31 March 2020 (*)

(Action for annulment and for damages — Civil service — EIF Staff — Tendering by the member of staff of her resignation for personal reasons — Leave due to serious illness starting before the end date of the employment contract chosen by the member of staff — Application for withdrawal of the resignation after the end date of the employment contract chosen by the member of staff — EIF’s refusal to accept the retroactive withdrawal of the resignation — End date of the contract delayed on account of sick leave — Whether Article 33 of the EIF Staff Regulations is applicable — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

In Case T‑155/19,

AP,

applicant,

European Investment Fund (EIF),

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 EIF’s letters of 30 August and 3 October 2018 rejecting the applicant’s request of 20 June 2018, secondly, that the EIF be ordered to pay the applicant the benefits under Article 33 of the EIF Staff Regulations and, thirdly, compensation for the non-material harm that the applicant claims to have suffered,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, R. Barents and J. Laitenberger (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

1The applicant, AP, was hired by the European Investment Fund (EIF) in January 1998. After having announced her intention to retire for personal and family reasons in June, July and October 2017, the applicant sent a letter to the Director-General of the EIF on 23 November 2017 in which she tendered her resignation under Article 16 of the Regulations applicable to the staff of the EIF (‘the Staff Regulations’). In that letter, the applicant stated that her employment contract would end on 31 March 2018 and that, because of annual leave which she intended to take before that date, her last day in the office would be 8 February 2018.

2The EIF did not dispute the end date of the contract indicated by the applicant, which corresponded to a four-month notice period, although, pursuant to Article 17 of the Staff Regulations and as provided for in her contract of employment, the notice period which she was required to give in the event of resignation was only three months.

3On 27 February 2018, the applicant was diagnosed with [confidential] cancer, (1) she informed the EIF of that diagnosis on 1 March 2018 by email, and asked the department concerned for additional information on the extent of her health insurance cover and the associated costs. On 15 March 2018, she submitted a medical certificate to the EIF in support of her being placed on sick leave, which retroactively covered the period from 9 February to 31 March 2018.

4The applicant requested the extension at her own expense of medical insurance cover beyond 31 March 2018, in the event to 31 December 2018, in accordance with Article 8(4) of the EIF Staff Rules.

5In May 2018, the applicant asked the EIF Human Resources Department, by telephone, whether she could withdraw her resignation. That department replied that such a withdrawal was not possible because her resignation had already taken effect.

6However, by letter of 12 June 2018, the EIF proposed making an exceptional gesture in favour of the applicant by paying her an amount of EUR 10 000.

7By letter of 20 June 2018, the applicant notified the EIF of her intention to withdraw her resignation and requested it to accept that withdrawal. The applicant considered that on the date on which she had handed in her resignation letter her consent was defective, since she was unaware, first, that she would be diagnosed with cancer on a date on which she was still employed by the EIF, and, secondly, that the EIF would refuse the application of social security cover in her case, as provided for by the Staff Regulations, including by not suspending the notice period, to which she was subject in the case of resignation, for the length of her sick leave. She noted, in that regard, that it was because of her medical situation that she had informed the EIF and had sought in vain the EIF’s assistance in respect of the extension of her employment contract.

8By letter of 21 June 2018, the applicant rejected the EIF’s offer to pay her an amount of EUR 10 000, reiterated her request for the EIF to accept the withdrawal of her resignation and requested the EIF, in the alternative, to accept that the resignation notice period was, in accordance with Article 33 of the Staff Regulations, suspended from the time of her absence from work on account of her illness, in the event, from 9 February 2018, until the end of her sick leave.

9By letter of 13 July 2018, the EIF rejected both of the applicant’s requests on the ground that there was no legal basis for it to accept the withdrawal of her resignation or the suspension of the notice period. In particular, the EIF submitted, first, that the applicant’s argument that her resignation was defective on the ground that she was unaware that she would be diagnosed with cancer three months later was not a legal argument ‘per se’ and, secondly, that the applicant’s former post at the EIF had been filled as planned on the basis that the applicant had given as the reason for her resignation her intention to return to her Member State of origin before the end of the notice period. In that context, the EIF, however, renewed its offer of a payment of EUR 10 000.

10By letter of 17 July 2018, the applicant, whilst conceding that the Staff Regulations did not provide for the suspension of the notice period in the event of sick leave, maintained that those regulations should be interpreted consistently and in line with the Charter of Fundamental Rights of the European Union (‘the Charter’) and the duty of care. That interpretation should, in the applicant’s submission, lead to the creation of an obligation for the EIF to suspend the notice period in the event of illness. That being said, the applicant stated that she was willing to continue discussions with the EIF with a view to agreeing a proper amount to settle the case.

