JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
10 July 2024 (*)
(Civil service – EIB staff – Fixed-term contract – No conversion into contract of indefinite duration – Conversion of contracts – Criteria – Manifest error of assessment – Prior notice – Conflict of interest – Action for annulment and for damages)
In Case T‑624/22,
RS, represented by B. Maréchal, lawyer,
applicant,
v
European Investment Bank (EIB), represented by G. Faedo, A. García Sánchez and K. Carr, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak and T. Pynnä (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By his action based on Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicant, RS, seeks, first, annulment of the decision of the European Investment Bank (EIB) of 20 December 2021 not to convert his employment contract into a contract of indefinite duration (‘the decision not to convert the contract’) and, second, compensation for the harm which he claims to have suffered as a result. He also seeks annulment of the letter of the EIB of 20 December 2021 confirming the decision not to convert the contract.
I. Background to the dispute
2 On 1 January 2016, the applicant was hired by the EIB under a fixed-term contract for a four-year period.
3 On 16 November 2018, the applicant’s contract was extended by two years until 31 December 2021. The letter confirming the contract extension specified that the contract would expire automatically at the end of the fixed extension period and would not give rise to any right to employment of indefinite duration.
4 On 15 November 2019, the applicant attended the medical service of the EIB in order to receive a flu vaccine.
5 On the same day, the nurse who administered the flu vaccine to the applicant contacted the Directorate-General (DG) for Personnel (‘the Personnel Directorate’) at the EIB to report orally an incident during the applicant’s appointment (‘the incident of 15 November 2019’), which she described subsequently in an email of 18 November 2019 as follows:
‘… Consequently, I informed him of the vaccine and gave him an injection. His ability to communicate in English was poor, however, he started telling that he works with shoes and measurements of feet in the bank. He asked me to take [off] my shoes and explained that it would only take a minute and that he had [five] follow-up questions related to my shoe habits. He gave me the impression that such examination was something that all colleagues should do.
He wanted to take [off] my shoe to see if I had any work[-]related pains. I took the shoes [off] and he took my socks [off]. He examined my feet for a minute.
Then he insisted that I should lay down with my eyes closed. I refused and told him that I was busy and I had to return to my work. When I thought he was finished he took my left foot up again and it seems like he was turned on and it was a very unpleasant experience.
Then he repeatedly asked for my private phone number, and I told him that he could find my contact details on the portal, and he could send me an email if he needed to contact me again. He did not want to send an email and he told me that he would re-visit Medical [Centre] next week when there were no patients because he wanted to have more time to examine my feet. And it would be better if I was laying down. I agreed so he would get out of my office.’
6 Also on 15 November 2019, the Personnel Directorate invited the applicant to a meeting relating to ‘a serious incident that took place this morning in the Bank’s Occupational Health Service’.
7 On 18 November 2019, a meeting was held between the Personnel Directorate and the applicant regarding the incident of 15 November 2019. The applicant brought to the meeting a document concerning a study he claimed to be conducting on shoe production.
8 By email of 20 November 2019, the applicant requested that another meeting be held and asked to be given the opportunity to apologise to the nurse for anything that could have been misunderstood or understood differently from what he had intended. He also stated that he needed help, which is why he asked to see a counsellor and an in-house psychologist at the EIB. The requested meeting was held on 5 December 2019.
9 On 21 November 2019, the Personnel Directorate asked the EIB Fraud Investigations Division (‘the Investigations Division’) for assistance in establishing the facts of the incident of 15 November 2019 and in determining whether other persons may have been subject to the same behaviour on the part of the applicant.
10 By letter of 11 December 2019, the applicant was informed that an investigation had been opened and was invited to an interview by the Investigations Division, which was held on 13 December 2019. That letter stated that the allegations to be verified would be discussed with the applicant during the interview.
11 On 17 February 2020, the Investigations Division submitted its report (‘the Investigations Division’s report’) to the Personnel Directorate. The report contained a summary of the interviews conducted, observations and analysis of the relevant facts.
12 By note of 23 September 2020 sent to the President of the EIB, the Director-General of the Personnel Directorate recommended that an ex officio Dignity at Work procedure regarding the applicant’s behaviour be opened in accordance with the internal rules entitled ‘Dignity at Work Policy’ (‘the Dignity at Work policy’) adopted by the EIB on 8 May 2019. The President of the EIB approved that recommendation on 27 September 2020.
13 A few days after that decision, the nurse who had reported the incident of 15 November 2019, and had, in the meantime, left her position, took up a position again at the EIB. Subsequently, an assessment of whether there was a conflict of interest on the part of the director of the Personnel Directorate, where that nurse was now working, was opened.
14 On 30 November 2020, the director of the Personnel Directorate requested that the President of the EIB assign the case regarding the incident of 15 November 2019 to another service, recommending the Deputy Secretary-General of the EIB. The President of the EIB accepted that request on 2 December 2020 and confirmed that an ex officio Dignity at Work procedure had been opened.
15 By letter of 22 March 2021, the applicant was informed that an ex officio Dignity at Work procedure had been opened against him in respect of allegations concerning the incident of 15 November 2019. By that letter, a note, also dated 22 March 2021, was sent to the applicant, regarding the opening of the procedure against him, to which the email of the nurse of 18 November 2019, the documents submitted by the applicant on 18 November 2019 and the Investigations Division’s report were attached.
16 On 26 April 2021, the applicant submitted written observations regarding the ex officio Dignity at Work procedure.
17 On 6 May 2021, the applicant submitted a request for administrative review of the decision to open the ex officio Dignity at Work procedure. That request was rejected by the EIB on 26 May 2021.
18 By letter of 12 May 2021, the applicant asked the EIB to adopt a formal decision regarding the conversion of his fixed-term contract into a contract of indefinite duration.
19 By email of 1 June 2021, the applicant was informed that his request had been transferred to the director of the Personnel Directorate.
