Case T‑134/19

AM

v

European Investment Bank

 Judgment of the Court (First Chamber), 10 March 2021

(Civil service – EIB staff – Remuneration – Admissibility – Time limit for submitting a request to initiate the conciliation procedure – Act adversely affecting an official – Geographical mobility allowance – Transfer to an external office – Refusal to grant the allowance – Action for annulment and for damages)

1.      Actions brought by officials – Staff of the European Investment Bank – Action against a decision ending a conciliation procedure – Effect – Disputed measure referred to the Court – Exception – Decision not confirmatory in character – Account taken of the reasoning therein

(Staff Regulations of the European Investment Bank, Art. 41)

(see paragraphs 29, 30, 33, 34)

2.      Actions brought by officials – Staff of the European Investment Bank – Act adversely affecting an official – Definition – Salary or pension statement reflecting a decision the subject matter of which is purely financial – Inclusion

(Staff Regulations of the European Investment Bank, Art. 41)

(see paragraphs 40-44)

3.      Officials – Staff of the European Investment Bank – Remuneration – Geographical mobility allowance – Conditions for granting – Refusal to grant to a staff member transferred to an external office of the Bank until the end of his contract – Unlawfulness – Grant subject to the return to the Bank’s headquarters – None

(see paragraphs 56, 58, 59, 61, 64, 65-71)

4.      Actions brought by officials – Staff of the European Investment Bank – Judgment annulling a measure – Effects – Obligation to implement – Judgment annulling a decision refusing to grant an allowance to a staff member – Claim by the applicant for compensation in respect of the material harm suffered – Premature nature of the claim

(Art. 266, first para., TFEU)

(see paragraphs 78, 79)

Résumé

The applicant, AM, was hired by the European Investment Bank (EIB) on 1 June 2014, on the basis of a one-year fixed-term contract, which was subsequently renewed twice. From the start of his first contract with the EIB and until 31 March 2017, he was assigned to the EIB’s external office in Vienna (Austria). With effect from 1 April 2017 and until the end of the contract he had at that time, that is to say 31 May 2020, the applicant was transferred to the EIB’s external office in Brussels (Belgium). On 30 June 2017, the EIB made a decision explaining that his transfer did not fall within the scope of the EIB’s Staff Rules (‘the Staff Rules’) and that, therefore, he was not entitled to receive the geographical mobility allowance. The EIB reiterated its refusal to pay that allowance to the applicant by a decision adopted further to a request by the applicant that a conciliation procedure be opened (together, ‘the contested decisions’). Furthermore, notwithstanding the fact that the EIB’s Conciliation Board found that the applicant should have received the geographical mobility allowance from 1 April 2017, the President of the EIB decided not to adopt that board’s findings, thus ending the conciliation procedure.

The Court, seised of an action for annulment and for damages, annuls the contested decisions and provides, for the first time, clarifications about the conditions for granting the geographical mobility allowance to EIB staff.

Assessment of the Court

First, with regard to the subject matter of the action, the Court observes that, for EIB staff who entered into service after 1 July 2013, the decision of the President of the EIB ending the conciliation procedure is merely a precondition for bringing the matter before the EU judicature. The Court takes the view, in that regard, that, like the case-law relating to disputes covered by the Staff Regulations of Officials of the European Union or by the European Central Bank’s Staff Rules, claims for annulment formally directed against the decision of the President of the EIB ending a conciliation procedure have the effect of bringing before the EU judicature the act adversely affecting the applicant that forms the subject matter of that procedure, except where the scope of that decision differs from that of the act forming the subject matter of the conciliation procedure. Where that decision contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original act, it is a measure subject to review by the EU judicature, which will take it into consideration when assessing the legality of the contested measure, or will even regard it as an act adversely affecting the applicant replacing the contested measure. Since that is not the case here, the Court concludes that there is therefore no need to rule specifically on that head of claim.

Next, with regard to the admissibility of the action, the Court rejects the EIB’s argument that the period to challenge the non-payment of the geographical mobility allowance ran from the date on which the applicant received his first salary statement following his transfer to the external office in Brussels. The Court observes, in that regard, that although it is true that the applicant’s salary statement for the month of April 2017 did convey, in financial terms, the effects of the decision to transfer him to the external office in Brussels, the fact remains that that decision, and still less that salary statement, did not clearly define the EIB’s position vis-à-vis the grant of the geographical mobility allowance. The omission of an allowance from the salary statement of the person concerned does not necessarily imply that the administration denies his or her entitlement to it.

Taking the view that the decision of 30 June 2017 is the first to set out clearly the EIB’s refusal to grant the geographical mobility allowance to the applicant, the Court concludes that that decision is the first act adversely affecting the applicant, which had the effect of setting time running for the purposes of the time limits for making a complaint and bringing an action.

Finally, with regard to the conditions for granting the geographical mobility allowance in the case of a transfer to an external office of the EIB within the European Union, the Court states that, under Article 1.4 of the Staff Rules, the grant of the geographical mobility allowance is subject to two cumulative conditions: first, the transfer to another place of employment within the European Union for a period of between one and five years and, second, the completion of at least twelve months’ service at the previous place of assignment.

Accordingly, the Court finds that that article does not contain any explicit reference to the condition of temporary assignment to an external office within the European Union, in accordance with which the staff member must return to the EIB’s headquarters at the end of the assignment in order to be eligible for the allowance at issue.

The Court explains, in that regard, that the return to the EIB’s headquarters, as provided for in Article 2 of Annex VII to the Staff Rules, represents not a condition for granting the geographical mobility allowance but merely the logical corollary to the end of the temporary assignment to an external office for staff members whose contract has not expired and who must return to the EIB’s headquarters at the end of that period.

In those circumstances, the Court states that not only can a transfer to an external office on the basis of the relevant Staff Rules not be considered, by definition, as permanent, since, from the outset, it is limited to the maximum duration provided for in those rules, but, even if a member of staff of the EIB is assigned to such an office for a period of time which ends at the same time as the end of his or her fixed-term contract, that member of staff is eligible for that allowance, provided that the satisfies the two cumulative conditions laid down in Article 1.4 of the Staff Rules.