JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
16 September 2013
Case T‑264/11 P
Carlo De Nicola
v
European Investment Bank (EIB)
(Appeal — Civil service — EIB staff — Appraisal — Promotion — 2007 appraisal and promotion year — Decision of the Appeals Committee — Psychological harassment — Reasonable period — Claim for setting aside — Claim for damages)
Appeal: against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 8 March 2011 in Case F‑59/09 De Nicola v EIB [2011] ECR-SC, seeking the setting aside of that judgment.
Held: The judgment of the Civil Service Tribunal of the European Union (First Chamber) of 8 March 2011 in Case F‑59/09 De Nicola v EIB is set aside in so far as it rejects Mr Carlo De Nicola’s claims seeking the annulment of the decision of the Appeals Committee of the European Investment Bank (EIB) and compensation for the damage he claims to have suffered as a result of his harassment by the EIB. The remainder of the main appeal is dismissed. The case is referred back to the Civil Service Tribunal. The costs are reserved.
Summary
1. Appeals — Pleas in law — Plea against a ground of the judgment not necessary to support the operative part — Invalid plea in law
(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 9)
2. Actions brought by officials — Staff of the European Investment Bank — Act adversely affecting an official — Definition — Decision of the EIB’s Appeals Committee concerning an official’s appraisal not containing any judgment of his assessment report — Included
3. EU law — Principles — Duty to act within a reasonable time — Administrative procedure — Judicial proceedings — Criteria for assessment
(Charter of Fundamental Rights of the European Union, Arts 47 and 52(1); Staff Regulations of the European Investment Bank, Art. 41)
4. Actions brought by officials — Staff of the European Investment Bank — Subject-matter — Instruction to the administration — Inadmissibility
5. Officials — Staff of the European Investment Bank — Pre-litigation procedure — Optional nature — Possible analogy with the pre-litigation procedure provided for by the Staff Regulations of Officials — None
(Staff Regulations, Arts 90 and 91; Staff Regulations of the European Investment Bank, Art. 41)
6. Appeals — Pleas in law — Review by the General Court of the Civil Service Tribunal’s refusal to order measures of organisation of procedure or inquiry — Scope
(Art. 256(2) TFEU; Statute of the Court of Justice, Annex I, Art. 11)
1. See the text of the decision.
(see para. 33)
See:
C‑94/02 P Biret et Cie v Council [2003] ECR I‑10565, para. 63, and the case-law cited therein
2. A decision of the European Investment Bank’s Appeals Committee concerning an official’s appraisal which does not contain any judgment of his assessment report but merely decides, first, that it is impossible for the hearing to continue and, second, that its decision must be placed on the personal file of the official concerned is, theoretically, capable of adversely affecting him. The Civil Service Tribunal may not refrain from giving a ruling on whether, first, in the light of the relevant facts of the case, the decision of the Appeals Committee is indeed capable of adversely affecting the appellant and whether, secondly, in reaching those findings, the Committee followed the rules laid down in the appraisal procedure guide. That substantive assessment is necessary since the Bank imposed a limit on the exercise of its discretion in adopting those rules, and members of its staff may rely on them before the Union courts in the light of general legal principles such as the principle of equal treatment and the principle of the protection of legitimate expectations.
By its decision to drop the appellant’s appeal without taking a final decision on the substance, the Appeals Committee denied the appellant its review, and criticised him, at the very least by implication, of having obstructed the proceedings. Such a decision clearly adversely affects the appellant, which provides grounds for his interest in having that decision set aside. Furthermore, the very fact that the Appeals Committee decided to place that decision on the appellant’s personal file is sufficient to find that the decision adversely affects him and that its annulment is liable to procure an advantage for him.
(see paras 40, 41 and 44)
See:
T‑165/01 McAuley v Council [2003] ECR-SC I‑A‑193 and II‑963, para. 44; T‑258/03 Mausolf v Europol [2005] ECR-SC I‑A‑45 and II‑189, para. 25 and the case-law cited therein
F‑55/08 De Nicola v EIB [2009] ECR-SC I‑A‑1-469 and II‑A‑1-2529, paras 39, 54 et seq.
3. Where the duration of a procedure is not set by a provision of EU law, the ‘reasonableness’ of the period of time taken by the institution to adopt the measure at issue is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case. Consequently, the reasonableness of a period cannot be determined by reference to a precise maximum limit determined in an abstract manner, but must be appraised in each case on the basis of the relevant circumstances. Moreover, in the light of the need for consistency, it is appropriate to apply the concept of a reasonable period in the same way to an action or an application in respect of which no provision of EU law has prescribed the period of time within which that action or that application must be brought. In both cases, the Courts of the European Union must take into consideration the particular circumstances of the case.
(see para. 49)
See:
C‑334/12 RX-II Arango Jaramillo and Others v EIB [2013] ECR-SC, paras 25 to 46
4. See the text of the decision.
(see para. 63)
See:
T‑120/01 and T‑300/01 De Nicola v EIB [2004] ECR-SC I‑A‑365 and II‑1671, para. 136; T‑73/05 Magone v Commission [2006] ECR-SC I‑A‑2-107 and II‑A‑2-485, para. 15 and the case-law cited therein
5. The fact that the Staff Regulations of the European Investment Bank, which define administrative remedies, do not, unlike Articles 90 and 91 of the Staff Regulations of Officials, lay down a mandatory pre-litigation procedure prevents the simple transposition of the rules governing legal remedies in the Staff Regulations of Officials, even if those rules are applied flexibly for the sake of guaranteeing legal certainty, in view of the uncertainty surrounding the conditions for the admissibility of actions brought by EIB staff. Although Article 41 of the EIB Staff Regulations refers to an amicable settlement procedure, it immediately states that such a procedure is conducted separately from the action brought before the European Union courts.
In that regard, it follows that the EIB Staff Regulations and particularly Article 41 constitute internal EIB rules which are, in principle, complete, and the nature and ratio legis of which are very different from those of the Staff Regulations of Officials, including Articles 90 and 91. Consequently, the very existence of those internal rules prevents the drawing of any strict analogies with the Staff Regulations of Officials. It is therefore impossible to interpret contra legem the conditions governing the optional internal procedure for an amicable settlement provided for in Article 41 of the EIB Staff Regulations in order to convert that procedure into a mandatory one. Article 41 has no gaps which need to be filled by other rules in order to meet the requirements flowing from overriding principles of law.
(see paras 70-72)
See:
C‑334/12 RX-II Arango Jaramillo and Others v EIB, para. 39
T‑7/98, T‑208/98 and T‑109/99 De Nicola v EIB [2001] ECR-SC I‑A‑49 and II‑185, paras 96 to 101; T‑385/00 Seiller v EIB [2003] ECR-SC I‑A‑161 and II‑801, paras 50 to 52, 65 and 73; T‑37/10 P De Nicola v EIB [2012] ECR-SC, paras 76 and 77)
6. See the text of the decision.
(see para. 81)
See:
C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, para. 319; 10 June 2010, C‑498/09 P Thomson Sales Europe v Commission, not published in the ECR, para. 138