20 On 28 June 2021, the applicant was heard by the ‘Dignity at Work’ panel.
21 By letter of 2 August 2021, the draft final report of the ‘Dignity at Work’ panel was sent to the applicant. That report states that, given the doubts as to whether sexual harassment took place, the panel is unable to find that such harassment did take place and decides unanimously that ‘no harassment could be proven’.
22 On 10 August 2021, the applicant repeated his request for the adoption of a decision regarding the conversion of his fixed-term contract into a contract of indefinite duration.
23 On 23 August 2021, the applicant submitted his comments on the draft report.
24 By email of 13 September 2021, in answer to the applicant’s letters of 12 May and 10 August 2021, the applicant was informed that the decision whether his fixed-term contract would be converted into a contract of indefinite duration had not been taken. The reasons why the applicant could not be informed of the potential conversion of his contract six months before it ended, connected to the ex officio Dignity at Work procedure, were communicated to him.
25 By letter of 15 November 2021, the Deputy Secretary-General of the EIB informed the applicant that, after having heard the parties and carried out the necessary inquiries, the ‘Dignity at Work’ panel had found that a situation of sexual harassment could not be established. However, he informed the applicant that the President of the EIB had asked that panel to clarify a number of points in its draft report, in particular concerning the definition and interpretation of the concept of sexual harassment that had been applied.
26 By email of 22 November 2021, the applicant was informed that the ‘Dignity at Work’ panel was to communicate its revised report on 27 December 2021 and that he would then be able to submit observations.
27 On 23 November 2021, the applicant, together with a staff representative, met with the Director-General of Corporate Services and a staff member from human resources. During that meeting, as attested by an email of the same day addressed to him, the applicant was informed that the EIB would not convert his fixed-term contract into a contract of indefinite duration and that, consequently, his contractual relationship with the EIB would expire at the end of December 2021. The applicant was also informed that a request for administrative review of that decision could be submitted.
28 By letter of 26 November 2021, the Director-General of Corporate Services and the Secretary-General of the EIB confirmed the content of the discussion which took place during the meeting of 23 November 2021. It was brought to the applicant’s attention that, irrespective of the outcome of the Dignity at Work procedure, the information in the EIB’s possession regarding his behaviour did not make it possible to consider converting his fixed-term contract into a contract of indefinite duration. The applicant was invited to submit his observations by 10 December 2021 at the latest.
29 On 10 December 2021, the applicant submitted his observations on the letter of 26 November 2021.
30 By letter of 20 December 2021, Director-General of Corporate Services and the Secretary-General of the EIB responded to the applicant’s observations on the letter of 26 November 2021, declaring that his contract would not be converted into a contract of indefinite duration and that he would receive an official decision from the Personnel Directorate confirming the expiry of his contract.
31 By letter of the same day, the EIB confirmed to the applicant that his contract would expire on 31 December 2021 with no possibility of extension.
32 On 31 December 2021, the applicant submitted a request for administrative review of the decision not to convert the contract.
33 By letter of 3 March 2022, the EIB sent the applicant the final report of the ‘Dignity at Work’ panel. The content and findings of that report had not been amended from those of the draft version, the President of the EIB’s request for clarification made to the ‘Dignity at Work’ panel (see paragraph 25 above) notwithstanding.
34 By decision of 29 June 2022, the EIB rejected the request for administrative review of the decision not to convert the contract (‘the decision rejecting the request for administrative review’).
II. Form of order sought
35 The applicant claims, in essence, that the Court should:
– annul the decision not to convert the contract and the letter confirming that decision;
– annul the decision rejecting the request for administrative review;
– in the alternative, alter the decision not to convert the contract, the letter confirming that decision and the decision rejecting the request for administrative review;
– order the EIB to compensate him for material and non-material damage, assessed at EUR 193 882.98 and EUR 40 000, respectively;
– order the EIB to pay his costs, assessed on a provisional basis at EUR 20 000;
– order the EIB to pay the legal fees, assessed on a provisional basis at EUR 15 000.
36 The EIB contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
III. Law
A. The subject matter of the dispute and the admissibility of certain heads of claim
37 The applicant seeks annulment of the decision not to convert the contract, the letter confirming that decision and the decision rejecting the request for administrative review. In the alternative, he seeks alteration of those acts.
1. The head of claim seeking annulment of the letter confirming the decision not to convert the contract
38 It should be borne in mind that Article 41 of the Staff Regulations of the EIB provides that ‘any member of staff may submit to the President a request for review of an act adversely affecting him/her’ and Article 41a of those regulations provides that the Court has ‘jurisdiction in all disputes between the Bank and the members of staff regarding the legality of an act adversely affecting the person concerned’.
39 It is settled case-law that a purely confirmatory measure, such as an act which contains no new factors as compared with a previous measure adversely affecting the applicant, cannot be described as an act adversely affecting the applicant (see, to that effect, judgment of 25 June 2020, ZS v EIB, T‑659/18, not published, EU:T:2020:281, paragraph 31).
40 In the present case, the letter confirming the decision not to convert the contract does not contain any new factors as compared with that decision. Moreover, it states that its objective is to confirm the decision not to convert the contract.
41 It follows that the letter confirming the decision not to convert the contract is a purely confirmatory measure and that the head of claim seeking its annulment is inadmissible.
2. The head of claim seeking annulment of the decision rejecting the request for administrative review
42 The EIB submits that the head of claim seeking annulment of the decision rejecting the request for administrative review is inadmissible, as it is not directed against the act adversely affecting the applicant.
43 The applicant responds that the decision rejecting the request for administrative review cannot be dissociated from its context, which includes the decisions it confirms.
44 It should be borne in mind that it is settled case-law, regarding, inter alia, the Staff Regulations of Officials of the European Union, that claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was lodged where those claims in themselves lack independent substance (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 11 October 2023, QT v EIB, T‑529/22, EU:T:2023:618, paragraph 13 and the case-law cited).
