is common ground that the newly-created RPP division was part of the Risk Credit department and that Mr Y, as the Director of that department, would become the immediate superior of the candidate appointed to the post at issue. The Tribunal must therefore examine whether the applicant has adduced objective, relevant and consistent evidence that Mr Y, as a member and Chairperson of the selection panel, had a personal interest of such a kind as to compromise his independence in the evaluation of her candidature for the post at issue.
67 In that regard, first, it is common ground that on 28 February 2011 an investigation procedure concerning observance of the dignity of the person at work was initiated at the applicant’s request because of bullying and harassment by, in particular, Mr Y. Accordingly, the Tribunal observes that the Bank considered that such an investigation procedure was necessary in the light of the circumstances and that the applicant’s request could not be rejected outright.
68 Nor is it disputed that on 11 July 2011 the Investigation Panel dealing with the complaint lodged by the applicant issued its opinion, which contained no formal finding as to whether Mr Y’s alleged behaviour constituted harassment, although the Investigation Panel found, in particular, that certain behaviour of which the applicant complained had been proved. In answer to a question put by the Tribunal at the hearing, the Bank stated that normally the opinion of an Investigation Panel concerning harassment is sent to the President of the Bank so that he can adopt a decision, but is not sent directly to the alleged harassers or to the complainant. The Bank also stated that Mr Y had no doubt been formally notified of the decision to take no action on the applicant’s complaint which the President of the Bank had adopted in the light of the opinion of the investigation panel, but not of the opinion itself.
69 Second, it is also common ground that the vacancy notice for the post at issue was published on 20 May 2011 and that the applicant’s interview with the selection panel took place on 13 July 2011, that is, two days after the Investigation Panel had delivered its opinion, and then that, on 18 July 2011, the selection panel drew up its report selecting Mr A for the post.
70 It is thus apparent from the preceding paragraphs that the selection procedure was conducted in parallel with the investigation procedure.
71 Next, it is apparent from the Investigation Panel’s opinion that the applicant complained, in particular, of having been ‘excluded’ by Mr Y through the dilution or reduction of her role and her responsibilities.
72 In that regard, the Investigation Panel stated that ‘[o]ver time, [the applicant’s] position changed in the eyes of [Mr Y]: from a colleague appraised and marked very favourably, she became an obstacle to the course he had set for himself. As she was, in addition, a competitor for the place of [d]irector [g]eneral of the [“Risk Management” DG], [Mr Y] had no hesitation in filling the power vacuum left by [the applicant] as a result of her sickness, which she was attempting to fill, in however small a way, from her sickbed’ and that, accordingly, Mr Y ‘gradually excluded [the applicant] from her post by appropriating all the strategic aspects which the Coordination Division covers. At present it is thus common ground … that the organisational chart of the [“Risk Management” DG] is such that [Mr Y] concentrates in his hands all the key strategic functions, giving him a high profile in the eyes of the senior management of the Bank and that [the applicant] is confined to administrative duties. What [the applicant] predicted has therefore happened’.
73 In its opinion, the Investigation Panel also stated that ‘[the applicant’s] previously excellent relationship with [Mr Y] deteriorated, as [Mr Y] filled in the gaps left by [the applicant] and in doing so eroded the most important and intellectually demanding functions of the applicant, who did not accept that erosion of her powers. Eventually, any communication and any relationship of trust between them [had become] impossible’.
74 Likewise, the Investigation Panel observes that Mr Y ‘is … seen as an ambitious man with a vision of his professional future and is described by some as a steamroller who proceeds without too much concern for the collateral damage which he may cause’ and that ‘[the applicant] was there, she stood in the way of his ambitions and her absence … on grounds of sickness interfered in part with the proper implementation of [the] work, she had to be excluded’.
75 It is thus apparent from the opinion of the Investigation Panel that Mr Y had in fact engaged in some of the behaviour of which the applicant complained and that, at the time when the applicant was interviewed by the selection panel, on 13 July 2011, the professional relationship between the applicant and Mr Y had seriously deteriorated.
76 Since Mr Y would have become the applicant’s immediate superior if she had been selected and appointed to the post at issue, the Tribunal considers that, in the light of the considerations and facts set out at paragraphs 67 to 75 of the present judgment, and in particular of the facts which the Investigation Panel, in its opinion, considered to have been established, the applicant has adduced, in the present case, objective, relevant and consistent evidence in support of her argument that Mr Y’s appointment as a member of the selection panel gave rise to a conflict of interests of such a kind as to cast doubt on his ability to appraise the applicant’s candidacy with the necessary objectivity.
