ZW v EIB (Action for annulment and for damages - Civil service - Order) [2019] EUECJ T-727/18

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(Action for annulment and for damages — Civil service — Vacancy notice — Rejection of application — Delay — Manifest inadmissibility)

ACTION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the EIB’s decision of 3 March 2017 rejecting the applicant’s application [confidential] (1) and, second, compensation for the harm allegedly suffered by the applicant as a result of that decision,

composed of S. Gervasoni (Rapporteur), President, P. Nihoul and J. Martín y Pérez de Nanclares, Judges,

1 On 7 November 2016, the applicant, ZW, applied for a post [confidential] at the European Investment Bank (EIB) [confidential] (‘the post at issue’).

2 By email of 3 March 2017, the EIB informed the applicant of its decision to appoint another candidate to the post at issue (‘the contested decision’).

3 On 14 March 2017, the applicant lodged a complaint against that decision in the context of ‘the EIB Complaints Mechanism’.

4 By email of 23 May 2017, the EIB sent to the applicant the Conclusions Report drawn up in the context of the Complaints Mechanism, rejecting her complaint.

5 On 5 July 2017, the applicant lodged a complaint with the European Ombudsman, alleging maladministration by the EIB during the recruitment procedure for the post at issue in which she participated.

6 On 11 October 2018, the Ombudsman adopted a decision concluding that there had been no maladministration on the part of the EIB during the recruitment procedure at issue.

7 On 6 December 2018, the applicant submitted an application for legal aid (Case T‑727/18 AJ) with a view to bringing this action. By order of 29 April 2019, ZW v EIB (T‑727/18 AJ, not published), the President of the General Court dismissed that application on the ground that the action for which the aid was sought appeared to be manifestly inadmissible.

8 On 22 May 2019, the applicant submitted a request for conciliation with a view to reaching an amicable settlement on the basis of Article 41 of the EIB Staff Regulations. On 12 June 2019, she sent the same request to the President of the EIB.

9 The applicant brought this action by document lodged at the Registry of the General Court on 17 June 2019. By separate document lodged at the Court Registry on 18 June 2019, she further requested that her action be declared admissible.

10 By separate document, filed at the Court Registry on 28 August 2019, the applicant lodged an application for interim measures, seeking suspension or extension of a number of time limits on account of events occurring after the action had been brought and that the production of several documents be ordered. By order of 20 September 2019, ZW v EIB (T‑727/18 R, not published, EU:T:2019:686), the President of the Court dismissed that application.

11 On an application made by the applicant under Article 66 of its Rules of Procedure, the General Court omitted the applicant’s name and other information concerning her from the public version of the present order.

– order the EIB to pay her, on a monthly basis from June 2017 until the age of her retirement, the amounts corresponding to the salaries and allowances which she would have received if she had been appointed to the post at issue, with interest;

– stay these proceedings pending a ruling on the admissibility of the present action, on the basis of Article 69(c) of the Rules of Procedure;

– refer the examination of the admissibility of the action to the Grand Chamber;

– allow her to modify her application at the end of the amicable settlement procedure established by the EIB, pursuant to Article 86(1) of the Rules of Procedure;

– adopt measures of inquiry for the production of several documents and the inspection of EIB electronic databases making it possible to verify the authenticity of some of those documents;

– order the EIB to take all the necessary measures to comply with the annulling judgment to be given;

– suspend these proceedings until the EIB has adopted those measures and their legality has been reviewed, where appropriate, following the modification of the application.

14 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.

15 In the present case, the Court considers that it has sufficient information from the documents before it and decides, pursuant to that article, to give its decision without any need to propose to the plenum that the present case be referred to the Grand Chamber and without taking further steps in the proceedings.

16 As regards, in the first place, the application for annulment of the contested decision, it should be recalled that Article 41 of the Staff Regulations of the EIB, which is applicable to these proceedings (see, by analogy, as regards the application of Article 91 of the Staff Regulations of Officials to candidates for EU civil service competitions, judgment of 31 March 1965, Vandevyvere v Parliament, 23/64, EU:C:1965:31, p. 214), provides, in the first paragraph thereof, that ‘any proceedings … in respect of an action of the [EIB] which would [have an adverse effect] must be brought within three months’. According to the second and third paragraphs of that provision, ‘an amicable settlement shall be sought, prior to the institution [of proceedings before the General Court], before the [EIB]’s Conciliation Board’, that ‘request for conciliation [having to] be made within three months of the day of the occurrence of the facts or of the notification of the actions giving rise to the dispute’.

17 In the present case, the complaint lodged by the applicant on 14 March 2017 in the context of the EIB Complaints Mechanism (‘the complaint before the EIB’) was rejected on 23 May 2017 (see paragraphs 3 and 4 above) and the application for legal aid was lodged on 6 December 2018, that is to say more than 18 months after the decision rejecting the complaint before the EIB and, therefore, outside of the three-month period laid down in the first paragraph of Article 41 of the Staff Regulations of the EIB. Thus, even if the complaint before the EIB may be equated with a request for conciliation under Article 41 of the Staff Regulations of the EIB and, consequently, the initiation of that conciliation procedure interrupted the period for bringing an action (judgment of 6 March 2001, Dunnett and Others v EIB, T‑192/99, EU:T:2001:72, paragraph 56), the application for legal aid was submitted out of time and could not have the effect of suspending the period for bringing an action, as laid down in Article 147(7) of the Rules of Procedure (order of 29 April 2019, ZW v EIB, T‑727/18 AJ, not published, paragraph 14).

