JUDGMENT OF THE GENERAL COURT (First Chamber)
10 March 2021 (*)
(Civil service – EIB staff – Remuneration – Admissibility – Time limit for submitting a request to initiate the conciliation procedure – Act adversely affecting an official – Geographical mobility allowance – Transfer to an external office – Refusal to grant the allowance – Action for annulment and for damages)
In Case T‑134/19,
AM, represented by L. Levi and A. Champetier, lawyers,
applicant,
v
European Investment Bank (EIB), represented by G. Faedo and M. Loizou, acting as Agents, and A. Dal Ferro, lawyer,
defendant,
APPLICATION based on Article 270 TFEU and on Article 50a of the Statute of the Court of Justice of the European Union seeking, first, the annulment of the decisions of the EIB of 30 June and 11 December 2017 and, in so far as necessary, of the decision of the President of the EIB of 20 November 2018 confirming those decisions, by which it refused to grant the applicant the geographical mobility allowance and, second, compensation for the material and non-material damage allegedly suffered by the applicant further to those decisions,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, N. Półtorak and M. Stancu (Rapporteur), Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure and further to the hearing on 14 October 2020,
gives the following
Judgment
Background to the dispute
1 The applicant, AM, was hired by the European Investment Bank (EIB) on 1 June 2014 as part of the ‘Joint Assistance to Support Projects in European Regions’ (Jaspers) programme, on the basis of a one-year, fixed-term contract which was subsequently renewed twice, respectively from 1 June 2015 to 31 May 2017 and then from 1 June 2017 to 31 May 2020.
2 From the start of his first contract with the EIB and until 31 March 2017, he was assigned to the EIB’s external office in Vienna (Austria).
3 By email of 23 March 2017 (‘the decision of 23 March 2017’), the EIB confirmed the applicant’s transfer from the external office in Vienna to its office in Brussels (Belgium) with effect from 1 April 2017 and until the end of the contract he had at that time, that is to say 31 May 2020.
4 It is apparent from the documents lodged before the Court that there are two versions of that decision.
5 The first version, sent to the applicant on 23 March 2017, states that assignments to the external offices are governed by Annex VII to the EIB’s Staff Rules (‘the Staff Rules’).
6 The second version of that same decision, which the applicant received on 24 March 2017 and which he signed on 28 March 2017, states, however, that such assignments are governed by Annex I to those rules.
7 On 5 July 2017, the EIB sent the applicant a new decision, dated 30 June 2017 (‘the decision of 30 June 2017’), containing the contractual and administrative terms and conditions applicable to his transfer to Brussels and asked him to agree to that decision. Specifically, that decision explained that the applicant’s transfer did not fall within the scope of Article 1.4 of the Staff Rules or within that of the applicable special rules within the meaning of Annex VII to the Staff Rules and that, therefore, he was not entitled to receive the geographical mobility allowance. The applicant did not ever give his agreement by countersigning the decision.
8 On 5 October 2017, the applicant requested that a conciliation procedure be initiated in order to contest the refusal to grant him that allowance, as provided for in Article 1.4 of the Staff Rules.
9 By email of 11 December 2017 (‘the decision of 11 December 2017’), the EIB, first, reiterated its refusal to pay that allowance to the applicant and, second, asked the applicant if he wished to maintain his request for the conciliation procedure to be initiated, even though it was unlikely that that procedure would have a satisfactory outcome.
10 By email of 20 December 2017, the applicant confirmed that request and, by email of 8 January 2018, the EIB agreed to it and initiated the conciliation procedure.
11 In its report of 12 June 2018, the conciliation board of the EIB (‘the Conciliation Board’) found that the applicant’s situation fell within the scope both of Article 1.4 of the Staff Rules and of Annex VII thereto and that, therefore, he should have received the geographical mobility allowance from 1 April 2017.
12 On 6 November 2018, the applicant lodged a complaint alleging maladministration with the European Ombudsman on the ground that he had not yet received a decision from the President of the EIB further to the report by the Conciliation Board.