77 It is common ground that Mr Y participated in the interview and appraisal of the applicant when he ought to have refrained from doing so as he had a conflict of interests in relation to her.
78 In addition, it should be borne in mind that Articles 5.1 and 10.3 of the Best Practices provide that the Chairperson of the selection panel is to have a casting vote in the absence of consensus about the final recommendation and that, in the deliberations, the Chairperson is to speak last in order not to influence the other members of the selection panel. Consequently, it follows from those provisions that Mr Y, as the Chairperson of the selection panel, was in a position to play a dominant role in the proceedings of the panel and to influence the other members of the selection panel.
79 In the light of the foregoing considerations, and without prejudice to the substance of the discussions between the members of the selection panel and the positions adopted by the various members of the panel, including Mr Y, it must be concluded that Mr Y, by having sat on the selection panel, breached his duty of impartiality. Consequently, in so far as each of the members of the selection panel must have the necessary independence so that the objectivity of the selection panel as a whole cannot be compromised, it must be considered that the duty of impartiality of the selection panel as a whole has been breached.
80 That conclusion is not undermined by the Bank’s arguments.
81 First of all, as regards the argument that it would have been ‘inconceivable’ that the Director of the recruiting department, in this instance Mr Y, should not act as Chairperson in all the interviews conducted by the selection panel, it is sufficient to point out that Article 4.1 of the Best Practices provides that the Chairperson of the panel ‘usually represents the … directorate’ that is filling the post and that Annex I to the Instructions does not require that the panel include the Director of the recruiting department. Accordingly, the Bank’s internal rules refer not to the recruiting department but to the directorate general that is recruiting, and it is permissible for the Director of the department that is filling the post not to be a member of the selection panel.
82 Furthermore, it should be borne in mind (see paragraphs 30 and 31 above) that the applicant had requested, by e-mail to the Director of the Human Resources Department of 14 June 2011, that Mr Y be replaced, her request being refused by that Director on the same date. However, since there was a conflict of interests, the Bank ought to have prevented Mr Y from being a member, and a fortiori from being the Chairperson, of the selection panel or, at least, ought to have ensured that he would refrain from any involvement in interviewing and appraising the applicant, which it failed to do.
83 Next, as regards the argument that the opinion of the Investigation Panel of 11 July 2011 had concluded that there had been no harassment on the part of Mr Y — which is why there was no conflict of interests on Mr Y’s part –, the Tribunal recalls that the selection procedure was conducted in parallel with the investigation procedure (see paragraph 70 of the present judgment), and that when, on 14 June 2011, the Director of the Human Resources Department refused to replace Mr Y on the selection panel, the Investigation Panel had not yet delivered its opinion. As the applicant’s interview with the selection panel had initially been scheduled for 17 June 2011, the Bank therefore saw no reason why Mr Y, who on that date was the subject of an investigation procedure for harassment, should not be a member of the selection panel. The argument which the Bank bases on the investigation panel’s finding that there had been no harassment by Mr Y is therefore irrelevant. In any event, irrespective of the date on which Mr Y learnt that the Investigation Panel had issued its opinion, that opinion could have no effect on the actual existence of the conflict of interests on Mr Y’s part during the selection procedure. The fact that the professional relationship between Mr Y and the applicant had seriously deteriorated before the beginning of the selection procedure, as is apparent from the Investigation Panel’s opinion, is sufficient, in the present case, to support the conclusion that there was a conflict of interests on Mr Y’s part.
84 Likewise, the Tribunal observes that the existence of a conflict of interests on the part of a member of the selection panel vis-à-vis a candidate cannot be offset either by the presence of a representative of the Human Resources Department within the panel or by the presence of an observer from COPEC.
85 Last, as regards the Bank’s argument that it is apparent from the selection panel’s report that Mr Y did not adopt a discriminatory position towards the applicant and that Mr A was selected unanimously, the Tribunal observes that, as the Bank claims, the marks allocated by each member of the panel to each of the candidates are relatively homogeneous. However, that finding does not preclude the existence of a conflict of interests on Mr Y’s part or the possibility that Mr Y, as Chairperson of the panel, may have influenced the evaluation of the candidates by the other members of the selection panel.
