11 June 2020 (*)

(Action for annulment and for damages — Civil service — EIB staff — Reform of the EIB remuneration and salary progression system — Remuneration simulation tool — Act not open to challenge — Purely confirmatory act — No new and substantial facts — Non-material harm — No causal link — Action in part inadmissible and in part manifestly lacking any foundation in law)

In Case T‑294/19,

Patrick Vanhoudt,

residing in Gonderange (Luxembourg), and the other appellants whose names are listed in the annex, (1) represented by A. Haines, Barrister,

applicants,

European Investment Bank (EIB),

represented by T. Gilliams, J. Klein and J. Krueck, acting as Agents, and P.E. Partsch and T. Evans, lawyers,

defendant,

application under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the decision of the EIB of 31 January 2019 by which the EIB confirmed the decision of the Conciliation Board, which found that the conciliation procedure relating to the applicants’ requests to make available an official printout of the results of the remuneration simulation tool used to calculate the impact of the reforms and of the amicable settlement to compensate for the losses allegedly suffered as a result of the reforms had failed, and, second, compensation for the non-material damage allegedly suffered by the applicants as a result of that decision of 31 January 2019,

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, N. Półtorak and M. Stancu (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

In 2009, the EIB introduced pension and salary progression reforms and, in 2011, a reform of bonuses (together ‘the reforms’).

The financial impact of those reforms having been challenged in advance by many members of staff, a conciliation procedure was conducted between the EIB and its staff in 2008.

Following that conciliation procedure, the administration of the EIB concluded, on 18 March 2009, with members of staff, a memorandum of understanding providing for measures to compensate for the main effects of the reforms (‘the memorandum of understanding’).

On the same day, the Director of Human Resources and the spokesman of the staff representatives also signed a side letter, attached to the memorandum of understanding (‘the side letter’).

Recital 9 of the memorandum of understanding states:

‘Whereas these transitional and compensatory measures have been negotiated at length by the [staff representation] and the administration, in a shared concern to preserve the necessary social cohesion among the staff; whereas the actuarial impact of these measures has been estimated by a simulator validated by both parties, the final version of which was produced on 18 March 2009 by SPAC and forwarded on the same day [to Human Resources] by the spokesman of the [staff representation].’

The simulation tool of the actuarial consultancy firm SPAC (‘SPAC’), audited and paid for by the EIB and accepted by the College of Staff Representatives, is a computerised actuarial tool simulating salaries and retirement pensions before and after the reforms, in order to assess the financial impact of those reforms on members of staff.

Paragraph 23 of the memorandum of understanding provides:

‘Any dispute arising in the interpretation and implementation of this memorandum which cannot be settled amicably shall be subject to the jurisdiction of the [General Court of the European Union].’

Under the sixth paragraph of the side letter:

‘We are also in agreement that it is necessary to examine the situations of any colleagues who were, contrary to all probability, to suffer a significant net loss of income as a result of one or both of the reforms (pensions and remuneration) despite the compensatory measures.’

In June 2016, the applicants notified the President of the EIB, in his capacity as the Appointing Authority, of standard letters drafted by the College of Staff Representatives requesting, first, that printed extracts of the SPAC tool simulations be sent to them, so that they could know the extent to which the compensatory measures had mitigated the consequences of the reforms and, second, that the EIB propose an amicable settlement to compensate for the losses allegedly suffered by them as a result of the reforms.

The Director of the Personnel Directorate of the EIB refused to grant those requests in an initial communication, published on the EIB’s intranet, of 21 June 2016, in which it was stated that the EIB would re-examine the matter in a subsequent general communication and that, in the meantime, no individual request would be dealt with by the Directorate (‘the communication of 21 June 2016’).

On 30 June 2016, a second communication was published on the EIB’s intranet, in which it was stated that the Personnel Directorate had held discussions with the College of Staff Representatives and that it had been explained to the College of Staff Representatives that it was impossible to carry out individual simulations for staff. Furthermore, that communication confirmed that individual requests would not be dealt with by the Personnel Directorate (that communication and that of 21 June 2016 together, ‘the June 2016 communications’).