11By letter of 30 August 2018, the EIF replied to the applicant reiterating its position that a suspension of the notice period was not provided for in the Staff Regulations. The EIF, however, proposed, exceptionally and in the specific case of the applicant, considering a suspension of the notice period for a three-month period, basing itself, in that regard, on Article 47 of the Conditions of Employment of Other Servants of the European Union (CEOS) which provides, in the event of sick leave, for suspension of the notice period, for a period of up to three months, for temporary agents of the European Union. In addition, the EIF stated that it would be ready to waive the requirement for the applicant to resume work for the remaining period after her sick leave.

12By letter of 19 September 2018, the applicant rejected the EIF’s offer to suspend the notice period on the basis of Article 47 of CEOS, arguing that that provision was not relevant, since Article 33 of the Staff Regulations applied in the present case and must be interpreted as meaning that the notice period was suspended on account of her sick leave. Therefore, the applicant reiterated her request for a suspension of the resignation notice period to be granted in her case under Article 33 of the Staff Regulations or, in the alternative, for her to be offered a ‘financial equivalent’.

13By letter of 3 October 2018, the EIF replied to the applicant that Article 33 of the Staff Regulations did not apply to her situation. It maintained, however, the offer contained in the letter of 30 August 2018 to consider granting, by way of exception in her case, a suspension of the notice period for a period of three months in the light of the similarity of her situation to that of a temporary agent under Article 47 of CEOS.

14By letter of 27 November 2018, the applicant, under Article 41 of the Staff Regulations, requested the EIF to open conciliation proceedings and, with that in mind, named her Conciliation Board member. By letter of 6 December 2018, the EIF agreed to open the conciliation proceedings and also named its member of the Conciliation Board. On 30 January 2019, the two members of the Conciliation Board, named by the applicant and the EIF, in turn named an individual as the third member and President of that Board.

15On 20 March 2019, the Conciliation Board stated that the conciliation proceedings had failed.

Procedure and forms of order sought

16By application lodged at the Court Registry on 12 March 2019, the applicant brought the present action, in which she claims that the Court should:

–annul the decisions of 30 August and 3 October 2018 rejecting her request of 20 June 2018;

–order the EIF to pay the applicant the benefits referred to in Article 33 of the Staff Regulations retroactively from 1 April 2018, including default interest at the European Central Bank (ECB) rate plus two points until receipt of the total amount;

–compensate her in respect of non-material harm, evaluated ex æquo et bono in the amount of at least EUR 20 000;

–order the EIF to pay all of the costs.

17By separate document lodged at the Court Registry on 24 May 2019, the EIF, pursuant to Article 130(1) of the Rules of Procedure of the General Court, raised a plea of inadmissibility in which it contends that the Court should:

–dismiss the application as manifestly inadmissible;

–dismiss the application as manifestly unfounded;

–dismiss the applicant’s claim for damages;

–order the applicant to pay the costs incurred by the EIF in the present proceedings.

18By document lodged at the Court Registry on 11 July 2019, the applicant submitted her observations on that plea of inadmissibility.

19By decision of 26 November 2019, the General Court (Eighth Chamber) instructed the Judge-Rapporteur to examine the possibility of settling the dispute by means of an amicable settlement, in accordance with Article 125a of the Rules of Procedure.

20The Court noted the failure of the attempted settlement, which the parties were informed of by letter from the Court Registry of 20 December 2019.

21Under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. In that regard, in accordance with settled case-law, the dismissal of an action by reasoned order made on the basis of that article not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing, if, upon reading the case file, the Court, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the manifest inadmissibility of the application or that it is manifestly lacking any foundation in law and further considers that the holding of a hearing would be unlikely to provide new evidence capable of affecting that belief (see order of 10 July 2014, Mészáros v Commission, F‑22/13, EU:F:2014:189, paragraph 39 and the case-law cited).

22Moreover, in accordance with settled case-law, it is for the EU judicature to assess, depending on the circumstances of each case, whether the proper administration of justice justifies dismissing the action on the merits, without first ruling on the plea of inadmissibility raised by the defendant (see, to that effect, judgments of 26 February 2002, Council v Boehringer C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52; of 23 March 2004, France v Commission, C‑233/02, EU:C:2004:173, paragraph 26; of 15 June 2005, Regione autonoma della Sardegna v Commission, T‑171/02, EU:T:2005:219, paragraph 155; of 8 April 2008, Bordini v Commission, F‑134/06, EU:F:2008:40, paragraph 56, and of 28 September 2011, AZ v Commission, F‑26/10, EU:F:2011:163, paragraph 34).