13 On 20 November 2018, the President of the EIB sent the applicant his decision (‘the decision of 20 November 2018’) not to adopt that board’s findings, thus confirming the EIB’s refusal to grant him the geographical mobility allowance.
Procedure and forms of order sought
14 By application lodged at the Registry of the General Court on 28 February 2019, the applicant brought the present action.
15 By separate document of 7 March 2019, the applicant applied to be granted anonymity in accordance with Article 66 of the Rules of Procedure of the General Court. That application was granted on 17 April 2019.
16 The EIB lodged its defence on 17 May 2019.
17 The applicant lodged its reply on 10 July 2019.
18 The written part of the procedure was closed after the rejoinder was lodged on 22 August 2019.
19 On 12 September 2019, the applicant requested that a hearing be held pursuant to Article 106 of the Rules of Procedure.
20 Following changes to the composition of the General Court, the President of the General Court, by decision of 16 October 2019, acting pursuant to Article 27(3) of the Rules of Procedure, reassigned the case to a new Judge-Rapporteur, attached to the First Chamber.
21 On a proposal from the Judge-Rapporteur, the General Court allowed the applicant’s request and opened the oral part of the procedure.
22 On 3 March 2020, the Court, as part of the measures of organisation of procedure provided for in Article 89(3) of its Rules of Procedure, put questions in writing to the EIB, to which the latter replied within the prescribed time limit.
23 On 14 April 2020, on account of the continued health crisis connected with Covid-19, the Court asked the parties whether, despite that crisis, they wanted their submissions to be heard at a hearing. On 20 April 2020, the applicant replied that he maintained his request to be heard. On 8 May 2020, the EIB replied that it did not wish to be heard.
24 The applicant claims, in essence, that the Court should:
– annul the decisions of 30 June and 11 December 2017 (together, ‘the contested decisions’);
– in so far as necessary, annul the decision of 20 November 2018 confirming those decisions;
– order the EIB to pay the geographical mobility allowance as of 1 April 2017;
– order the EIB to pay default interest on that allowance payable since 1 April 2017, until full payment, at the interest rate of the European Central Bank (ECB), increased by two percentage points;
– order the EIB to compensate for the non-material harm suffered;
– order the EIB to pay the costs.
25 The EIB contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs.
Law
Subject matter of the action
26 The applicant seeks the annulment of the two contested decisions and, in so far as necessary, of the decision of 20 November 2018 inasmuch as it rejects the findings of the Conciliation Board and confirms the two contested decisions.
27 In the first place, the applicant submits that the two contested decisions, which were adopted, respectively, on 30 June and 11 December 2017, adversely affect him in so far as they refuse to grant him the geographical mobility allowance. He explains that the decision of 11 December 2017 reiterates the EIB’s refusal, as expressed in the latter’s decision of 30 June 2017.
28 In that regard, even assuming that the decision of 11 December 2017 is merely confirmatory of the decision of 30 June 2017, it must be recalled that, according to settled case-law, the applicant, having brought an action within the prescribed time limit, is entitled to challenge either the confirmed decision, or the confirmatory decision, or both (see, to that effect, judgment of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 54 and the case-law cited).
29 In the second place, as regards the decision of 20 November 2018, it must be recalled that, in accordance with settled case-law relating to, inter alia, the Staff Regulations of Officials of the European Union and the ECB’s Staff Rules, claims for annulment formally directed against the decision rejecting a pre-litigation application challenging an act adversely affecting an official or staff member have the effect of bringing that act before the Court where those claims, in themselves, have no independent content (see, to that effect, judgments of 26 March 2020, Teeäär v ECB, T‑547/18, EU:T:2020:119, paragraph 24 and the case-law cited, and of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 21).
30 The Court observes that that case-law applies, by analogy, to the present case.
31 Indeed, the view must be taken, as regards the pre-litigation procedure specific to disputes between the EIB and its staff, that Article 41 of the EIB Staff Regulations, in the version thereof applicable to members of staff, such as the applicant, who entered into service at the EIB after 1 July 2013 (‘the Staff Regulations II’), requires the conciliation procedure to be initiated prior to the bringing of an action under that provision (see, to that effect, judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 71).