On 7 July 2017, the staff representatives submitted a request to the President of the EIB seeking the opening of a conciliation procedure in accordance with Articles 38 and 39 of the Convention governing staff representation, since, such reconciliation being in the general interest, its outcome and consequences would apply to all members of staff affected, including the applicants. The request was accepted by the President and a conciliation board was established.

On 17 January 2019, the President of the EIB, referring to the Conciliation Board’s report, formally noted that the conciliation procedure had failed.

The applicants explain that Mr Vanhoudt became aware of the failure of the conciliation on 12 December 2018 or thereabouts, that is to say before the abovementioned letter of 17 January 2019. On 13 December 2018 Mr Vanhoudt sent, in his own name and on behalf of the other applicants, an email to the President of the EIB reiterating the requests that official printed extracts of the results of the SPAC simulation tool be made available to the applicants, on the one hand, and for compensation by the EIB for their financial losses, on the other.

On 31 January 2019, the President of the EIB replied to the email of 13 December 2018, rejecting those requests (‘the contested decision’). By that letter, on the applicants’ calculation, the President of the EIB refused them payment of losses of between EUR 71 976 and EUR 1 153 652.

Procedure and forms of order sought

By application lodged at the Court Registry on 4 May 2019, the applicants brought the present action.

By separate document lodged at the Court Registry on 2 August 2019, the EIB raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court.

The applicants lodged their observations on that plea of inadmissibility on 30 September 2019.

On a proposal by the Judge-Rapporteur, the Court, by way of measures of organisation of procedure as provided for in Article 89 of the Rules of Procedure, put a number of written questions to the parties, to which the parties replied within the prescribed period.

In their application, the applicants claim that the Court should:

–order the EIB to disclose to them the SPAC simulation tool and its results;

–in the event that the Court should find that that tool or its results are confidential, itself check the simulation using the SPAC simulation tool;

–annul the decision of the EIB of 31 January 2019;

–award them compensation for the non-material damage caused by the EIB’s decision not to disclose the SPAC simulation tool or its results;

–order the EIB to pay the reasonable costs which they have incurred in these proceedings.

In its plea of inadmissibility, the EIB contends, in essence, that the Court should:

–dismiss the action as inadmissible;

–in the alternative, dismiss the action as manifestly devoid of any legal basis;

–dismiss the applicants’ claim for damages;

–order the applicants to pay the costs that the EIB has incurred in the present proceedings.

In their observations on the plea of inadmissibility, the applicants claim that the Court should:

–reject the plea of inadmissibility and proceed with the main proceedings.

Under Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without considering the merits of the case. Under Article 126 of the Rules of Procedure, where the action is manifestly inadmissible, the General Court may at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.

It is apparent from the application that the applicants’ action includes, first, a request for measures of organisation of procedure or measures of inquiry; second, an application for annulment of the decision of 31 January 2019 and; third, a claim for damages for the loss allegedly suffered as a result of that decision.

The EIB contends that the applicants’ action for annulment is inadmissible and, in the alternative, that the action is manifestly lacking any foundation in law. In the view of the EIB, it follows that the claim for damages for the non-material harm associated therewith is also inadmissible. In the alternative, the EIB contends that the action is manifestly lacking any foundation in law.

The application for annulment

The EIB contends that the application for annulment is inadmissible in so far as it was brought out of time. The EIB argues, in that context, that an extraordinary period elapsed between the signature of the memorandum of understanding and the side letter and the bringing of the present action, on the one hand, and between the communications of June 2016 and the bringing of the present action or the making of the request for a conciliation procedure, on the other. In addition, in support of its plea of inadmissibility, the EIB observes that the decision of 31 January 2019, the annulment of which is sought, is an act which is purely confirmatory as regards the communications of June 2016.