86 In the light of the foregoing considerations, it must be concluded that the selection procedure was unlawful in that the Chairperson of the selection panel and, consequently, the panel as a whole breached its duty of impartiality. The first complaint in the first part of the plea must therefore be declared well founded.
Second complaint, alleging lack of impartiality by the other members of the selection panel
– Arguments of the parties
87 The applicant claims that the members of the panel other than Mr Y may have proved to be partial, since most of them had approved the reorganisation of the ‘Risk Management’ DG, and in particular the creation of the RPP division, the head of which would be given virtually all the roles and responsibilities that used to form part of her duties as Head of the Coordination Division.
88 The Bank does not comment on this second complaint.
– Findings of the Tribunal
89 It is sufficient to observe that the applicant merely asserts that the other members of the selection panel may have breached their duty of impartiality, but does not claim that they did so in the present case. In doing so, she indulges in mere speculation without adducing any evidence capable of proving that assertion. In such circumstances, the second complaint in the first part of the plea must be rejected as unfounded.
90 In the light of the foregoing considerations, it must be concluded that the first part of the single plea in the action, alleging the existence of irregularities vitiating the selection procedure, is well founded in part.
Second part of the plea, alleging breach of the principle of equal treatment
Arguments of the parties
91 The applicant states that the 10-minute oral presentation before the selection panel which all candidates were required to give consisted in a brief presentation of a technical subject on the basis of two internal memoranda of the Bank which had been distributed to all candidates before their interview with the selection panel. However, since Mr A had drafted or assisted in the drafting of those two internal memoranda, he was placed at an unfair advantage by comparison with the other candidates. In manifestly favouring one of the candidates for the post at issue by choosing to base the oral presentation test on the two internal memoranda referred to above, the selection panel breached the principle of equal treatment.
92 The Bank acknowledges that Mr A was involved in preparing the two internal memoranda in question, but maintains that no candidate was placed at an unfair disadvantage, as an understanding of the memoranda did not require any particular knowledge and they had been distributed to all the candidates before the interview. The oral presentation was only one of the various tests in the selection procedure and it was not intended to evaluate candidates’ technical abilities but rather their powers of communication and persuasion.
Findings of the Tribunal
93 It should be borne in mind that it is settled case-law that the principle of non-discrimination, or equal treatment, requires that comparable situations are not treated differently, unless such different treatment is objectively justified. It thus follows that there is a breach of the principle of non-discrimination where two categories of persons, whose factual and legal situations are not essentially different, are treated differently or where different situations are treated in the same way. In order to be compatible with the general principle of non-discrimination, a difference in treatment must be justified on the basis of an objective and reasonable criterion and must be proportionate to the aim pursued by that difference in treatment (see, for example, judgments in Giannini, EU:T:2008:68, paragraph 131 and the case-law cited, and Brown v Commission, F‑37/05, EU:F:2009:121, paragraph 64).
94 The principle of equal treatment is a fundamental principle of EU law which applies, in particular, in the field of competitions and which the selection board must ensure is strictly observed in the competition. Although the selection board has a wide discretion as to the procedures and the detailed content of the tests, it is none the less for the Courts of the European Union to exercise their power of review in so far as is necessary to ensure equal treatment of the candidates and the objectivity of the choice between them made by the selection board (judgments in Giannini, EU:T:2008:68, paragraph 132, and De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 43).
95 Last, it should be observed that any examination entails, generally and inherently, a risk of unequal treatment, in the light of the necessarily limited number of questions that can reasonably be put during an examination in relation to a given subject. It has therefore been acknowledged that a breach of the principle of equal treatment can be found only where the selection board, in its choice of tests, did not limit the risk of inequality of opportunities to that generally inherent in every examination (judgments in Giannini, EU:T:2008:68, paragraph 133, and De Mendoza Asensi v Commission, EU:F:2014:14, paragraph 45).
96 In the present case, it is apparent from the file that the candidates were all required to answer a similar question that each member of the selection panel put to them. In addition, the selection panel had put in place the same test for all candidates, consisting in giving an oral presentation on the basis of two internal memoranda of the Bank, in order to evaluate their ability to present a complex and technical topic to a non-specialist audience and to convince that audience of their proposal. The two abovementioned memoranda were therefore to serve to test candidates’ abilities of communication, presentation, explanation and persuasion and not their technical knowledge.