32 That article reads as follows:
‘Any proceedings instituted by a member of staff in respect of an action of the [EIB] which would adversely affect him must be brought within three months.
In addition to proceedings being instituted before the Court of Justice of the European Union, an amicable settlement shall be sought, prior to the institution of any proceedings, before the [EIB’s] Conciliation Board in respect of disputes …
The request for conciliation must be made within three months of the day of the occurrence of the facts or of the notification of the actions giving rise to the dispute.’
33 Thus, the purpose of the conciliation procedure is to allow for an amicable settlement of the disputes which have arisen between the EIB and its staff members, and the decision of the President of the EIB ending that procedure is merely a precondition for bringing the matter before the judicature. In those circumstances, in accordance with the case-law relating to disputes covered by the Staff Regulations of Officials of the European Union or by the ECB’s Staff Rules, as recalled in paragraph 29 above, the view must be taken that claims for annulment formally directed against the decision of the President of the EIB ending a conciliation procedure have the effect of bringing before the judicature the act adversely affecting the applicant that forms the subject matter of that procedure, except where the scope of that decision differs from that of the act forming the subject matter of the conciliation procedure. Where that decision contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original act, it is a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure, or will even regard it as an act adversely affecting the applicant replacing the contested measure (see, by analogy, judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34 and the case-law cited).
34 In the present case, since the head of claim seeking the annulment of the decision of 20 November 2018 has no independent content, as that decision merely rejects the findings of the report by the Conciliation Board of 12 June 2018 on the basis, in essence, of the same grounds as those relied on in the contested decisions, there is therefore no need to rule specifically on that head of claim. In the examination of the lawfulness of the contested decisions, account should, however, be taken of the statement of reasons given in the decision of 20 November 2018, since that statement of reasons is deemed to be the same as that of the contested decisions (see, by analogy, judgments of 26 March 2020, Teeäär v ECB, T‑547/18, EU:T:2020:119, paragraph 25 and the case-law cited, and of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 22).
Admissibility of the action
35 Without formally raising a plea of inadmissibility pursuant to Article 130 of the Rules of Procedure, the EIB claims that the present action is inadmissible because the request to initiate the conciliation procedure was submitted by the applicant outside the three-month period provided for in the third paragraph of Article 41 of the Staff Regulations II.
36 In that regard, the EIB argues, primarily, that the day from which the period to challenge the non-payment of the geographical mobility allowance ran was 12 April 2017, the date on which the applicant received his first salary statement following his transfer to the external office in Brussels.
37 Since the applicant had already learned of the non-payment of that allowance from that statement, the decision of 30 June 2017 is merely confirmation of the administrative position adopted by the EIB in his regard and, therefore, is not an act adversely affecting him.
38 In the alternative, the EIB takes the view that, even in the scenario most favourable to the applicant, where the date of that decision is taken into account as the dies a quo, it appears that, in any event, the applicant failed to comply with the three-month period laid down in the third paragraph of Article 41 of the Staff Regulations II for referring the matter to the Conciliation Board.
39 The applicant contests the merits of the EIB’s plea of inadmissibility.
40 It must be recalled, first of all, that notification of the monthly salary or pension statement has the effect of setting time running for the purposes of the time limits for making a complaint and bringing an action against an administrative decision where the fact and scope of that decision becomes apparent, clearly and for the first time, from that statement (see judgment of 12 February 2020, ZF v Commission, T‑605/18, EU:T:2020:51, paragraph 61 and the case-law cited).
41 It must be observed, in that regard, that that case-law has been applied in situations where the fact and scope of decisions of a purely financial subject matter, which by their nature can be conveyed in salary statements, became apparent from the salary statements against which the actions were directed. Salary statements have been regarded as constituting acts adversely affecting the recipient where they conveyed decisions concerning, inter alia, the payment of the official’s salary, interest on salary arrears, the adjustment of weightings applicable to the official’s salary, the reimbursement of travel expenses, the expatriation allowance, the amount of family allowances or even the fixing of the parental contribution scale in respect of nursery services (see judgment of 9 January 2007, Van Neyghem v Committee of the Regions, T‑288/04, EU:T:2007:1, paragraph 40 and the case-law cited).