The applicants dispute the EIB’s arguments.

It is appropriate to consider, initially, the argument regarding the nature of the contested decision, before examining those regarding the time limit for bringing proceedings.

The nature of the contested decision

The EIB submits that the decision of 31 January 2019, in so far as it is not based on substantial new facts, is an act which is purely confirmatory as regards the communications of June 2016.

The applicants dispute the EIB’s arguments, claiming that the President of the EIB expressly states, in the contested decision, that he decided to approve the Conciliation Board’s finding and that the decision must therefore be placed in the context of the conciliation procedure before him.

In that regard, it must be borne in mind that, in accordance with settled case-law, as regards a request for reconsideration of a previous decision, if an act constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that act cannot be regarded as purely confirmatory. By contrast, if the factors on which such an act is based are not substantial new facts, that act is purely confirmatory of the previous act (see, to that effect, judgment of 15 November 2018, Estonia v Commission, C‑334/17 P, not published, EU:C:2018:914, paragraph 48).

A fact which does not substantially alter the applicant’s situation at the time of the adoption of the previous decision which has become definitive does not constitute a substantial new fact within the meaning of the case-law (see judgment of 15 November 2018, Estonia v Commission, C‑334/17 P, not published, EU:C:2018:914, paragraph 47 and the case-law cited).

It is in the light of those considerations that it must be examined whether the decision of 31 January 2019 is purely confirmatory of the June 2016 communications.

In that regard, it must be noted that the persons who submitted the requests rejected by the communications of June 2016 and by the decision of 31 January 2019 are the same. Furthermore, as the parties confirm in their answers to the questions put by the Court, it must be found that the requests themselves are identical. In both their individual letters of June 2016 and the email sent on 13 December 2018 by Mr Vanhoudt in his own name and on behalf of the other applicants, the applicants requested that they be sent a printout of the results of the SPAC simulation tool and that they be compensated for the losses allegedly suffered. Lastly, the matters relied on in the email of 13 December 2018 in support of the requests made therein do not constitute substantive new facts compared with those relied on in the letters sent individually in June 2016. Thus, both documents refer to the provisions of the memorandum of understanding and the side letter.

It is true that, in his email of 13 December 2018, Mr Vanhoudt referred to the collective conciliation procedure which took place and to its failure, which constitutes a new fact as compared with the matters referred to in the letters sent individually in June 2016. However, that is not a fact which substantially altered the applicants’ legal situation as it stood in June 2016. Their remuneration was defined in accordance with the reforms and it was already established at the time of the communications of June 2016 that the EIB would not respond to individual claims seeking compensation for any losses. It must therefore be concluded that, in his email of 13 December 2018, Mr Vanhoudt, in essence, merely repeats the arguments which had previously been set out in the letters sent individually in June 2016.

Furthermore, it must be noted that none of the information contained in the decision of 31 January 2019 can constitute a substantive new fact such as to make of it a new decision adversely affecting the applicants as compared with the communications of June 2016. As the parties confirm in their responses to the Court’s questions, both the communications of June 2016 and the decision of 31 January 2019 reject the applicants’ requests, on the one hand, to receive printouts of the results of the SPAC simulation tool and, on the other, to be compensated for the losses allegedly suffered. Furthermore, it is in no way apparent from the decision of 31 January 2019 that it had been sent after a prior re-examination of the applicants’ situation. On the contrary, the President of the EIB merely referred to the outcome of the conciliation procedure, simply adding that he had decided to confirm it.

In the light of those facts, it must be held that the decision of 31 January 2019 is an act which is purely confirmatory of the communications of June 2016.

It is appropriate to recall that, in accordance with settled case-law, an action for annulment brought against a decision which is purely confirmatory of an earlier decision which has not been challenged in time is inadmissible (see order of 21 March 2018, UD v Commission, T‑574/17, not published, EU:T:2018:176, paragraph 19 and the case-law cited).