45 Administrative appeals before the President of the EIB, governed by Article 41 of the Staff Regulations of the EIB pursue the same aim as the mandatory pre-litigation procedure established by Article 90 of the Staff Regulations of Officials of the European Union, in that they give the EIB the possibility of reversing the contested measure, and the staff member concerned the option of accepting the reasons on which the contested measure is based and, where appropriate, not initiating proceedings (see judgments of 16 December 2004, De Nicola v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, paragraph 55 and the case-law cited, and of 7 September 2022, KL v EIB, T‑751/20, not published, EU:T:2022:514, paragraph 35 and the case-law cited).
46 In the present case, the decision rejecting the request for administrative review confirms the decision not to convert the contract and lacks independent substance.
47 Consequently, the claim for annulment against the decision rejecting the request for administrative review must be understood as being directed against the decision not to convert the contract. The lawfulness of that decision will be examined having regard to the grounds set out in the decision rejecting the request for administrative review (see, to that effect and by analogy, judgment of 15 December 2021, HB v EIB, T‑689/20, not published, EU:T:2021:891, paragraph 19).
3. The head of claim for alteration of the decision not to convert the contract, the letter confirming that decision and the decision rejecting the request for administrative review
48 The applicant asks the Court, in the alternative, to alter the decision not to convert the contract, the letter confirming that decision and the decision rejecting the request for administrative review.
49 It must be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure of the General Court, all applications must contain the subject matter of the dispute and a summary of the pleas in law relied on. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. Accordingly, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself, even if only in summary form (judgment of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 61).
50 In the present case, the application includes a claim for alteration of the decision not to convert the contract, the letter confirming that decision and the decision rejecting the request for administrative review. However, the precise objective of that request is not stated. The applicant does not explain in what way he claims that the acts referred to above should be altered. It is thus impossible for the Court to rule on that claim for alteration, which does not satisfy the requirements referred to in paragraph 49 above.
51 The head of claim for alteration of the decision not to convert the contract, the letter confirming that decision and the decision rejecting the request for administrative review is therefore inadmissible.
B. Substance
1. The claim for annulment
52 In support of his claim for annulment, the applicant raises three pleas in law, alleging, in essence:
– first, several irregularities vitiating the decision not to convert the contract and the procedure which led to its adoption;
– second, infringement of the rights of the defence, the right to confidentiality, data protection and private life, and of the presumption of innocence;
– third, breach of the principles of sound administration and protection of legitimate expectations.
(a) The first plea in law, alleging several irregularities vitiating the decision not to convert the contract and the procedure which led to its adoption
53 The first plea in law may be divided into three parts, alleging (i) several irregularities vitiating the decision not to convert the contract, (ii) infringement of the notice period for non-renewal of a contract provided for by Note to Staff No 810 of the EIB of 31 January 2020 on ‘Guiding principles and rules on contractual extensions for EIB Staff Members and Graduates, and for contractual conversions and non-renewals for EIB Staff Members’ (‘Note to Staff No 810’) and (iii) conflict of interest.
(1) The first part of the plea, alleging irregularities vitiating the decision not to convert the contract
54 By the first complaint of the first part of the first plea, the applicant claims that neither the Investigations Division nor the ‘Dignity at Work’ panel made a finding of misconduct on his part. The decision not to convert the contract does not take account of all the information and evidence or of the fact that the accusations against him were rejected. The decision not to convert the contract does not take account of the consent of the persons involved and does not specify why his behaviour, relating to his personal interests, is unacceptable.
55 As a preliminary point, it should be noted that a member of the temporary staff with a fixed-term contract does not, in principle, have any right to the renewal of his or her contract, such renewal being merely a possibility, subject to the condition that it is in the interests of the service (judgments of 6 February 2003, Pyres v Commission, T‑7/01, EU:T:2003:27, paragraph 64, and of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 48). Thus, the duration of the employment relationship between an institution and a member of the temporary staff engaged for a fixed term is, specifically, governed by the terms laid down in the contract concluded between the parties. Furthermore, it is also settled case-law that the administration has a broad discretion in matters of contract renewal (judgments of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraph 46, and of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 49). That case-law appears to be all the more relevant where, as in the present case, a fixed-term contract is replaced by a contract of indefinite duration, which creates a more stable relationship without any time limit between the institution and the staff member concerned (see, to that effect, judgments of 26 January 2022, MN v Europol, T‑586/20, not published, EU:T:2022:24, paragraph 34, and of 12 October 2022, Van Walle v ECDC, T‑83/21, not published, EU:T:2022:626, paragraph 32).
56 Although the administration has a wide discretion, the Court, in an action for annulment of an act adopted in the exercise of such discretion, nevertheless undertakes a review of legality, which has a number of aspects. In the case of an application for annulment of a decision not to renew the contract of a temporary member of staff, review by the Courts of the European Union must be limited to verifying that there has been no error of law, manifest error of assessment or misuse of powers and that there has been no infringement of the administration’s duty to have regard for the welfare of its officials when it is called upon to rule on the renewal of a contract between it and one of its members of staff. Furthermore, the Court reviews whether the administration committed material inaccuracies (judgments of 12 October 2022, Van Walle v ECDC, T‑83/21, not published, EU:T:2022:626, paragraph 33, and of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 50).
57 That case-law can be applied by analogy to the present dispute, which concerns the non-conversion of a fixed-term contract into a contract of indefinite duration governed by the rules applicable to the EIB.