42 However, in the present case, although it is true that the applicant’s salary statement for the month of April 2017 did convey, in financial terms, the effects of the decision to transfer him to the external office in Brussels, the fact remains that the EIB’s position vis-à-vis the grant of the geographical mobility allowance was not clearly defined by that decision, and still less by that salary statement.
43 In that regard, the view must be taken that, first, the omission of an allowance from the salary statement of the person concerned does not necessarily imply that the administration denies his entitlement to it (see, to that effect, judgment of 22 September 1988, Canters v Commission, 159/86, EU:C:1988:432, paragraph 7). Second, as noted in paragraphs 5 and 6 above, the applicant received two different versions of the decision 23 March 2017, comparison of which reveals, as he rightly points out, a contradiction regarding the rules applicable to his transfer.
44 In those circumstances and since the decision of 30 June 2017 is the first to set out clearly the EIB’s refusal to grant the geographical mobility allowance to the applicant, that decision must be regarded as being the first act adversely affecting the applicant, which had the effect of setting time running for the purposes of the time limits for making a complaint and bringing an action.
45 It must be clarified, in that regard, that it is the responsibility of the party alleging that an action is out of time, having regard to the time limits laid down by the applicable rules, to prove on what date the contested decision was notified and, in any case, on what date the person concerned learned of it in the case of an individual measure (see, to that effect, judgment of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 59 and the case-law cited).
46 However, in the present case, the EIB, with which that burden of proof rests, contests neither the applicant’s claim nor the evidence adduced by the applicant that he was made aware of the decision of 30 June 2017 by email of 5 July 2017.
47 It follows that the date from which the time limit for submitting the request for conciliation must be calculated in the present case is 5 July 2017, the date on which the decision of 30 June 2017 was notified to the applicant. Therefore, by submitting, on 5 October 2017, his request for the conciliation procedure to be initiated, the applicant complied with the period of time provided for in the third paragraph of Article 41 of the Staff Regulations II.
48 It follows from the foregoing considerations that the plea of inadmissibility raised by the EIB must be rejected.
Claims for annulment
49 In support of his claims for annulment, the applicant relies on four pleas in law, alleging, first, infringement of Article 1.4 of the Staff Rules and Article 11 of Annex VII to those rules; second, infringement of the principles of legitimate expectations, the predictability of the law and the duty to have regard to the welfare of staff; third, infringement of the principle of non-discrimination, of Article 1.3 of the EIB’s Staff Code of Conduct and of Article 21 of the Charter of Fundamental Rights of the European Union; and, fourth, infringement of the principle of sound administration and of the ‘reasonable time’ principle.
The first plea in law, alleging infringement of Article 1.4 of the Staff Rules and of Article 11 of Annex VII to those rules
50 First, the applicant claims, in essence, that his transfer to the external office in Brussels was not decided on a permanent basis, since the decision of 23 March 2017 clearly states that his assignment is temporary.
51 Second, the applicant contests the EIB’s interpretation of Article 1.4 of the Staff Rules and of Article 11 of Annex VII to those rules in so far as the EIB makes the grant of the geographical mobility allowance subject to the condition that the staff member returns to the EIB’s headquarters in Luxembourg (Luxembourg) following his assignment to an external office.
52 The applicant states, in that regard, that the only conditions laid down in Article 1.4 of the Staff Rules for the grant of that allowance are, first, the transfer of the staff member to another place of employment within the European Union and, second, at least 12 months’ previous employment. Accordingly, he is eligible to be granted the allowance since, first, he was transferred to another place of employment within the European Union, namely the external office in Brussels, and, second, he had completed at least 12 months’ service at the previous place of assignment, because he had worked at the external office in Vienna for three years.