97 It is also apparent from the file that Mr A assisted in the drafting of the two internal memoranda given to candidates for the purposes of the oral presentation before the selection panel. The Tribunal considers that the mere fact of being the author or co-author of such memoranda confers a genuine familiarity with their content and potentially makes any presentation based on them easier.
98 Admittedly, as the Bank claims, it has been held that the familiarity with a document that certain candidates in a competition have been able to acquire through their work does not mean that they were placed at an undue advantage by the selection board’s decision to take that document as a basis for the questions in a test, in so far as, first, the advantage conferred on certain candidates by the choice of the document is part of the risk generally inherent in every examination and as, second, the text of that document had been available before the test (judgment in Giannini, EU:T:2008:68, paragraph 164).
99 In that regard, the Tribunal observes that in Giannini (EU:T:2008:68) the applicant, a candidate who had been excluded from a competition, complained that other candidates had worked before the competition on preparatory documents for the document that had served as a basis for the written test. It follows from Giannini (EU:T:2008:68) that the preparatory documents and the documents provided to the candidates could not be presumed to be the same and that the candidates who had worked on the preparatory documents could not rely on any knowledge acquired through their work on the preparatory documents. The General Court concluded that the fact that candidates who had worked on the preparatory documents might have found the written test relatively easy owing to their familiarity with the preparatory documents was of very limited relevance and held that the candidates concerned had not been placed at an undue advantage.
100 In the present case, on the other hand, it must be stated that a single candidate, Mr A, was more familiar than his competitors with the documents made available in order to prepare their presentations. What is more, and unlike in Giannini (EU:T:2008:68), Mr A, as the author or co-author, had worked directly on those two internal memoranda of the Bank, and not on documents preparatory to those two internal memoranda, the content of which, as preparatory documents, would not necessarily have been the same as the content of the two internal memoranda in question. Consequently, in so far as the candidates’ oral talk was designed, in particular, to evaluate their ability to convince a non-specialised public, the advantage which Mr A. enjoyed by comparison with the other candidates in the oral talk test owing to his participation in the drafting of all or part of the two abovementioned memoranda is indeed genuine and relevant.
101 That appraisal cannot be undermined by the fact that the two internal memoranda in question had been made available to all candidates before they were interviewed by the selection panel or by the Bank’s argument, put forward at the hearing, that the two memoranda were widely known to all candidates well before the selection procedure began. At the hearing, the Bank acknowledged that the selection panel could have chosen documents other than the two abovementioned memoranda for the oral presentation test. It is therefore established that Mr A was placed at an unfair advantage by comparison with the other candidates.
102 Consequently, it must be concluded that, in having chosen to base the oral presentation test common to all candidates on the two internal memoranda of the Bank referred to above, the Bank breached the principle of equal treatment.
103 The second part of the single plea is therefore well founded.
104 In the light of the foregoing considerations, and without there being any need to examine the request for measures of inquiry, the first head of claim, seeking annulment of the decision of 28 July 2011, must be upheld.
2. Second and third heads of claim, seeking compensation
Admissibility
Arguments of the parties
105 The Bank claims that the Courts of the European Union have no jurisdiction if the action before them is not directed against an act of the administration rejecting the applicant’s claims. In the present case, by his letter of 19 September 2011, the President of the Bank informed the applicant that her request for compensation of 5 September 2011 would be dealt with when the relevant person in the Human Resources department returned from leave on 23 September 2011. The applicant brought her request for compensation before the Tribunal on 27 October 2011, without having received an express response from the Bank to her request of 5 September 2011 and before expiry of the three-month period after which an implied decision rejecting that request would be deemed to have been taken. The claim for compensation should therefore be rejected as inadmissible.
106 The Bank further submits that the claim for compensation duplicates, at least in part, the request for compensation set out in the action brought before the Tribunal on 28 September 2011 and registered as Case F‑95/11, as regards the damage which the applicant claims to have suffered as a result of the publication of the post at issue. The claim for compensation is therefore also inadmissible in any event on the ground of lis pendens, at least in part.
