JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

16 September 2013

Case T‑418/11 P

Carlo De Nicola

v

European Investment Bank (EIB)

(Appeal — Civil service — EIB staff — Sickness insurance — Refusal to reimburse medical expenses — Request to designate an independent doctor — Reasonable period — Rejection of a request to institute a procedure for amicable settlement — Claim for setting aside — Claim for reimbursement of medical expenses — Lis pendens)

Appeal:      against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 28 June 2011 in Case F‑49/10 De Nicola v EIB [2011] ECR, seeking the setting aside of that judgment.

Held:      The judgment of the Civil Service Tribunal (First Chamber) in Case F‑49/10 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 European Investment Bank (EIB) rejecting his request to designate a third doctor. The remainder of the appeal is dismissed. The EIB’s decision rejecting, on the ground of having been submitted out of time, Mr De Nicola’s request to designate a third doctor is annulled. Mr De Nicola and the EIB are ordered to bear their own costs relating to the proceedings before the Civil Service Tribunal and on appeal.

Summary

1.      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)

2.      Judicial proceedings — Objection of lis pendens — Same parties, subject-matter and submissions in two actions — Inadmissibility of the second action

1.      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 a 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, rather, 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. 29)

See:

C‑334/12 RX-II Arango Jaramillo and Others v EIB [2013] ECR-SC, paras 25 to 46

2.      An action brought subsequently to another which is between the same parties, is brought on the basis of the same submissions and seeks the annulment of the same legal measure must be dismissed as inadmissible on the ground of lis pendens, without there being any need for that objection to be laid down by an express legal rule. In that regard, a distinction drawn by an applicant between the different courts and on the basis of the fact that the respective contentious proceedings overlapped in time cannot be upheld since the subject-matter of the dispute remained substantively the same in all the proceedings.

(see para. 59)

See:

C‑138/03, C‑324/03 and C‑431/03 Italy v Commission [2005] ECR I‑10043, para. 64; 9 June 2011, C‑465/09 P to C‑470/09 P Diputación Foral de Vizcaya v Commission, not published in the ECR, para. 58

T‑37/10 P De Nicola v EIB [2012] ECR-SC, para. 12

F‑55/08 De Nicola v EIB [2009] ECR-SC I‑A‑1-469 and II‑A‑1-2529, paras 204 et seq.