That case-law seeks to ensure compliance with the time limits for bringing proceedings and the principle of res judicata and, thus, to protect the principle of legal certainty. Rules concerning time limits for taking steps in proceedings are mandatory and must be applied by the EU Courts in such a way as to safeguard legal certainty and equality of persons before the law whilst avoiding any discrimination or arbitrary treatment in the administration of justice (see order of 21 March 2018, UD v Commission

, T‑574/17, not published, EU:T:2018:176, paragraph 20 and the case-law cited).

The period of time which elapsed between the 2016 communications and the request to initiate the conciliation procedure or the bringing of the action

42The EIB submits, in essence, that the applicants are time-barred from bringing an action against the earlier decisions contained in the communications of June 2016, given that the period which elapsed between those communications and the bringing of the present action or the request for the conciliation procedure was too long.

43The applicants dispute the EIB’s arguments and refer, in that context, to the conciliation procedure under Article 38 of the Convention governing staff representation, which took place between the two documents, stating that the mechanism for out-of-court dispute settlement at the heart of the EIB’s internal system of justice would be undermined in its entirety if, in the present case, the period allowed for bringing proceedings before the General Court had started to run in June 2016 and not at the end of the abovementioned conciliation procedure.

44It must be recalled that, in the present case, following the communications of June 2016, the staff representatives submitted a request, on 7 July 2017, to the President of the EIB seeking the opening of a conciliation procedure in accordance with Articles 38 and 39 of the Convention governing staff representation.

45Article 38(1) of that convention provides as follows:

46‘Disputes of any kind relating to decisions to be taken concerning the general interests of the staff, or their application, may be submitted to a Conciliation Board which shall have the task of seeking a solution.’

47Thus, that provision does not lay down any binding mandatory time limit, either for submitting a request for conciliation or for bringing an action before the General Court.

48It is clear from the case-law that, in the case of an action or request in respect of which no provision of EU law lays down the time limit within which that action must be brought or the request made, the action must be brought or the request made within a reasonable time (see, to that effect, judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraph 33).

49In that regard, it should be borne in mind that the reasonableness of a period is to be appraised in the light of all the circumstances specific to each case and, in particular, the importance of the case to the person concerned, its complexity and the conduct of the parties (see, to that effect, judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraphs 28, 33 and 39).

50In the present case, it is common ground that the applicants were informed of the decision rejecting their applications by the communications of June 2016. It follows that the request for conciliation was submitted almost 13 months after they became aware of the decisions adversely affecting them.

51In the light of the facts of the case, such a period cannot be regarded as a reasonable period for challenging those decisions, particularly since, first, the issues raised were well known to the applicants and did not pose particularly complex problems justifying a longer period and, second, the applicants assert that the present action is of great importance to them, which makes the long wait which preceded the request for a conciliation procedure all the less justifiable.

52Moreover, it is clear that the applicants do not put forward any particular circumstance capable of justifying the period of 13 months which elapsed between the act adversely affecting them and the request for the conciliation procedure.

53It is thus clear from the foregoing considerations that, even though the opening of the conciliation procedure under Article 38 of the Convention governing staff representation might have the effect of suspending the time limit for bringing an action against the June 2016 communications, it appears, in the present case, that that procedure was not requested within a reasonable period. That procedure cannot, therefore, have such suspensory effect.

54That conclusion cannot be called into question by the applicants’ arguments.

55First, the applicants claim that the EIB did not rely on the late opening of the conciliation procedure in the course of that procedure and that acceptance of the condition that the request for the conciliation procedure must be made within a reasonable period would lead to the situation in which the EIB could systematically accept a conciliation procedure without raising any objections relating to the time limit for bringing it and, after its failure, prevent the person concerned from bringing proceedings before the Court.

56In that regard, it is sufficient to note that since the question of the time limit for bringing an action before the General Court is a matter of public policy (see, to that effect, order of 26 October 2016, Edeka-Handelsgesellschaft Hessenring v Commission, T‑611/15, not published, EU:T:2016:643, paragraph 29 and the case-law cited), it may be raised at any time in the proceedings before the General Court.