107 In answer to the request put by the Tribunal, in the context of the measures of organisation of procedure, to clarify its position relating to the admissibility of the claim for compensation in the light of the judgments in De Nicola v EIB, T‑37/10 P, EU:T:2012:205 and De Nicola v EIB, T‑264/11 P, EU:T:2013:461, the Bank asserts that although, according to those judgments, a claim for compensation might be brought before the Courts of the European Union without a request for compensation having first been submitted to the administration, where a person decides first of all to ask the administration to adopt a position on a certain matter, even though that procedure is not compulsory, he must allow the administration to which he has decided to put his request to reach a decision within a reasonable time. That concept of a ‘reasonable period’, to which attention was drawn in the judgment in Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraphs 26 to 30, applies both to the period within which a person may address a request to the administration and to the period within which the administration may adopt a position on that request.
108 The applicant maintains that the claim for compensation in her action must be considered admissible.
Findings of the Tribunal
109 In the first place, as regards the admissibility of the claims for compensation as a whole, the Tribunal points out that, according to Article 41 of the Staff Regulations of the Bank, in essence, any dispute between the Bank and members of its staff may form the subject-matter of an action before the Courts of the European Union, although such an action may be preceded by an amicable procedure before the Bank’s Conciliation Board, independently of the action brought before the Courts (judgment in De Nicola v EIB, EU:T:2012:205, paragraph 74).
110 It has already been held that it is clear from Article 41 of the Staff Regulations of the Bank, which provides for a conciliation procedure taking place independently of the action brought before the Courts, that the admissibility of that judicial action is not subject to exhaustion of the administrative procedure, which is optional for the employees of the Bank (see, to that effect, judgment in De Nicola v EIB, T‑7/98, T‑208/98 and T‑109/99, EU:T:2001:69, paragraph 96), whereas officials and other servants must await the end of the administrative procedure provided for in the Staff Regulations of Officials of the European Union (‘the EU Staff Regulations’).
111 In addition, in the judgment in De Nicola v EIB (EU:T:2013:461), paragraphs 69 to 73, an appeal against the judgment in De Nicola v EIB, F‑59/09, EU:F:2011:19, in which, by applying by analogy Article 91(1) of the EU Staff Regulations, the Tribunal had considered that it had no jurisdiction to determine an action for compensation before it on the ground that the action was not directed against an act adopted by the Bank and adversely affecting the person concerned, as no request for compensation had first been submitted to the Bank, the General Court held that, in the absence of any relevant internal rules within the Bank, the Tribunal was not entitled to take the view that its jurisdiction or the admissibility of an action for compensation was dependent on the ‘absence of a request for compensation addressed to the Bank and of any act adversely affecting the person concerned to which it would be possible to attach the claim for compensation’. The General Court considered that the only relevant rule in that context was the rule laid down in Article 41 of the Staff Regulations of the Bank, the nature and ratio legis of which are quite different from those of the EU Staff Regulations, including Articles 90 and 91, and that the very existence of the Staff Regulations of the Bank precludes the drawing of strict analogies by reference to those EU Staff Regulations.
112 It follows from the case-law referred to in the preceding paragraph that the admissibility of an action for compensation brought by a member of the staff of the Bank cannot be made conditional on the prior submission to the Bank of a request for compensation or on the existence of an act adversely affecting the person concerned to which it would be possible to attach the claim for compensation. In those circumstances, the request for compensation submitted to the Bank by a member of its staff forms part of the internal amicable settlement procedure, which is in any event optional, under Article 41 of the Staff Regulations of the Bank.
113 In the present case, as stated at paragraph 43 of this judgment, the applicant, by letter of 5 September 2011, submitted a request for compensation to the Bank, seeking reparation for the damage she claimed to have suffered, owing, in particular, to the illegality of the decision of 28 July 2011. On 27 October 2011, when the Bank had not yet determined her request, she brought the present action. Since the request for compensation was submitted to the Bank in the context of the internal administrative procedure aimed at reaching an amicable settlement of the dispute between members of staff and the Bank, and since the admissibility of the action for compensation before the Tribunal is not subject to the exhaustion of that administrative procedure, the present action for compensation must be considered admissible.
114 That conclusion cannot be undermined by the case-law on which the Bank relies in its defence. The judgments in De Nicola v EIB, F‑55/08, EU:F:2009:159 and De Nicola v EIB, F‑59/09, EU:F:2011:19 to which it refers were set aside, respectively, specifically on the points on which the Bank relies, in the judgments of the General Court in De Nicola v EIB (EU:T:2012:205) and De Nicola v EIB (EU:T:2013:461), on which, moreover, the Tribunal asked the Bank to comment in the context of the measures of organisation of the procedure (see paragraph 107 above).