53 The EIB contests those arguments, stating in response, in essence, that the geographical mobility allowance is granted only to staff members assigned to the external offices for a specific period of time and who, following that temporary assignment at such an office, return to the EIB’s headquarters, even if the ‘EIB’s headquarters’ is to be understood to mean not only the head office in Luxembourg but also any other place of recruitment or external office. Specifically, it submits that it is apparent from the second paragraph of Article 2 of Annex VII to the Staff Rules that, if the person permanently assigned to an external office ends his service at the EIB at the external office in question, he is not entitled to the allowance.
54 This is the case with the applicant, who was permanently assigned to the external office in Brussels until the end of his contract with no prospect of returning to the EIB’s headquarters at the end of that assignment.
55 In order to address the present plea in law, it is necessary to determine the conditions for granting the geographical mobility allowance in the case of a transfer to an external office of the EIB within the European Union and, specifically, if, as the EIB contends, the grant of that allowance is also subject to the return of the person concerned to the EIB’s headquarters at the end of the assignment to that external office.
56 First of all, it must be observed that the conditions for granting the geographical mobility allowance in the case of a transfer to an external office of the EIB within the European Union are governed by Article 1.4 of the Staff Rules.
57 That article reads as follows:
‘A geographical mobility allowance shall be accorded to a member of staff transferred to another place of employment within the European Union. The length of the assignment shall be set at between one and three years and may be renewed for a period of one year, up to a maximum of five years in total.
The allowance shall be payable throughout the assignment as from the date of actual transfer. To be entitled to the allowance, staff must have completed at least 12 months’ service at the previous place of assignment.
In the event of a transfer to Luxembourg, the allowance shall be paid for a maximum period of one year.
…
Where members of staff are assigned to an office of the [EIB] outside the European Union, the geographical mobility allowance shall be provided in accordance with the conditions set out in Annex VII to the [Staff Rules].’
58 It is clear from a literal interpretation of that article that, as the applicant rightly observes, two cumulative conditions must be met in order for a staff member to be eligible for the geographical mobility allowance in the case of a transfer to an external office of the EIB within the European Union: first, transfer to another place of employment within the European Union for a period of between one and five years and, second, completion of at least 12 months’ service at the previous place of assignment. It therefore follows from the wording of the article that, if those two conditions are met, the person concerned is entitled to that allowance throughout the assignment to the external office to which he or she was transferred.
59 Accordingly, it must be observed, from the outset, that that article does not contain any explicit reference to the condition of temporary assignment to an external office within the European Union on which the EIB relies, in accordance with which the staff member must return to the EIB’s headquarters at the end of the assignment in order to be eligible for the allowance at issue.
60 However, in accordance with settled case-law, it is necessary, in interpreting a provision of EU law, to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see judgment of 24 April 2018, Caisse régionale de crédit agricole mutuel Alpes Provence and Others v ECB, T‑133/16 to T‑136/16, EU:T:2018:219, paragraph 54 and the case-law cited).
61 On the issue of context specifically, it must be noted that, although Article 1.4 of the Staff Rules governs the conditions for granting the geographical mobility allowance, it is, however, Annex VII to those rules which contains the special rules applicable to members of staff assigned to the external offices of the EIB. In that connection, it must be clarified that, although the final paragraph of Article 1.4 of the Staff Rules makes explicit reference to that annex only in respect of transfers to an external office outside the territory of the European Union, Article 1 of the annex explicitly provides that that annex also applies to staff transferred to an external office of the EIB within the European Union. Furthermore, the parties are in agreement as to that interpretation. It is therefore in that context that Article 1.4 of the Staff Rules must be interpreted, as must, therefore, the conditions for granting the allowance at issue in cases of transfer to an external office of the EIB within the European Union.
62 In particular, Article 2 of Annex VII to the Staff Rules, which is headed ‘Duration of the assignment’, provides:
‘The assignment to an External Office shall, in principle, be for a period of three years. In the interest of the service, the assignment may, at the discretion of the [EIB], be prolonged up to a total maximum duration of six years.