57The applicants’ first argument must therefore be rejected.

58Second, the applicants refer to footnote 7 to the Opinion of Advocate General Kokott in OZ v EIB (C‑558/17 P, EU:C:2018:930), where it is stated that ‘even an action brought outside the three-month period against an act attributable to the EIB cannot, from the outset, be regarded as not having been brought within a reasonable period’, in order to argue that the EIB has not established that, in the light of the circumstances, the relevant periods were unreasonable in the present case.

59The Opinion of Advocate General Kokott in OZ v EIB (C‑558/17 P, EU:C:2018:930) referred, in the same context, to the judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134), which provides that the reasonableness of a period cannot be regarded as a specific limitation period, but must 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.

60However, as stated above, in the light of all the circumstances specific to the present case, a period of 13 months in which to make the request for a conciliation procedure cannot be regarded as a reasonable period and the applicants have failed to adduce evidence of special circumstances which could justify their delay in acting. The argument must therefore be rejected.

61Third, the applicants rely on Article 277 TFEU, stating that the relevant provisions of the second paragraph of Article 263 TFEU which apply to their case concern ‘infringement of essential procedural requirements’ and the ‘misuse of powers’ and that both arguments are at the heart of the EIB’s reasons for not disclosing the SPAC simulator.

62It must be borne in mind, as regards the nature of the plea of illegality, that, in accordance with consistent case-law, Article 277 TFEU gives expression to a general principle conferring upon any party the right to challenge, for the purpose of obtaining the annulment of an act against which that party may bring an action, the validity of an act of general application adopted by an EU institution which forms the legal basis of the decision which is being attacked, if that party was not entitled to bring a direct action challenging such an act by which it was thus affected without having been in a position to ask that it be declared void (judgments of 6 March 1979, Simmenthal v Commission, 92/78, EU:C:1979:53, paragraph 39; of 19 January 1984, Andersen and Others v Parliament, 262/80, EU:C:1984:18, paragraph 6; and of 11 December 2012, Sina Bank v Council, T‑15/11, EU:T:2012:661, paragraph 43).

63It is clear that the applicants fail to specify which legislative measure of general application is, in their view, unlawful. It follows that the applicants’ argument must be rejected.

64Fourth, in their reply to the Court’s questions, the applicants rely on the principle of excusable error and explain, in that regard, that the communication of 21 June 2016 stated that the EIB was going to return to the subject of their requests and that they submitted their request for a conciliation procedure as soon as they realised that the EIB was in fact no longer returning to the subject. Furthermore, they claim to have acted in good faith. Lastly, they refer to paragraph 23 of the memorandum of understanding, which provides that any dispute arising in the interpretation and implementation of that protocol which cannot be settled amicably will be within the jurisdiction of the General Court, and submit that that paragraph does not state a period within which an action must be brought before the Court.

65Irrespective of whether the chronology of the facts can be read as meaning that, following the communication of 21 June 2016, the EIB returned to that subject in its communication of 30 June 2016, the applicants cannot, particularly in such a situation, of which they were well aware and which, in their view, was very significant, reasonably claim that they made an excusable error or acted in good faith to justify their having waited 13 months before making a request for a conciliation procedure.

66Furthermore, the appellants’ argument concerning the fact that Article 23 of the memorandum of understanding does not expressly mention the time limit for bringing an action before the General Court must be rejected. It must be recalled that, in accordance with settled case-law, in the absence of any indication in the Treaty or in the Staff Regulations as to the time limit for bringing actions in disputes between the Bank and its staff, those disputes must be brought before the EU Courts within a reasonable time (see, to that effect, judgments of 6 March 2001, Dunnett and Others v EIB, T‑192/99, EU:T:2001:72, paragraphs 51 to 54, and of 27 April 2012, De Nicola v EIB, T‑37/10 P, EU:T:2012:205, paragraph 75). As has already been stated in paragraph 58 above, in the light of all the facts of the present case, a period of 13 months in which to submit the request for a conciliation procedure cannot be regarded as a reasonable period and the applicants have failed to adduce evidence of special circumstances capable of justifying their delay in acting. It follows, a fortiori, that the matter was not brought before the Court within a reasonable time, the applicants having failed to justify that delay.

