JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Single Judge)
18 December 2015
Case F‑9/14
Carlo De Nicola
v
European Investment Bank (EIB)
(Civil service — EIB staff — Appraisal — 2012 appraisal report — Unlawfulness of the decision of the Appeals Committee — No need to adjudicate)
Application: under Article 270 TFEU, in which Mr De Nicola seeks, in particular, first, annulment of the decision of the Appeals Committee (‘the Appeals Committee’) of the European Investment Bank (EIB, or ‘the Bank’) of 23 October 2013 rejecting his internal appeal seeking the annulment and amendment of his appraisal report for 2012, second, annulment of his appraisal report for 2012, third, annulment of all ‘connected, consequent and prior acts’, fourth, an order that the EIB pay compensation for the material and non-material harm which he considers he has suffered, and, fifth, in the alternative, a finding that he suffered harassment.
Held: The decision of the Appeals Committee of the European Investment Bank of 23 October 2013 is annulled. There is no need to adjudicate on the pleas seeking annulment of the appraisal report relating to 2012 and all connected, consequent and prior acts. The remainder of the action is dismissed. The European Investment Bank is to bear its own costs and is ordered to pay the costs incurred by Mr De Nicola.
Summary
1. Officials — Staff of the European Investment Bank — Reports procedure — Appraisal report — Challenge before the Appeals Committee of the EIB — Scope of the Appeals Committee’s review
(Staff Regulations of the European Investment Bank, Art. 22)
2. Actions brought by officials — Staff of the European Investment Bank — Action directed against a decision of the Appeals Committee concerning appraisal — Judicial review — Scope
(Staff Regulations of the European Investment Bank, Art. 22)
3. Actions brought by officials — Staff of the European Investment Bank — Judgment annulling a measure — Effects — Obligation to implement — Judgment annulling a decision of the Appeals Committee on an appraisal report — Obligation for the EIB to re-submit to the Committee the challenge brought by the person who lodged the internal appeal
(Art. 266 TFEU)
1. The fact that the Appeals Committee established by the European Investment Bank in connection with appraisal of its staff is able to strike out any statement contained in an appraisal report on a staff member implies that that committee has power to reassess each of those statements on its merits before striking it out. This power, therefore, clearly extends beyond reviewing the legality of and setting aside the operative part of an act, in that it encompasses the possibility of reversing the grounds which supported the adoption of the operative part, whatever their place in the overall rationale of the act.
This full power of review on the part of the Appeals Committee is confirmed by the power expressly given to it to modify the final assessment of merits relating to the overall appraisal of the performance of the person bringing the internal appeal. Alteration of the final assessment of the merits of the individual concerned implies that the Committee carries out a detailed review of all of the assessments of merit contained in the report in issue, considering whether they involve any errors of assessment, fact or law, and also that it may, where appropriate, substitute itself for the evaluator and carry out a fresh assessment of those merits.
(see paras 37, 38)
See:
Judgments of 27 April 2012 in De Nicola v EIB, T‑37/10 P, EU:T:2012:205, para. 41, and 16 September 2013 in De Nicola v EIB, T‑618/11 P, EU:T:2013:479, para. 37
2. The Appeals Committee established by the European Investment Bank in connection with appraisal of its staff has full power of review authorising it to substitute its assessments for those contained in an appraisal report challenged by the EIB staff member concerned, a power on which the Civil Service Tribunal, on the other hand, cannot rely. For the Appeals Committee wrongly to forego such a full review is tantamount to depriving the staff member concerned of a review procedure provided for in the EIB’s internal rules and thus adversely affects him, so that it must be amenable to review by the court of first instance.
(see para. 41)
See:
Judgment of 27 April 2012 in De Nicola v EIB, T‑37/10 P, EU:T:2012:205, para. 49
3. The annulment by the Union judicature of a decision of the Appeals Committee established by the European Investment Bank in connection with appraisal of its staff is capable, on an administrative level, of procuring an advantage for the person who brought an internal appeal before that committee, and of requiring the EIB to re-submit to the Committee the challenge brought by the appellant, in order for the Committee to issue a correct decision, exercising its powers to the full, on the appraisal report in question.
(see para. 54)
See:
Order of 21 September 2015 in De Nicola v EIB, T‑848/14 P, EU:T:2015:719, para. 40