After the period of the assignment foreseen in the previous paragraph assignees shall be required to return to the Headquarters [of the EIB]. They shall be reintegrated into a position at the functional level (if the assignee’s contract of employment is governed by the Staff Regulations I) or at the grade level (if the assignee’s contract of employment is governed by the Staff Regulations II) they occupied at the end of the assignment.’
63 Article 11 of the annex provides that members of staff assigned to an external office are entitled to the geographical mobility allowance provided for in Article 1.4 of the Staff Rules.
64 It is therefore apparent from a combined reading of Articles 2 and 11 of Annex VII to the Staff Rules that the duration of an assignment to an external office cannot exceed that provided for in the applicable rules and, during that assignment, a member of staff satisfying the conditions laid down in the relevant Staff Rules is entitled to the geographical mobility allowance. Furthermore, it is provided that, at the end of that assignment, the member of staff concerned must return to the EIB’s headquarters.
65 Thus, it must be stated that the return to the EIB’s headquarters, as provided for in Article 2 of Annex VII to the Staff Rules, represents not a condition for granting the geographical mobility allowance but merely the logical corollary to the end of the temporary assignment to an external office for staff members whose contract has not expired and who must return to the EIB’s headquarters at the end of that period. Furthermore, that article lays down a guarantee that, at the end of that period, the staff members concerned will be reintegrated into a position at the functional level or grade level they occupied at the end of their assignment to such an external office.
66 It must, admittedly, be observed that, although Annex VII to the Staff Rules is intended to apply, as clarified by Article 1 thereof, to ‘members of staff of the [EIB] assigned to an External Office within or outside the European Union’, no provision of that annex, nor even any provision in general, governs the case of a member of staff, such as the applicant, whose fixed-term contract ends at the end of his assignment to an external office.
67 However, even in the absence of a specific provision in that regard, the EIB’s argument that, in such circumstances, such a transfer must be regarded as permanent, such that Article 1.4 of the Staff Rules does not apply, cannot succeed.
68 It must be noted that the premiss upon which that argument is based, that is to say the permanent nature of the applicant’s transfer, is incorrect.
69 It must be observed, in that regard, that it is clear from the decision of 23 March 2017, regardless of the version thereof sent to the applicant, that, first, the applicant’s transfer to the external office in Brussels was effective until the end of his contract, that is to say 31 May 2020; second, if that contract were to be extended, the terms and conditions of that assignment would have to be reviewed; third, assignments to the external offices of the EIB have a maximum duration of six years and cannot be extended beyond the duration of the current contract.
70 Accordingly, it must be held that the actual duration of the applicant’s assignment to the external office in Brussels corresponded, as was provided in the decision of 23 March 2017, to a specific period from 1 April 2017 to 31 May 2020.
71 In those circumstances, it must be observed that not only can a transfer to an external office on the basis of the relevant Staff Rules not be considered, by definition, as ‘permanent’, since, from the outset, it is limited to the maximum duration provided for in those rules, but, even if a member of staff of the EIB is assigned to such an office for a period of time which ends at the same time as the end of his or her fixed-term contract, as in the present case, that member of staff is eligible for that allowance, provided that he satisfies the two cumulative conditions laid down in Article 1.4 of the Staff Rules and set out in paragraph 58 above.
72 It follows from all the foregoing that, by refusing to grant the applicant the geographical mobility allowance, the EIB infringed Article 1.4 of the Staff Rules.
73 The first plea in law must therefore be upheld.
74 Accordingly, the claims for annulment must be upheld and the contested decisions annulled in so far as they refuse to grant the geographical mobility allowance to the applicant, without it being necessary to rule on the other pleas in law raised by the applicant in support of those claims.
Claims for damages
75 The applicant claims, in essence, first, compensation for the alleged material damage stemming from the non-payment of the geographical mobility allowance from 1 April 2017 and, second, compensation for the alleged non-material damage arising from the failure to act on the part of the EIB to conclude the conciliation procedure.