115 Likewise, the Tribunal observes that paragraph 137 of its judgment in De Nicola v EIB (EU:F:2011:19), a paragraph on which the Bank also relies in its defence, is irrelevant, since it relates to the question of the starting point for the purpose of calculating the reasonable period within which an employee of the Bank must bring his action before the Tribunal in order not to be held to be out of time. Likewise, paragraphs 26 to 30 of the judgment in Review Arango Jaramillo and Others v EIB (EU:C:2013:134), on which the Bank relies, in response to the measures of organisation of procedure, in its comments on the judgments of the General Court in De Nicola v EIB (EU:T:2012:205) and De Nicola v EIB (EU:T:2013:461), are not relevant either, as they deal with the concept of the ‘reasonable time’ within which a member of staff of the Bank must bring an action for annulment of an act adopted by the Bank which adversely affects him.
116 In the present case, the Tribunal is not required to consider the question of the duration of the period within which an action must be brought before the Courts of the European Union if it is not to be considered to be out of time, but to consider whether or not it may determine an action for compensation. In particular, it must analyse whether it may determine an action for compensation which a member of staff of the Bank has brought without having awaited the Bank’s response to the request for compensation which he had previously submitted. The Bank’s argument in defence is therefore irrelevant.
117 In the second place, as regards the inadmissibility in part of the claim for compensation on the ground of lis pendens, it should be borne in mind that where an action involves the same parties, the same subject-matter and the same pleas in law as an action brought previously, it must, in accordance with settled case-law, be dismissed as inadmissible (order in Vienne and Others v Parliament, F‑22/06, EU:F:2006:89, paragraph 12 and the case-law cited).
118 The Tribunal must therefore consider whether the actions in Case F‑95/11 and in the present case, brought on 28 September and 27 October 2011 respectively, are between the same parties, have the same subject-matter and are based on the same pleas in law.
119 As regards the condition that the parties in both actions must be the same, it must be held that that condition is satisfied in the present case: both actions are between the applicant and the Bank.
120 As regards the conditions relating to identity of subject-matter, it should be observed that in Case T‑95/11 the applicant seeks compensation for the damage resulting from the illegality of the Bank’s decision, as set out in the note to staff of 30 March 2011, to alter the nature of her tasks and also the conditions in which they are exercised by relieving her of the responsibilities which she assumed as regards the general risk policy. She also seeks reparation for the damage which she claims to have suffered following the Bank’s breach of its duty to have regard for the welfare of its staff and its duty of protection which it is required to observe when its staff are absent on grounds of ill health, and also of Article 42 of the Staff Regulations of the Bank, by not having adopted and subsequently communicated to her an individual decision relating to the alteration of the conditions of the exercise and nature of her duties.
121 In the present case, the applicant seeks reparation for the damage caused to her by the illegality of the decision of 28 July 2011 and the fact that she was obliged to appear before a selection panel one of the members of which was, at her request, the subject of an ongoing investigation procedure for psychological harassment.
122 Consequently, it must be held that the claims for compensation in the present action and those in Case F‑95/11 do not have the same subject-matter. The Bank’s plea of inadmissibility based on lis pendens must therefore be rejected.
123 In the light of the foregoing considerations, it must be concluded that the claim for compensation is admissible.
Merits
Arguments of the parties
124 The applicant claims that the selection procedure gave rise to great anxiety on her part since, in spite of her requests, she was required to appear before a selection panel one of the members of which was one of the alleged harassers subject to an investigation procedure which she had initiated and which was ongoing.
125 The applicant also asserts that the decision of 28 July 2011 caused her to experience feelings of incomprehension and humiliation and profound disappointment in relation to the Bank. That decision also caused damage to her professional reputation, since, whereas most of the functions attached to the post at issue were assigned to her before the reorganisation of the ‘Risk Management’ DG, she was not appointed to that post. The decision of 28 July 2011 thus caused her significant non-material damage, which she evaluates on an equitable basis at EUR 50 000.
126 Last, the applicant maintains that the decision of 28 July 2011 caused her material damage, corresponding to loss of remuneration, since her appointment to the post at issue would have enabled her to make a decisive contribution to the strategic objectives of the ‘Risk Management’ DG and to make more rapid career progress. The applicant evaluates the material damage on an equitable basis at EUR 436 100.