58 In the present case, the decision not to convert the contract explains that the Director-General of Corporate Services and the Secretary-General of the EIB had been informed that the Investigations Division had established that the applicant had asked several female colleagues to examine or touch their feet, and he had acknowledged having made those requests, while asserting that the requests had been made in the context of a private study. It specifies that the Investigations Division concluded that it was difficult to accept the credibility of that study. The decision not to convert the contract stresses that, having regard to the applicant’s inappropriate behaviour, the EIB has lost confidence in him. It adds that the findings of the ‘Dignity at Work’ panel as to whether the applicant’s behaviour constitutes sexual harassment are irrelevant in that respect.
59 As observed in the decision rejecting the request for administrative review, it is apparent from the Investigations Division’s report that, aside from the nurse who reported the incident of 15 November 2019, two other women were approached by the applicant. The applicant himself gave the Investigations Division the names of those persons. The first person stated that the applicant had spoken to her of the study he was conducting regarding shoes and had asked her questions in that context, but had not asked to touch or examine her feet. The second person explained that the applicant had asked her to walk on a treadmill and observed her feet, but had not asked her to take off her shoes or examine her bare feet.
60 It is also apparent from the Investigations Division’s report that the applicant declared that he had asked the nurse, during the incident of 15 November 2019, to take off her boots and had asked whether he could examine her Achilles tendon. With the nurse’s consent, he states that he touched both her feet on the Achilles tendon.
61 The applicant does not dispute that he made those statements concerning the incident of 15 November 2019 and does not deny directly the events set out by the two other colleagues. While, in his observations on the draft report of the ‘Dignity at Work’ panel of 23 August 2021, the applicant explains that he did in fact ‘pinch’ the nurse’s Achilles tendon, which, in his view, has a different connotation from touching or examining, the existence of physical contact is not disputed.
62 The decision rejecting the request for administrative review also recalls that the Investigations Division’s report stresses that the physical contact during the incident of 15 November 2019 with the bare feet of a female member of staff runs the risk of making that member of staff uncomfortable and that, objectively, it is foreseeable that those actions could cause distress to that member of staff.
63 The decision rejecting the request for administrative review stresses that the report of the ‘Dignity at Work’ panel finds that sexual harassment has not been established but that, irrespective of that issue, the behaviour, inter alia, of the applicant did not correspond to the professional standards that his position required. That report adds that the applicant’s behaviour may be described only as a lack of seriousness.
64 It is apparent from that statement of the facts that it is appropriate to reject the applicant’s argument that the presentation of the facts – that is, that he asked several female colleagues to examine or touch their feet, and acknowledged having done so – in the decision not to convert the contract is biased and incorrect, because the allegations made against him were rejected as unfounded or insufficiently founded.
65 It is also apparent from all the information in the case file, as repeated in the decision not to convert the contract and the decision rejecting the request for administrative review, that the lawfulness of the decision not to convert the contract is not vitiated by material inaccuracies and that the EIB took into consideration the relevant evidence.
66 In addition, the applicant’s argument that the ‘Dignity at Work’ panel did not find that he had behaved inappropriately and the accusations made against him were rejected is based on an inaccurate reading of that panel’s report. The finding of the report of the ‘Dignity at Work’ panel that ‘no harassment could be proven’ concerns the legal classification of the facts as sexual harassment. By contrast, the same panel considered that the applicant’s behaviour lacked seriousness and did not correspond to professional standards.
67 It follows that the first complaint must be rejected.
68 By his second complaint, the applicant submits that he meets all the conditions set out in Note to Staff No 810 for the conversion of a contract into a contract of indefinite duration. The conversion of his contract should have been decided on the basis of those criteria, not on the basis of defamatory accusations. He argues that he is an exemplary member of staff whose work was appreciated by colleagues and he had the support of his hierarchy. The discretionary power of the administrative authorities must not serve as an excuse for adopting unjustified decisions. The unfounded allegations against him cannot serve as a basis for what, in practice, is an indirect sanction due to an alleged loss of confidence in him.
69 In that connection, it should be borne in mind that Section III of Note to Staff No 810 sets out the conditions for eligibility for the conversion of fixed-term contracts into contracts of indefinite duration. That section provides that members of staff may be put forward for a contract conversion if they meet five cumulative conditions, including having the nationality of a Member State and a certain length of service.
70 In Section IV, Note to Staff No 810 sets out an indicative list of reasons justifying the non-renewal of a contract. Those reasons include ‘personal reasons’, such as ‘behaviour’ and ‘loss of confidence’. Unsatisfactory behaviour such as conflicts with other members of staff, and loss of confidence of management in a member of staff, such as plausible allegations of misconduct, are mentioned as reasons for non-renewal of a contract.
71 In that connection, it must be stated that, when an administrative authority introduces, by an internal directive, a special system intended to ensure transparency in the procedures for renewing or, as in the present case, converting contracts, the adoption of that system is tantamount to a voluntary curb on the institution’s discretion. According to settled case-law, a decision of an institution communicated to all its staff and setting out the applicable criteria and procedure as part of its discretion in that regard constitutes an internal directive which must, as such, be regarded as a rule of conduct which the administration imposes on itself and from which it may not depart without specifying the reasons for doing so, since otherwise the principle of equality of treatment would be infringed (see, to that effect, judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 51 and the case-law cited).
72 According to that case-law, Note to Staff No 810 must be regarded as such a rule of conduct.
73 In the present case, the decision not to convert the contract explains that, having regard to the facts set out in paragraph 59 above, which were considered to amount to inappropriate behaviour on the part of the applicant, the EIB had lost confidence in him.
74 It follows that, in order to decide not to convert the applicant’s contract into a contract of indefinite duration, the EIB applied the criteria ‘behaviour’ and ‘loss of confidence’.
75 Having regard to the facts set out in paragraphs 58 to 63 above, the applicant has been unable to show that the EIB committed a manifest error of assessment within the meaning of the case-law cited in paragraph 55 above when it found that his conduct was inappropriate and that it had lost confidence in him, and when it decided, on that basis, not to convert his contract into a contract of indefinite duration. It follows that, contrary to the applicant’s claims, the decision not to convert the contract cannot be regarded as an indirect sanction.