23In the present case, the Court considers that it has sufficient information from the documents on the file and decides to rule on the action without taking further steps in the proceedings and, particularly, without it being necessary to first rule on the plea of inadmissibility raised by the EIF in that regard, the annulment action being, in any event and for the reasons set out below, in part manifestly lacking any foundation in law, and in part manifestly inadmissible.

The first head of claim, seeking annulment of the contested letters

24By her first head of claim, the applicant expressly seeks the annulment of the EIF’s decisions of 30 August and 3 October 2018 rejecting her request of 20 June 2018. That request, however, only contains a request for the EIF to accept the withdrawal of her resignation. The EIF’s letters of 30 August and 3 October 2018 do not deal with that request, but with the request concerning suspension of the notice period for the duration of the applicant’s illness, as set out by the applicant in her letter of 21 June 2018. However, it is quite clear from the application that the applicant must be regarded as contesting, in the present case, first, the EIF’s letter of 13 July 2018 rejecting her request of 20 June 2018 for the withdrawal of her resignation to be accepted and, secondly, the letters of the EIF of 30 August and 3 October 2018 in so far as they reject the request for suspension of the notice period, as set out in the letter of 21 June 2018 (‘the contested letters’).

25It is clear from the file that none of the information provided by the applicant is capable of calling into question the validity of her resignation on 23 November 2017.

26It is not disputed that, when she tendered her resignation, first, she was not temporarily incapacitated from assessing the consequences of that resignation and, secondly, she was not under pressure of any sort. On the contrary, it is clear from the file that the applicant had been preparing her resignation for personal and family reasons for some time, whilst informing the EIF of her intentions.

27Nevertheless, the applicant considers that her consent at the time of her resignation was defective, since, at the time of her resignation, she was unaware that she was going to be diagnosed with cancer and that the EIF would deny her the benefit of social security cover beyond the duration of her notice period. She states that she would not thus have resigned if she had been aware of those circumstances.

28The fact that, when she unequivocally tendered her resignation, the applicant was not in a position to foresee that medical examinations would reveal the existence of her medical condition during the resignation notice period, which, moreover, she fixed herself, and the fact that she allegedly did not know that she was not covered by the EIF for that condition beyond the end of her notice period, cannot however call into question the validity of her resignation.

29In the first place, it should be noted that all decisions are taken in circumstances of uncertainty as to future developments, and in particular in relation to unforeseeable, yet possible, events, such as illnesses and accidents. If the occurrence of an unforeseeable, but by definition possible, event must be considered to be sufficient to invoke retroactively the invalidity of the resignation of a staff member, there would be no legal certainty in the case of the decisions of individuals whose situation subsequently changed for the worse.

30In the second place, according to well-established case-law, any normally diligent member of staff is deemed to be familiar with the rules governing the conditions of his employment (see, to that effect, judgments of 26 June 2013, BM v ECB, F‑106/11, EU:F:2013:91, paragraph 45, and of 12 March 2014, CR v Parliament, F‑128/12, EU:F:2014:38, paragraph 45). Thus, in the present case, any incorrect interpretation of Article 33 of the Staff regulations, would, consequently, be solely the applicant’s responsibility. It should be observed in that regard that the applicant did not, at any time before her resignation, request the EIF to provide clarification in respect of that provision. Consequently, and in the light of the clear and unequivocal wording of that provision, the EIF was not obliged, on its own initiative, to provide clarification as to the interpretation of Article 33 of the Staff Regulations.

31It follows from all the foregoing that the applicant’s resignation dated 23 November 2017 is valid and that, in accordance with Article 17 of the Staff Regulations and as there was no opposition from the EIF under Article 18 of those regulations, her employment contract ended on the date which she had chosen, namely 31 March 2018.

32Furthermore, in so far as the applicant submits that the refusal to accept the withdrawal of her resignation infringes the duty of care which is strengthened in respect of a member of staff who is ill, she does not demonstrate in what way, or to what extent, the duty of care requires that the EIF accept the withdrawal of her resignation or how it could have an impact on the validity of that resignation.

33Consequently, on any view, the EIF was fully entitled, in the letter of 13 July 2018, as a consequence of the applicant’s unilateral decision to resign from her post with effect from 31 March 2018, to reject her request to withdraw her resignation.