67In the light of the foregoing observations, it must be held that the earlier decisions included in the communications of June 2016 were not challenged within a reasonable period.

68Consequently, it is appropriate to uphold the plea of inadmissibility raised by the EIB in relation to the claim for annulment of the decision of 31 January 2019 and it must be held that that head of claim is inadmissible, given that it is an act which is purely confirmatory of decisions contested out of time, without it being necessary to examine whether, as the EIB essentially claims, it is manifestly lacking any foundation in law.

The claim in the alternative for damages

68The applicants ask the Court, in the alternative, to award them compensation for the non-material harm which they claim to have suffered as a result of the decision of 31 January 2019 not to disclose the SPAC simulation tool or the results thereof.

69The applicants claim, in that regard, that that decision is arbitrary and that it shows a procedural irregularity, in that the EIB unilaterally adopted both the results and the methodology of an autonomous operation, thus preventing the applicants from verifying the lawfulness of the exercise of the discretion which flows from that operation. In addition, the applicants claim to have suffered stress, emotional injury and mental anxiety as a result of the EIB’s having caused them unjustified uncertainty. According to the applicants, that constitutes wrongful conduct by the EIB in the treatment of its staff. Lastly, the applicants state that that harm can be estimated at EUR 8 000.

70It must be noted that, in the circumstances of the present case, the proper administration of justice justifies a ruling on the merits of the action for compensation brought by the applicants, without it being first necessary to rule on its inadmissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52).

71In that regard, it should be borne in mind that it is settled 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 (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 122 and the case-law cited). Furthermore, the EU Courts are not required to examine those conditions in any particular order (judgment of 8 November 2017, De Nicola v Council and Court of Justice of the European Union, T‑42/16, not published, EU:T:2017:791, paragraph 44).

72As regards the condition that there must be a causal link between the conduct alleged and the harm pleaded, that harm must be a sufficiently direct consequence of the conduct complained of, which must be the decisive cause of the harm, although there is no obligation to make good every harmful consequence, even a remote one, of an unlawful situation. It is for the applicant to adduce evidence of a causal link between the conduct complained of and the harm pleaded (judgments of 16 October 2014, Evropaïki Dynamiki v Commission, T‑297/12, not published, EU:T:2014:888, paragraph 32, and of 8 November 2017, De Nicola v Council and Court of Justice of the European Union, T‑42/16, not published, EU:T:2017:791, paragraph 43).

73In the present case, it must be held that the causal link between the conduct alleged against the EIB, consisting of the allegedly arbitrary and irregular adoption of the decision of 31 January 2019, and the non-material harm pleaded, namely the stress, emotional harm and mental anxiety allegedly suffered by the applicants, is clearly lacking, since that decision merely confirms the communications of June 2016 and the conclusion of the Conciliation Board concerning the failure of the conciliation procedure, as communicated to the applicants on 17 January 2019 (see, to that effect, order of 30 June 2009, CPEM v Commission, T‑106/08, not published, EU:T:2009:228, paragraph 42).

74The claim for damages must therefore be dismissed, on the basis of Article 126 of the Rules of Procedure, as manifestly lacking any foundation in law.

Costs

76Under 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. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the EIB.

On those grounds,

hereby orders:

1.The action is dismissed as in part inadmissible and in part manifestly lacking any foundation in law.

2.Mr Patrick Vanhoudt and the other applicants whose names are listed in the annex shall pay the costs.

Luxembourg, 11 June 2020.

Registrar

President

—

Language of the case: English.

The list of the other applicants is annexed only to the version sent to the parties.