76 Moreover, contrary to the applicant’s claims, the decision not to convert the contract was not based on the findings of the ‘Dignity at Work’ panel, given that it is based on the established facts (see paragraphs 58 to 63 above), not on how those facts were classified in law by that panel.
77 In addition, the fact that the applicant met the conditions laid down in Section III of Note to Staff No 810 for the conversion of fixed-term contracts into contracts of indefinite duration, such as those relating to the nationality of a Member State, does not mean that his contract must be converted into a contract of indefinite duration. It is clear from the wording of that section and the use of the term ‘can’ in the first paragraph thereof (‘Staff Members can be proposed for conversion’) that the administration has discretion in that regard, as also recognised by the case-law cited in paragraph 55 above.
78 The EIB therefore did not fail to have regard to the criteria laid down in Note to Staff No 810 regarding the conversion and non-renewal of contracts and did not commit a manifest error of assessment.
79 Consequently, the second complaint and, as a result, the first part of the first plea must be rejected.
(2) The second part of the plea, alleging infringement of the notice period laid down in Note to Staff No 810 for non-renewal of a contract
80 The applicant refers to footnote 5 to Note to Staff No 810 and submits that the EIB should have informed him that his contract was not going to be converted six months before it expired, that is, 30 June 2021. However, he was not informed in good time that his contract was not going to be converted, despite many requests.
81 Footnote 5 to Note to Staff No 810 provides that, for contracts with a duration of 18 months or more, the legal minimum for informing the member of staff concerned of the extension, conversion or non-renewal of his or her contract is at least 6 months before its expiry. It also states that the EIB seeks to take a decision and inform the member of staff earlier than that legal minimum.
82 In the present case, it is common ground that the applicant was not informed that his contract was not going to be converted six months before it expired. He was informed on 23 November 2021, that is, less than two months before that contract expired. The EIB thus departed, in the applicant’s case, from the rule of conduct it imposed on itself by Note to Staff No 810.
83 However, according to the case-law cited in paragraph 71 above, an administrative authority may depart from rules of conduct it has imposed on itself while specifying the reasons for doing so.
84 In the present case, it is apparent from the file that, on 12 May and 10 August 2021, the applicant asked the EIB to adopt a formal decision regarding the conversion of his contract (see paragraphs 18 and 22 above). The EIB replied to the applicant on 13 September 2021, informing him that the decision regarding the conversion of his contract into a contract of indefinite duration had not been taken. The EIB explained to the applicant, first, that his contract would expire automatically on 31 December 2021 if it was not renewed; second, that it had a broad discretion regarding the conversion of contracts and, third, that it had not yet taken a decision regarding the conversion of his contract. The EIB also stated that the six-month period was an indicative period set out in a document that was not legally binding and explained why it was unable to take a decision regarding the conversion of the applicant’s contract. Those reasons were connected to the ex officio Dignity at Work procedure, which was still ongoing.
85 It follows that, first, the EIB set out the reasons why it departed from the rule of conduct that it had imposed on itself; second, those reasons were communicated to the applicant and, third, they are connected to the specific circumstances of the case such as to justify the delay in adopting a decision regarding the conversion of the applicant’s contract.
86 Consequently, the second part of the first plea must be rejected.
(3) The third part of the plea, alleging a conflict of interest
87 By the third part of the plea, the applicant submits that the procedures concerning the incident of 15 November 2019 were opened in breach of the rules on conflicts of interest.
88 First, according to the applicant, the Personnel Directorate decided to refer the allegations relating to the incident of 15 November 2019 to the Investigations Division, without submitting the issue of conflict of interest to the EIB Group Chief Compliance Officer for assessment, as required by Article 4.3 of the Dignity at Work policy.
89 Second, the Personnel Directorate kept, without disclosing, the information relating to the investigation to establish the facts for almost a year while, during the same period, it re-hired the nurse who reported the incident of 15 November 2019, whose employment contract had expired in the meantime. It is only after having renewed the employment contract of that nurse that the Personnel Directorate sent the file to the Deputy Secretary-General of the EIB. That situation led to an apparently intentional delay in the Dignity at Work investigation procedure.
90 The EIB contends that, first, Article 4.3 of the Dignity at Work policy is not applicable in the present case, as referral of a case to the Investigations Division may be completely independent from a Dignity at Work procedure. In addition, the issue of a potential conflict of interests was examined and it was concluded that there was no such conflict, as the nurse who reported the incident of 15 November 2019 no longer worked as a consultant for the Personnel Directorate.
91 Second, when the nurse who reported the incident of 15 November 2019 began working again for the Personnel Directorate with a new consultancy contract, the situation was reassessed and the director of the Personnel Directorate proposed that the procedure be handled by the Deputy Secretary-General. The delay complained of by the applicant is therefore connected to the thorough analysis of the issue of conflict of interest.
92 In accordance with Article 4.2 of the Dignity at Work policy, ‘if the Alleged Victim and/or the Accused Person are or were members of [the Personnel Directorate] when the alleged Harassment took place, as well as in any other situation where a conflict of interest arises, the [Personnel Directorate] … shall refer the matter to the EIB President …, who will assign the case to another [directorate]’. Article 4.3 of the Dignity at Work policy provides that ‘in case of doubt, the existence of a conflict of interest shall be assessed by the EIB Group Chief Compliance Officer … or, in case the latter service is conflicted, by the EIB President …’.
93 In the present case, in the note of 23 September 2020 addressed to the President of the EIB, by which the Director-General of the Personnel Directorate recommended that an ex officio Dignity at Work procedure be opened regarding the applicant’s conduct, the issue of a potential conflict of interest is analysed. That note states, first, that the nurse who reported the incident of 15 November 2019 no longer worked for the EIB; second, that she was not a member of staff of the Personnel Directorate, but a consultant and, third, that she had worked as a consultant for the EIB only for a period of less than three months. It was found, in that note of 23 September 2020, that the Director-General of the Personnel Directorate is not in a situation of conflict of interest.