34Lastly, concerning the EIF’s letters of 30 August and 3 October 2018, it is clear that, in those letters, the EIF merely indicated to the applicant that, despite her request of 21 June 2018, the end of her resignation notice period had not changed as a result of her sick leave and that Article 33 of the Staff Regulations was not intended to govern that situation.

35As to the applicant’s claim that the notice period that she had fixed in her resignation letter should be suspended for the duration of her sick leave, it must be held, contrary to what is submitted by the applicant, that Article 33 of the Staff Regulations concerns only the remuneration of EIF staff in the event of sick leave. In accordance with its clear and unambiguous wording, Article 33 of the Staff Regulations does not govern whether dismissal or resignation notice periods, given under Article 17 or 18 of those regulations, should be suspended for the duration of an illness contracted during the notice period, including, where relevant, beyond the end date of the employment contract fixed by the applicant.

36In the absence of a specific provision adopted by the EIF, akin to the provision that the EU legislature laid down in Article 47 of CEOS in the case of staff falling within Article 336 TFEU, it must be held that, in its functional autonomy as regards the body of rules applicable to its staff (see Article 16(1) and Article 21(5) of the EIF Statutes), which is distinct from the rules applying to EU officials and the rules applying to other staff of the European Union, to which Article 336 TFEU refers (see, by analogy, judgment of 23 February 2001, De Nicola v EIB, T‑7/98, T-208/98 and T‑109/99, EU:T:2001:69, paragraphs 90 and 91), and which is, furthermore, not dependent on the laws of the Member States (see, by analogy, judgment of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 146), the EIF did not intend to provide for such a suspension. In that regard, the applicant’s reference to the Charter has no bearing on that finding, since it does not enshrine the right of any worker to have his or her period of notice for dismissal or for resignation suspended because of an illness contracted during the implementation of such a notice period. In fact, Article 34 of the Charter recognises and respects the entitlement to social security benefits ‘in accordance with the rules laid down by Union law and national laws and practices’. In the present case, Article 33 of the Staff Regulations defined the rules applicable to members of its staff for the duration of their contracts and those rules were complied with by the EIF.

37The applicant’s submissions based on the principle of sound administration, which requires that internal rules are clearly drafted, and on an alleged general principle, common to the laws of the EU Member States, that unclear contract terms must be interpreted in favour of the weaker party must also be rejected. The applicant does not show how or to what extent Article 33 of the Staff Regulations does not observe those principles. In addition, the wording of Article 33 of the Staff Regulations is sufficiently clear and does not contain any information concerning possible suspension of a notice period in the event of illness which might tend to cause confusion.

38The argument advanced by the applicant that the EIF’s interpretation of Article 33 of the Staff Regulations meant that a long-serving member of staff would be less well protected than a member of staff on a probationary period must also be rejected. First, the possibility of delaying the end date of a probation period in the event of illness serves a different purpose to the suspension of a notice period, such as that claimed by the applicant. The purpose of extending the probation period is to ensure that the decision that the employer must take at the end of the probation period on the continuation of the contract is based on a sufficiently long period of service. Secondly, section 5.3 of Annex IX to the EIF Staff Rules expressly provides that even valid reasons, such as illness, cannot justify an extension of the fixed term of the contract for the completion of the probationary period. Contrary to what the applicant suggests, the possibility of extending a probationary period does not therefore involve extension of the duration of the contract.

39Furthermore, the applicant’s argument that she feels discriminated against in relation to an employee in the private sector in Luxembourg, thus invoking implicitly the ratio legis of Article 44 of the Staff Regulations, which provides that the general principles common to the laws of the EU Member States apply to individual contracts between EIF staff, also cannot succeed. In the applicant’s submission, an employee in the Luxembourgish private sector has the right, following resignation, to continue to benefit from Luxembourgish social security system sickness benefits if that employee has been affiliated to that system for at least six months. In that regard, it should be noted that the applicant, by the present action, in reality seeks a different sort of protection, namely an extension of the length of her employment contract on account of her illness. As for the possibility of continuing to have access to health insurance benefits, it should be noted that the applicant requested the continuation of her health cover, in the circumstances defined by the EIF Staff Rules, for a set period at her own expense. The argument put forward by the applicant is therefore not relevant and does not demonstrate that there is a general principle common to the laws of the EU Member States that a resignation notice period should be suspended in the event of an employee’s illness after that employee has resigned and which might be applicable under Article 44 of the Staff Regulations.