The claim for compensation for alleged material damage and the payment of default interest
76 By his first head of claim for damages, the applicant claims, in essence, compensation of EUR 36 045.60, which corresponds to the amount of the geographical mobility allowance payable from 1 April 2017 up until the date on which the present action was brought. He submits that that sum must be increased by EUR 1 567.20 for each additional month.
77 By his second head of claim for damages, the applicant claims the payment of default interest, fixed at the interest rate of the ECB plus two percentage points, on the amounts stated in paragraph 76 above.
78 It is sufficient to recall, in this regard, that, pursuant to the first paragraph of Article 266 TFEU, the institution, body, office or entity whose act has been declared void is to be required to take the necessary measures to comply with the judgment. However, by the abovementioned claims, the applicant seeks an order that the EIB pay him an amount that would be owed to him on the basis of the decision that the EIB will be required to take in compliance with the present judgment ordering annulment.
79 Since those claims are, therefore, premature, they cannot be accepted (see, to that effect, judgment of 25 June 2020, ZS v EIB, T‑659/18, not published, EU:T:2020:281, paragraph 90 and the case-law cited).
The claim for compensation of alleged non-material damage
80 By his third head of claim for damages, the applicant claims that the President of the EIB failed to adopt his decision within a reasonable time following the submission of the report by the Conciliation Board, which constitutes a ground for liability on the part of the EIB.
81 In this regard, the applicant alleges that, in addition to the already difficult financial situation in which he found himself because he was not receiving the geographical mobility allowance, the uncertainty caused by the failure of the President of the EIB to take a decision further to that report, which – moreover – forced him to refer the matter to the European Ombudsman, caused him non-material damage which he estimates to be EUR 2 000.
82 The EIB contests those arguments.
83 In that connection, it must be recalled, first of all, that, according to settled case-law, the annulment of an unlawful measure constitutes, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused. That cannot, however, be the case where the applicant shows that he has suffered non-material damage which is separable from the unlawfulness which is the basis for the annulment and which is incapable of being entirely repaired by that annulment (see judgment of 30 January 2020, BZ v Commission, T‑336/19, not published, EU:T:2020:210, paragraph 54 and the case-law cited; see also, to that effect, judgment of 14 September 2017, Bodson and Others v EIB, T‑504/16 and T‑505/16, EU:T:2017:603, paragraph 77 and the case-law cited).
84 Next, it likewise follows from established case-law that, in the context of a claim for damages brought by an official or other staff member, in order for the institution to incur liability, three conditions must be satisfied, concerning the unlawfulness of the conduct alleged against it, the reality of the harm suffered and the existence of a causal link between the act and the harm allegedly suffered. The three conditions giving rise to the institution’s liability are cumulative, which means that if one of them is not met, the institution does not incur liability. Furthermore, the EU Courts are not required to examine those conditions in any particular order (see order of 11 June 2020, Vanhoudt and Others v EIB, T‑294/19, not published, EU:T:2020:264, paragraph 70 and the case-law cited).
85 In the present case, the non-material damage alleged by the applicant is due, in essence, to the feeling of uncertainty caused by the excessive delay with which the President of the EIB adopted the decision closing the conciliation procedure.
86 However, although such not-material damage may be regarded as separable from the unlawfulness which is the basis for the annulment of the contested decisions, that is to say the infringement of Article 1.4 of the Staff Rules, it must however be stated that the application does not contain the slightest proof vis-à-vis the extent of the non-material damage allegedly suffered by the applicant.
87 In those circumstances, the third head of claim for damages must be rejected.
88 In the light of all the foregoing, the contested decisions must be annulled in so far as they refuse to grant the geographical mobility allowance to the applicant and the action dismissed as to the remainder.
Costs
89 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the EIB has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls the decisions of the European Investment Bank (EIB) of 30 June and 11 December 2017 in so far as they refuse AM the geographical mobility allowance;
2. Dismisses the action as to the remainder;
3. Orders the EIB to bear its own costs and to pay those incurred by AM.
Delivered in open court in Luxembourg on 10 March 2021.
[Signatures]