94 By her note of 30 November 2020, the director of the Personnel Directorate requested that the President of the EIB assign the case regarding the incident of 15 November 2019 to another service, in accordance with Article 4.2 of the Dignity at Work policy. That note explains that the request was made in order to avoid any conflict of interest, apparent or otherwise, having regard to the fact that the nurse who reported the incident of 15 November 2019 had begun working again as a consultant for the Personnel Directorate.
95 It is apparent from that statement of the facts that the Personnel Directorate amended its position on whether there was a conflict of interest when the nurse who reported the incident of 15 November 2019 began working again at the EIB within that directorate.
96 It should also be noted that, in her note of 23 September 2020, the Director-General of the Personnel Directorate rules out the possibility of a conflict of interest on the basis of an incorrect interpretation of the Dignity at Work policy, particularly by referring to the fact that the nurse who reported the incident of 15 November 2019 was not a member of staff at the Personnel Directorate, but a consultant. However, in her note of 30 November 2020, the director of the Personnel Directorate asked the President of the EIB to assign the case to another service, as the nurse who reported the incident of 15 November 2019 had begun work again at the EIB, more specifically, at the Personnel Directorate as a consultant.
97 It is apparent that the concept of ‘member of staff’ was given conflicting interpretations by the director of the Personnel Directorate. In addition, as the applicant is correct to claim, Article 4.3 of the Dignity at Work policy provides that, in case of doubt, the existence of a conflict of interest must be assessed by the EIB Group Chief Compliance Officer or, if that service is conflicted, by the President of the EIB.
98 It follows that none of the three reasons given by the Director-General of the Personnel Directorate in her note of 23 September 2020, set out in paragraph 93 above, excludes the possibility of a conflict of interest within the meaning of Article 4 of the Dignity at Work policy. Regarding the first reason, that is, that the nurse who reported the incident of 15 November 2019 no longer worked for the EIB, the Court notes, in the light of the wording of Article 4.2 of the Dignity at Work policy recalled in paragraph 92 above, that a conflict of interest can exist even if the nurse was no longer working for the EIB at the time of the note of 23 September 2020, as such an employment relationship existed at the time of the reported events. Regarding the second reason, that is, that the nurse was not an EIB member of staff at the time when the reported events took place, but rather had ‘consultant’ status, it is apparent from the foregoing that, in the present case, this should have given rise to uncertainty on the part of the Director-General of the Personnel Directorate warranting the examination of the existence of a conflict of interest by one of the persons referred to in Article 4.3 of the Dignity at Work policy, recalled in paragraph 92 above. Last, regarding the third reason, that is, that the nurse had worked for the EIB only for a period of less than three months, it is irrelevant in the light of the wording of Article 4.2 referred to above.
99 It is therefore appropriate to find that the assessment of a conflict of interest by the Director-General of the Personnel Directorate does not comply with Article 4 of the Dignity at Work policy. It cannot be ruled out that, if an assessment of a conflict of interest had been carried out on the basis of the relevant criteria, the case would have been assigned earlier to another directorate, in accordance with Article 4.2 of that policy.
100 However, that procedural irregularity does not concern the decision not to convert the contract, but rather the opening of an ex officio Dignity at Work procedure concerning the applicant’s behaviour. A procedural irregularity such as this may lead to the annulment of the decision not to convert the contract only if it is shown that that irregularity could have had an influence on the content of the decision. (see, to that effect, judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 62 and the case-law cited).
101 Having regard to the circumstances of the case, that is, the fact that, first, the ex officio Dignity at Work procedure is distinct from that regarding the conversion of the applicant’s contract; second, that different services were involved in those distinct procedures; third, that the Director-General of the Personnel Directorate merely requested that that procedure be opened and herself asked to be replaced a few weeks later; fourth, the President of the EIB confirmed that that procedure had been opened at the same time as he assigned the case to another service, that is, on 2 December 2020; and, fifth, the report concerning the applicant’s behaviour was drafted by a panel made up of three persons who were not agents in service, in accordance with Article 26.3 of the Dignity at Work policy, the Court considers that the irregularity vitiating the opening of the ex officio Dignity at Work procedure could not have had an influence on the content of the decision not to convert the contract.
102 In addition, the applicant has not submitted any arguments to that effect. His allegation that there was an apparently intentional delay in the Dignity at Work investigation procedure is not supported by the case file and, in any event, has no connection to the content of the decision not to convert the contract.
103 Therefore, the third part of the first plea and, with it, the plea in its entirety must be rejected.
(b) The second plea in law, alleging infringement of the rights of the defence, the right to confidentiality, data protection and private life, and of the presumption of innocence
104 The applicant’s second plea in law can be divided into two parts, alleging, first, breach of the right to data protection, confidentiality and private life and, second, breach of the rights of the defence and of the presumption of innocence.
(1) The first part of the plea, alleging breach of the right to data protection, confidentiality and private life
105 By the first complaint of the first part of his second plea, the applicant claims that the rules on data protection laid down by Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39) were infringed by the reference, in the context of the procedure regarding the conversion of his contract, to ‘void and malicious’ accusations made in the context of other procedures.
106 The EIB maintains that that part is inadmissible, as it does not meet the requirements of Article 76(d) and (e) of the Rules of Procedure.
107 In that regard, the Court states that the applicant does not explain which provisions of Regulation 2018/1725 have, according to him, been infringed. Failing any clear and intelligible reference to the allegedly infringed rules of law, as required by the case-law cited in paragraph 49 above, that part does not meet the requirements of Article 76(d) and (e) of the Rules of Procedure and it is impossible for the Court to rule on that argument.