40Lastly, in so far as the applicant maintains that because of the literal interpretation of Article 33 of the Staff Regulations she did not benefit from any social security scheme and was not eligible for any sickness benefit, either in the Member State where she resides or in the Member State where she received her medical treatment, so that she found herself, because of the EIF’s refusal, without social protection, it should be noted that it was the applicant herself who tendered her resignation. It was, therefore, for her to assess what her social security cover would be after the end of her employment contract and, where appropriate, to take measures in that regard before tendering her resignation. In any event, Article 34 of the Charter cannot be construed as requiring the institutions, bodies and agencies of the European Union, or even the EIF, to cover the risk of illness of their former employees after the end of their employment relationship and, therefore, cannot constitute the basis for a broad interpretation of Article 33 of the Staff Regulations, such as that proposed by the applicant, allowing a suspension of the resignation notice period, in order for her to be able to withdraw, where deemed appropriate, retroactively her resignation after the end of the employment relationship (see, to that effect and by analogy, judgment of 16 January 2018, SE v Council T‑231/17, not published, EU:T:2018:3, paragraph 57).

41It follows from all the foregoing considerations that regardless of whether, by the letters of 30 August and 3 October 2018, the EIF re-assessed the applicant’s situation, it rightly refused to apply Article 33 of the Staff Regulations to the applicant on the ground that the notice period, given by the applicant for the period which she had stated in her resignation letter, should have been suspended because of her illness.

42Consequently, the first head of claim seeking the annulment of the decisions said to be contained in the contested letters must be dismissed as being manifestly unfounded in law.

The second head of claim seeking an order that the EIF pay the benefits referred to in Article 33 of the Staff Regulations

43In its plea under Article 130 of the Rules of Procedure, the EIF maintains that the second head of claim that the Court order it to pay the applicant the benefits under Article 33 of the Staff Regulations is inadmissible since it would amount to a direction to re-employ the applicant imposed on it by the Court. However, when reviewing legality under Articles 263 or 270 TFEU, the Court has no jurisdiction to issue injunctions to the institutions.

44In her observations on the plea of inadmissibility, the applicant considers that the grant of the benefits referred to in Article 33 of the Staff Regulations should simply follow from the annulment of the ‘decisions’ contained in the contested letters and from the suspension of the notice period or the withdrawal of the resignation and that no injunction against the EIF is necessary. Furthermore, that head of claim seeks compensation for the material harm that the applicant has suffered on account of the adoption of the contested letters.

45In that regard it is settled case-law that, where the EU judicature exercises its powers of annulment in an action brought under Article 91 of the Statute, it cannot, without encroaching on the prerogatives of the administrative authority, make declarations or findings of principle, or issue directions to the EU institutions (see judgment of 16 September 2013, De Nicola v EIB, T‑264/11 P, EU:T:2013:461, paragraph 63 and the case-law cited; orders of 16 May 2006, Voigt v Commission, F‑55/05, EU:F:2006:32, paragraph 25; of 11 May 2011, Caminiti v Commission, F‑71/09, EU:F:2011:53, paragraph 23, and judgment of 21 July 2016, De Nicola v EIB, F‑100/15, EU:F:2016:167, paragraph 89). That principle also applies to disputes between the EIF and its members of staff.

46It follows that the second head of claim must be rejected as manifestly inadmissible.

The claim for damages

47In its plea raised under Article 130 of the Rules of Procedure, the EIF takes the view that the head of claim seeking compensation for the alleged non-material harm is directly linked to the application for annulment considered in the context of the first head of claim. The manifest inadmissibility of the first head of claim consequently results in the inadmissibility of the third head of claim.

48The applicant considers, on the contrary, that the third head of claim is admissible on account of the admissibility of the first head of claim.

49According to settled case-law, a claim for compensation for damage must be dismissed where there is a close connection between that claim and a claim for annulment, which has itself been dismissed either as inadmissible or as unfounded (judgments of 1 April 2009, Valero Jordana v Commission, T‑385/04, EU:T:2009:97, paragraph 90, and of 13 December 2005, Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, paragraph 207).

50Since the third head of claim is closely linked to the first head of claim, it is necessary to reject that claim as manifestly lacking any foundation in law.

51Having regard to all the foregoing considerations, the action must be dismissed in its entirety as being in part manifestly inadmissible and in part manifestly lacking any foundation in law.

Costs

52Under 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. Since the applicant has been unsuccessful, she must be ordered to bear her own costs and to pay those incurred by the EIF, in accordance with the form of order sought by the latter.

On those grounds,

hereby orders:

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

2.AP shall pay the costs.

Luxembourg, 31 March 2020.

J. Svenningsen

Registrar

President

Language of the case: English.

Confidential information omitted.