127 The Bank asserts that the claim for compensation is wholly unfounded, as it cannot be accused of any unlawful conduct. In any event, so far as material damage is concerned, the applicant has not demonstrated actual damage, as the loss of remuneration is purely hypothetical.
Findings of the Tribunal
128 According to settled case-law, in order for the administration to be held liable, the applicant must demonstrate that there was an irregularity, actual damage and a causal link between the conduct and the damage relied on. As those conditions must be satisfied cumulatively, the fact that one of them has not been satisfied is a sufficient basis on which to dismiss an action for damages (judgment in Arguelles Arias v Council, F‑122/12, EU:F:2013:185, paragraph 128).
129 In the present case, it should be observed that the non-material damage on which the applicant relies has its origin, in part, in the decision of 28 July 2011 and in part in the fact that she was required to appear before a selection panel the composition of which included one of her alleged harassers, against whom she knew an investigation procedure was in progress and who had a conflict of interests in relation to her.
130 At paragraph 104 of the present judgment it was held that the decision of 28 July 2011 must be annulled on the ground of breach of the selection panel’s duty of impartiality and breach of the principle of equal treatment for candidates, and at paragraph 77 of the present judgment it was held that Mr Y ought to have refrained from taking part in the selection panel’s interview with the applicant and during its appraisal of her. As irregularities on the part of the Bank have been established, the Tribunal must consider whether those errors had harmful consequences for the applicant.
131 As regards, in the first place, the non-material damage which the applicant claims to have suffered, it should be borne in mind that, according to settled case-law, the annulment of a measure vitiated by illegality may constitute, in itself, appropriate and, in principle, sufficient reparation for any non-material damage which that measure may have caused, unless the applicant shows that he has sustained non-material damage that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment (judgment in CH v Parliament, F‑129/12, EU:F:2013:203, paragraph 64).
132 The Tribunal recalls that it is common ground that the feeling of injustice and the anxiety caused by the fact that an individual is required to undergo judicial proceedings in order to secure recognition of his rights constitutes harm that can be inferred from the mere fact that the administration acted unlawfully. Aware that that harm is reparable where the harm is not compensated by the satisfaction resulting from the annulment of an act (see, to that effect, judgment in CC v Parliament, F‑9/12, EU:F:2013:116, paragraph 128, under appeal before the General Court in Case T‑457/13 P), the Tribunal, taking into account the circumstances in which the decision of 28 July 2011 was adopted, namely following a selection procedure in which the applicant was required to appear before a selection panel chaired by one of the alleged harassers against whom an investigation procedure was to her knowledge in progress and who had a conflict of interests in relation to her, and during which the principle of equal treatment for candidates was not observed, decides that on an equitable assessment, in the particular circumstances of the present case, of the non-material harm suffered by the applicant, reparation for that head of damage should be set at EUR 25 000.
133 As regards, in the second place, the applicant’s request that the Bank should be ordered to make reparation for the material damage which the decision of 28 July 2011 caused her on the ground that the decision not to appoint her to the post at issue had an impact on her future remuneration, the Tribunal finds that the applicant has not established that she has suffered actual damage. Even on the assumption that, following the selection procedure, the applicant had been appointed to the post at issue, it is impossible to determine in real terms what opportunities for advancement in career she would have had, as such opportunities for advancement are purely hypothetical. It follows that the applicant’s claim for compensation under that head cannot be upheld.
134 It follows from all of the foregoing that the Bank must be ordered to pay the applicant the sum of EUR 25 000.
Costs
135 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.
136 It follows from the grounds set out in the present judgment that, as the action has been essentially successful, the Bank is the unsuccessful party. Moreover, in her pleadings, the applicant has expressly requested that the Bank be ordered to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, the Bank must bear its own costs and be ordered to pay the costs incurred by the applicant.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby:
1. Annuls the decision of the President of the European Investment Bank of 28 July 2011 appointing Mr A to the post of head of the ‘Risk Policy and Pricing’ division;
2. Orders the European Investment Bank to pay CG the sum of EUR 25 000;
3. Dismisses the action as to the remainder;
4. Declares that the European Investment Bank is to bear its own costs and orders it to pay the costs incurred by CG.
Rofes i Pujol | Bradley | Svenningsen |
Delivered in open court in Luxembourg on 10 July 2014.
W. Hakenberg | | M.I. Rofes i Pujol |