108 The first complaint of the first part of the second plea is therefore inadmissible.
109 By his second complaint, the applicant argues that the reference, in the context of the procedure regarding the conversion of his contract, to ‘void and malicious’ accusations made in the context of the Dignity at Work procedure is in breach of, first, the principle of confidentiality as enshrined in Article 8.1 of the Dignity at Work policy and, second, his right to private life, which protects his personal interests and hobbies. The Personnel Directorate also unfairly shared details with his hierarchy of the allegations against him.
110 Article 8.1 of the Dignity at Work policy provides that ‘any Person working for the EIB Group who, in any manner whatsoever, becomes aware of, or involved in the Procedures under the Policy, is obliged to observe the strictest confidentiality regarding all aspects of the procedure, including the fact of its existence, the persons involved and the grounds on which the procedure was initiated and its outcome[; ] the obligation of confidentiality does not apply to the Alleged Victim and the Accused Person with regard to the existence of the Formal Procedure, which they may disclose to their own managers, and to the content of the Final Decision …’.
111 Article 8.3 of the Dignity at Work policy adds that ‘any unjustified breach of confidentiality may lead to the initiation of the Disciplinary Procedure’.
112 It is clear that the applicant’s first argument is based on an incorrect interpretation of the confidentiality system set up by the Dignity at Work policy.
113 A breach of the rules on confidentiality – assuming that it is established – does not constitute a ground for annulment of a decision concerning the conversion of a contract of an EIB member of staff but, at most, if such breach is unjustified, leads to the opening of a disciplinary procedure. That approach, moreover, is in line with the case-law cited in paragraph 100 above.
114 The applicant’s first argument must therefore be rejected.
115 In addition, as far as the alleged breach of the right to respect for private life is concerned, enshrined, inter alia, in Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which results from the disclosure of confidential or personal data, the Court observes that the applicant raises that argument with no further explanation.
116 The second argument is therefore inadmissible and must be rejected.
117 It follows that the second complaint must be rejected, as, therefore, must the first part of the second plea in its entirety.
(2) The second part of the plea, alleging breach of the rights of the defence and the presumption of innocence
118 By the first complaint of the second part of his second plea, the applicant submits that his rights of defence and right to be heard have been breached owing to the fact that, first, he did not receive the Investigations Division’s report before the ex officio Dignity at Work procedure was opened; second, that, due to the conflict of interest, his case was not examined impartially by an independent authority and, third, he was unable duly to present his arguments. The decision not to convert the contract fails to take account of all the facts and evidence. The applicant adds that he was never heard regarding the complaints made relating to the conversion of his contract and that he did not have access to his file.
119 In that regard, it must be borne in mind that it is settled case-law that observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the procedure in question (see, to that effect, judgment of 23 October 1974, Transocean Marine Paint Association v Commission, 17/74, EU:C:1974:106, paragraph 15). The rights of the defence enshrined in Article 41 of the Charter include the procedural right of every person, provided for in paragraph 2(a) of that article, to be heard before any individual measure which would adversely affect him or her is taken (judgment of 2 February 2022, LU v EIB, T‑536/20, not published, EU:T:2022:40, paragraph 54).
120 The Court of Justice has previously ruled, in a dispute relating to harassment, that the Investigation Panel, before forwarding its recommendations to the President of the EIB, and, in any event, the latter, before adopting a decision that would adversely affect an applicant, were required to respect that applicant’s right to be heard as a complainant (judgment of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 56). The same principle applies to the person subject to an ex officio Dignity at Work procedure at the EIB.
121 In the present case, it is apparent from the evidence in the file that the applicant was informed and had the opportunity to be heard and submit his observations several times, both in the context of the procedures concerning the incident of 15 November 2019 and in the context of the procedure resulting in the non-conversion of his contract (see paragraphs 7, 8, 10, 15, 16, 20, 21, 23, 25, 27, 28 and 29 above).
122 In addition, the applicant does not explain, in the context of his arguments alleging that he did not have access to his file, to which procedure he refers and what type of information was not communicated to him in good time. In any event, the letter of 22 March 2021, also communicated a note to the applicant, also dated 22 March 2021, regarding the opening of the ex officio Dignity at Work procedure against him, with the following annexes: the email of the nurse of 18 November 2019, the documents submitted by the applicant on 18 November 2019 and the Investigations Division’s report (see paragraph 15 above), while the letter of 2 August 2021 communicated to him the draft final report of the ‘Dignity at Work’ panel (see paragraph 21 above).
123 It follows that the applicant’s arguments that he was not duly informed of the conduct of the procedures, did not have access to his file and was not able to argue his point of view must be rejected.
124 Regarding, more specifically, the applicant’s argument that he did not receive the Investigations Division’s report before the ex officio Dignity at Work procedure was opened, it is sufficient to note that, first, the applicant does not establish how his rights of defence or other relevant applicable rules were infringed and, second, he does not explain how that report is connected to the adoption of the act adversely affecting him in the present case, that is, the decision not to convert the contract, within the meaning of the case-law cited in paragraph 119 above.
125 Regarding the applicant’s argument alleging that the authority which handled his case was not impartial, it is clear that the applicant does not explain in what that alleged lack of impartiality consisted or how it materialised in his case. That argument is therefore inadmissible under the provisions and the case-law cited in paragraph 49 above.
126 It follows that the first complaint must be rejected.
127 By his second complaint, the applicant argues breach of the presumption of innocence, on the ground that the decision not to convert the contract is based on allegations that are not supported by evidence.
128 In the present case, without there being any need to rule whether the principle of the presumption of innocence is applicable to the present case, it must be borne in mind that, as stated in paragraphs 58 to 65 above, the lawfulness of the decision not to convert the contract is not vitiated by material inaccuracies and that the EIB took into consideration the relevant items of evidence. In addition, the greater part of the evidence taken into consideration is based on the statements of the applicant himself.
