Appeal brought on 6 December 2011 by Carlo De Nicola against the judgment of the Civil Service Tribunal of 28 September 2011 in Case F-13/10, De Nicola v EIB

(Case T-618/11 P)

Language of the case: Italian

Parties

Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by L. Isola, lawyer)

Other party to the proceedings: European Investment Bank

Form of order sought by the appellant

The appellant claims that the Court should:

annul:

the measure of 23 September 2009 by which the Appeals Committee rejected the appellant's complaint against the staff report for 2008, and all related measures;

the entire staff report for 2008;

the promotions decided upon on 18 March 2009;

all related, consequent and prior measures, including the guidelines laid down by the HR Directorate (in the proceedings at first instance, the appellant adjusted his claim, requesting that the guidelines be disapplied);

order the EIB to pay compensation for the consequent material and non-material damage, to pay the costs of the proceedings, together with interest and a sum in respect of monetary depreciation;

order the EIB to pay the costs.

Pleas in law and main arguments

The present appeal is brought against the judgment of the Civil Service Tribunal (CST) of 28 September 2011 dismissing the appellant's action seeking: (i) annulment of the decision of 23 September 2009 adopted by the Appeals Committee of the European Investment Bank; (ii) annulment of the appellant's staff report for 2008; (iii) annulment of the promotion decisions of 18 March 2009; (iv) annulment of the decision refusing promotion; and (v) an order that the EIB pay compensation for the material and non-material damage which the appellant claims to have suffered.

The appellant relies on the following grounds of appeal:

(A) The claims seeking annulment

(1)    The appellant complains that the CST failed to rule substantially on his application for annulment of the decision of the Appeals Committee, which forms part of his personal file and could have an adverse effect on his future career;

(2)    In the appellant's opinion, since he challenged two separate measures on different grounds, the CST cannot legitimately refuse to give a ruling, all the more so since, first, that court has always ruled out the possibility of consequential annulment (relating to the related, consequent and prior measures, which are not, however, independent but closely connected to the measures declared invalid and/or ineffective) and, second, the appellant also has a clear interest in a fresh decision on the part of the Appeals Committee, which is the body adjudicating on the substance of the complaint, and, unlike the General Court, can even substitute its own assessment for that given by his superiors;

(3)    With regard to the challenge to his staff report, the appellant complains that, of its own motion, the CST, first, unlawfully refused to take account of the numerous documented incidents of harassment to which he had been subjected in the course of the year, thus reversing the burden of proof, failed to rule on virtually all the pleas relied on - ranging from claims alleging failure to assess some of his tasks to inappropriate objectives, from failure to consider the exceptional initiative shown to bad faith on the part of his assessor etc;

(4)    The appellant also alleges that the grounds of the judgment under appeal are erroneous, often as a result of distortion of the application, and failure to rule on the contested unlawful aspects the 'Guide to staff reports', which were designed to enable 'friends' and not 'the best' to be promoted and to evade review by the court, having transformed the annual assessment from an absolute into a relative exercise, and never having specified the conditions under which a performance is to be regarded as excellent, very good, in keeping with expectations or inadequate;

(5)    Lastly, the appellant complains of the failure to indicate the criteria used to interpret the request he made to the Appeals Committee and to rule out the possibility that, in challenging the fact that he was not promoted, he did not intend to challenge only the promotions decided on by the EIB that are documented.

(B) The claim for damages

(6)    With regard to the claim for compensation for material and non-material damage resulting from the EIB's unlawful conduct, once again the appellant alleges that the defence put forward by the CST of its own motion is inadmissible, that court having, first, reduced the claim on the basis of pleas not raised by the EIB, then rejected the claim on the grounds of pending proceedings which the EIB had withdrawn and do not exist, because they are not substantiated, because no provision is made for the defect of litis pendenza in the Code of Procedure and because, at best, the allegedly similar claim was pending at a different level of proceedings.

(7)    The appellant also alleges substantive failure to rule on his request that the limitation periods laid down by his own national law be applied, both on the grounds that his employment contract is governed by private law and that, as the weaker contracting party, he is entitled to have the more favourable rules applied to him.

(8)    Lastly, the appellant claims that the premiss on which the CST based its decision was incorrect, given that he intended to challenge the unlawful conduct of his employer, whereas the court persisted in identifying an unlawful act, claiming that it could apply to his private law contract those provisions which are, instead, expressly laid down for public employees.

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