18 Moreover, neither the lodging in the present case by the applicant of a complaint before the Ombudsman nor the lodging of a request for conciliation under Article 41 of the Staff Regulations of the EIB permits the inference that the period for bringing an action was suspended or interrupted in such a way as to render this action admissible.

19 As for the complaint before the Ombudsman, lodged on 5 July 2017 and rejected on 11 October 2018 (see paragraphs 5 and 6 above), it should be recalled that, pursuant to Article 2(6) of Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15), as amended, complaints submitted to the Ombudsman are not to affect time limits for appeals in judicial proceedings (order of 29 April 2019, ZW v EIB, T‑727/18 AJ, not published, paragraphs 15 and 16; see also, to that effect, orders of 7 December 2004, Internationaler Hilfsfonds v Commission, C‑521/03 P, not published, EU:C:2004:778, paragraph 49, and of 30 March 2000, Méndez Pinedo v ECB, T‑33/99, EU:T:2000:94, paragraph 26). Since the unlawful nature of that provision of Decision 94/262 was pleaded by the applicant only after the application was lodged, in her request that her action should be declared admissible (see paragraph 9 above), moreover in a document not provided for by the Rules of Procedure and, in any event, without the arguments relied on in support of the plea having been so relied on coherently and intelligibly (see, to that effect, order of 30 March 2000, Méndez Pinedo v ECB, T‑33/99, EU:T:2000:94, paragraph 27), it cannot be examined, or a fortiori upheld.

20 Consequently, even though the complaint with the Ombudsman was lodged shortly after the complaint before the EIB was rejected, it cannot be taken into account for the purposes of assessing whether the period for bringing an action was complied with in the present case.

21 As for the request for conciliation under Article 41 of the EIB Staff Regulations, submitted on 22 May and reiterated on 12 June 2019 (see paragraph 8 above), it should be pointed out that more than two years elapsed between the date of the contested decision and the date of that request, whereas Article 41 of the EIB Staff Regulations provides that a request for conciliation must be made within three months of the notification of the contested act (see paragraph 16 above).

22 Thus, even if the amicable settlement procedure before the EIB’s Conciliation Board governed by Article 41 of the EIB Staff Regulations is also applicable to candidates for competitions organised by the EIB who are not EIB staff members, that procedure was, in any event, initiated out of time in the present case (see, to that effect, order of 26 September 2019, ZW v EIB, T‑447/19 AJ, not published, paragraph 20). It follows that the applicant cannot rely on the initiation of that procedure to prevent her action being time-barred.

23 It follows from all the foregoing that the application for annulment of the contested decision is manifestly out of time and must therefore be declared manifestly inadmissible.

24 As regards, in the second place, the claim for compensation for the damage alleged by the applicant, it is necessary to recall the settled case-law according to which, where a claim for compensation is closely related to a claim for annulment which has itself been rejected as inadmissible, the claim for compensation is also inadmissible (see judgment of 9 April 2019, Aldridge and Others v Commission, T‑319/17, not published, EU:T:2019:231, paragraph 64 and the case-law cited).

25 In the present case, it is apparent from the application that the claim for compensation is based on the unlawful acts allegedly vitiating the contested decision, with the result that that claim can be regarded as being closely related to the application for annulment of that decision (order of 29 April 2019, ZW v EIB, T‑727/18 AJ, not published, paragraph 22).

26 The claim for compensation for the damage allegedly suffered must therefore be rejected as manifestly inadmissible.

27 It follows moreover that the request to modify the application in order to take account of the outcome of the conciliation procedure under Article 41 of the EIB Staff Regulations, which had not yet been concluded on the date on which this action was brought, must also be rejected. Even irrespective of the fact that that request was not submitted by a separate document, contrary to the requirements of Article 86(3) of the Rules of Procedure, it should be borne in mind that, since the admissibility of an action must be assessed at the time when it is brought, an applicant can be allowed to adapt the form of order sought and pleas, so as to cover new acts supervening during the proceedings, only in so far as its application for annulment of the act initially challenged was itself admissible on the date on which it was brought (orders of 20 November 2012, Shahid Beheshti University v Council, T‑120/12, not published, EU:T:2012:610, paragraph 57, and of 11 March 2016, Consorzio Vivaisti viticoli pugliesi and Negro Daniele v Commission, T‑436/15, not published, EU:T:2016:147, paragraph 17). It thus follows from the inadmissibility in the present case of the application for annulment that the request for modification is itself inadmissible.

28 Consequently, this action must be dismissed in its entirety as manifestly inadmissible, without it being necessary to serve it on the EIB and without it being necessary to order the measures of inquiry requested by the applicant. Nor, therefore, is there any need to grant the application for suspension submitted by the applicant pending a decision on the admissibility of this action, or the application seeking that the EIB be ordered to take the measures implied by a judgment annulling the contested decision and that the proceedings be suspended pending the adoption of those measures.

29 Since the present order has been adopted before service of the application on the EIB, and therefore before the EIB could have incurred costs, it is sufficient to decide that the applicant must bear her own costs, in accordance with Article 133 of the Rules of Procedure.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ZW v EIB (Action for annulment and for damages - Civil service - Order) [2019] EUECJ T-727/18_CO (21 November 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/T72718_CO.html Cite as: [2019] EUECJ T-727/18_CO, EU:T:2019:809, ECLI:EU:T:2019:809

Court of Justice of the European Communities (including Court of First Instance Decisions)