Action brought on 29 September 2020 — JD v EIB

(Case T-608/20)

(2020/C 433/71)

Language of the case: English

Parties

Applicant: JD (represented by: H. Hansen, lawyer)

Defendant: European Investment Bank (EIB)

Form of order sought

The applicant claims that the Court should:

—

annul the decision (i) requiring the applicant to sign an addendum to his employment contract waiving guaranteed benefits, and (ii) preventing the applicant from entering into the defendant’s service unless he sign said addendum, which manifested itself through (a) a letter from the defendant to the applicant dated 20 January 2020 but only sent by e-mail of 23 January 2020, (b) an e-mail exchange between the defendant and the applicant between 29 January 2020 and 7 February 2020, and (c) a letter from the defendant to the applicant of 3 March 2020;

—	annul the decision upon administrative review, confirming the original decision, which manifested itself through a letter from the defendant to the applicant’s lawyer dated 18 June 2020 but only sent by e-mail of 19 June 2020;

—	thus, order the defendant to withdraw its letter dated 20 January 2020, its letter dated 18 June 2020, and the associated demand that the applicant sign the addendum in question as a precondition for entry into service;

—

rectify the medical certificate issued by the defendant’s occupational health practitioner, dated 10 January 2020, and sent to the applicant by e-mail on the same date, to the extent that it should not have included a clause according to which there exists a pre-existing medical condition which allegedly might give rise to invalidity in the future;

—	and order, principally, that the defendant provide the applicant with a viable possibility to enter into the service of the EIB, with retroactive remuneration and benefits as from the contractual date of entry into service, i.e. 1 February 2020, or, alternatively, award compensation as follows:

—	order the defendant to pay the applicant damages in the amount of four years’ salary, i.e. EUR 367 499,52;

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in any case, order the following compensation to be paid:

—	order the defendant to pay the applicant EUR 20 000 as non-material damages;

—	order the defendant to pay the applicant the amount of EUR 2 104,19 as compensation for removal expenses;

—	order the defendant to pay the applicant the amount of EUR 15 312,48 as compensation for the installation allowance which was not paid;

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in any case, order the defendant to pay the applicant EUR 15 000 as compensation for legal fees incurred with regard to advice received before the introduction of the present case, to the extent that said fees are not included in the costs recoverable by the applicant, the applicant expressly reserving his right to increase this head of claim in the course of the proceedings;

—	order that the costs shall be borne exclusively by the defendant; and

—	reserve any and all rights of the applicant.

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law.

First plea in law, alleging infringement of an essential procedural requirement.

—	It is argued that the occupational health physician’s medical certificate of 10 January 2020 contained personal data of the applicant, which went beyond what was required to be disclosed under the applicable regulatory framework.

Second plea in law, alleging infringement of a rule of law relating to the application of the Treaties.

—	It is argued that there was no legal basis for excluding the applicant from benefits or insurance coverage;

—	The applicant further argues that the defendant erroneously interpreted Article 6-1 of the Pension Scheme Regulations by applying an argument based on Article 32 of the Conditions of Employment of other Servants of the European Union;

—	In addition, it is argued that the defendant’s interpretation of Article 6-1 of the Pension Scheme Regulations is contradicted by (i) the history of the text and (ii) the defendant’s own communication with its staff.

Third plea in law, alleging infringement of a rule of law relating to the application of the Treaties.

—	By this plea, the applicant argues that there was no legal basis for the requirement imposed on him by the defendant to sign an addendum to the employment contract, under which he would have waived certain social security rights.

Fourth plea in law, alleging infringement of the Treaties and, in particular, various provisions of the Charter of Fundamental Rights of the European Union.

—	The applicant argues that the defendant’s behaviour is discriminatory and in breach of Articles 21(1) and 34(1) of the Charter;

—	The applicant’s procedural rights under Article 41 and his right to access documents under Article 42 of the Charter were infringed;

—	Furthermore, the applicant’s rights under the Charter to an effective remedy and a fair trial were also infringed.

Fifth plea in law, alleging infringement of an essential procedural requirement.

–	The applicant argues that the pre-employment medical assessment must be performed through an in-person medical assessment, which did not occur in the present case.

Sixth plea in law, alleging a further infringement of an essential procedural requirement.

—	It is argued that the contested confirmatory decision was taken by persons who purported to be acting upon delegation of the EIB President’s powers of review, when there was no legal basis for such delegation;

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In the alternative, assuming the EIB President had the possibility of validly delegating his review powers, the contested confirmatory decision must be annulled because it was taken by individuals who were in a situation of conflict of interests and thus not impartial. There was, thus, a breach of the principle of good administration and of the requirements flowing from Article 41 of the Charter.

Seventh plea in law, by which the applicant refers to the remedies sought by him in the present case.

—	The applicant requests, as his principal claim, the performance of his contract, i.e. that he be allowed to enter into the service of the defendant with retroactive payment of his salary;

—	Alternatively, the applicant requests that he be awarded damages equivalent to the amount of the salary for the fixed-term agreed between the parties;

—	In any case, i.e. independently of whether the Court grants the applicant’s principal or alternative claim for a remedy, the applicant requests that he be awarded damages for various heads of losses suffered because of the defendant’s behaviour and illegal decisions.