129 Moreover, the procedure for converting the applicant’s contract has a different objective and purpose from those concerning the incident of 15 November 2019. Accordingly, the EIB was able, without pre-empting the guilt or liability of the applicant, to refer in the decision not to convert the contract to particulars regarding the applicant’s behaviour and loss of confidence in him.
130 The second complaint must therefore be rejected.
131 It follows that the second part of the second plea must be rejected, as must, therefore, the second plea in its entirety.
(c) The third plea in law, alleging breach of the principle of sound administration and of the applicant’s legitimate expectations
132 The third plea may be divided into two parts, alleging, first, breach of the principle of sound administration and, second, breach of the applicant’s legitimate expectations.
(1) The first part of the plea, alleging breach of the principle of sound administration
133 The applicant relies on Article 41 of the Charter and submits that, first, the EIB’s request of 26 November 2021 inviting him to submit observations regarding the conversion of his employment contract and the delay it caused in adopting a decision concerning the conversion of his contract and, second, the breach of his right to be heard and to have access to his file constitute a breach of the principle of sound administration.
134 Article 41(1) of the Charter provides that ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’. Article 41(2) of the Charter provides that that right includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting legitimate expectations as regards confidentiality and professional and business secrecy, and the obligation on the part of the administration to give reasons for its decisions.
135 According to case-law, the administration is required, under the principle of sound administration enshrined in Article 41 of the Charter, to examine with care and impartiality all the relevant aspects of the individual case brought before it and to gather all the factual and legal information necessary to exercise its discretion and to ensure the proper conduct and effectiveness of the procedures which it sets in motion (see, to that effect, judgments of 4 February 1987, Maurissen v Court of Auditors, 417/85, EU:C:1987:61, paragraph 12, and of 5 June 2019, Bernaldo de Quirós v Commission, T‑273/18, not published, EU:T:2019:371, paragraph 58 and the case-law cited).
136 In the present case, the applicant states that there were delays in adopting the decision regarding the conversion of his contract. The Court has already found that the delay in adopting that decision is justified (see paragraph 85 above) and does not therefore constitute a breach of the principle of sound administration.
137 Moreover, the applicant’s argument regarding the delay due to the fact that the administration invited him to lodge his observations before it took a final decision regarding the conversion of his contract cannot succeed. First, the delay caused was of a few days only. Second, an invitation to the person concerned to submit his or her observations before a decision adversely affecting him or her is adopted is an application, not a breach, of the principle of sound administration as regards the ‘right to be heard’.
138 As for the applicant’s allegations of breach of his right to be heard and right of access to the file, those allegations were rejected in paragraphs 122 and 123 above.
139 It follows that the first part of the third plea must be rejected.
(2) The second part of the plea, alleging breach of the applicant’s legitimate expectations
140 By the second part of his third plea, the applicant submits that, following ongoing communication with his hierarchy, he had a legitimate expectation that his contract would be converted.
141 As a preliminary point, it must be borne in mind that the principle of the protection of legitimate expectations is among the fundamental principles of the European Union. Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (judgments of 6 July 1999, Forvass v Commission, T‑203/97, EU:T:1999:135, paragraph 70, and of 28 September 2022, Grieger v Commission, T‑517/21, not published, EU:T:2022:588, paragraph 81).
142 In the present case, the applicant does no more than set out general allegations regarding ongoing communication with his hierarchy which gave rise to legitimate expectations on his part.
143 However, the applicant does not produce any evidence in that respect. The Court notes on that point that the emails of 11 January 2021 refer to the intention of two EIB members of staff to request information concerning the potential conversion of the applicant’s contract, and give no assurances in that respect. The email of 3 January 2022 states that the applicant’s department had proposed to convert his contract. Nevertheless, that email is dated a few days after the applicant’s contract expired, so that it cannot give rise to expectations on his part and, moreover, it gives no assurances as to the conversion of his contract, but merely that a proposal to convert his contract was made orally to his hierarchy during a meeting.
144 It follows that the first condition necessary for claiming protection of legitimate expectations is not met. Consequently, the second part of the third plea and, therefore, the third plea in its entirety must be rejected.
145 Consequently, the claim for annulment must be rejected in its entirety.
146 In addition, regarding the head of claim submitted in the alternative for alteration of the decision not to convert the contract, the letter confirming that decision and the decision rejecting the request for administrative review found to be inadmissible (see paragraph 47 above), in the event that it should be interpreted as seeking, on the basis of the same arguments rejected above, that the Court convert the applicant’s fixed-term contract into a contract of indefinite duration, it is, in any event, appropriate to reject it on the same grounds as those set out above regarding the claim for annulment made in respect of those same acts.
2. The claim for compensation
147 The applicant submits a series of heads of claim for compensation in respect of material and non-material harm (see paragraph 35 above).
148 It should be borne in mind that, in civil service issues, a claim for compensation for material and non-material damage must be rejected in so far as it is closely linked to the claim for annulment, which itself was dismissed as unfounded (judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 93; see, to that effect, judgments of 16 July 1981, Albini v Council and Commission, 33/80, EU:C:1981:186, paragraph 18, and of 21 May 2008, Belfass v Council, T‑495/04, EU:T:2008:160, paragraph 122).
149 As has been stated in paragraph 145 above, the claim for annulment must be rejected. In support of his claim for compensation for the harm which he claims to have suffered, the applicant does not rely on any illegalities other than those in support of his claims for annulment. That claim must therefore also be rejected, without there being any need to rule on the admissibility of certain heads of damage disputed by the EIB in its defence.
150 Accordingly, the action must be dismissed in its entirety.
IV. Costs
151 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.
152 Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the EIB.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders RS to pay the costs.
da Silva Passos | Półtorak | Pynnä |
Delivered in open court in Luxembourg on 10 July 2024.
V. Di Bucci | | S. Papasavvas |