PD v EIB (Staff Regulations of officials and Conditions of Employment of other servants - Psychological harassment - Judgment) [2018] EUECJ T-615/16 (04 October 2018)

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(Civil service — Personnel of the EIB — Psychological harassment — Total and permanent disability — Application for recognition of the occupational origin of a disease — Action brought before the closure of the procedure for recognition of the occupational origin of a disease — Inadmissibility)

European Investment Bank (EIB), represented by T. Gilliams and G. Faedo, acting as Agents, and by A. Dal Ferro, lawyer,

ACTION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, in essence, an order that the EIB compensate the applicant for the harm which the applicant allegedly suffered as a result of psychological harassment at the hands of his line manager and the failure on the part of the EIB to take appropriate measures to address that situation and to protect his health,

composed of D. Gratsias, President, A. Dittrich and P.G. Xuereb (Rapporteur), Judges,

1 The applicant, PD, was employed by the European Investment Bank (EIB) and performed his duties in the EIB’s offices in Luxembourg (Luxembourg) where he worked from [confidential] (1) 2007 to [confidential] 2009.

2 On [confidential] 2009, following an internal recruitment procedure, the applicant was transferred to the offices of the EIB in Brussels (Belgium) where he joined the [confidential] unit of the [confidential] Department. Mr X was his direct line manager within the [confidential] Unit, and Mr Y was the Director of the [confidential] Department, and therefore Mr X’s line manager.

3 By email of 13 March 2012, the applicant contacted the Secretary General of the EIB requesting a confidential discussion with him concerning an ‘issue he was facing in the workplace’ stating that he had tried, unsuccessfully, to settle the matter with Mr Y, the line manager of his direct line manager.

4 By email of 26 March 2012, the applicant sent a similar request to the Director of Human Resources of the EIB.

5 By email of 2 April 2012, in order to prepare for the meeting with the Director of Human Resources planned for the following day, the applicant sent him, as an attachment, a document entitled ‘Confidential Note’, concerning ‘whistleblowing against serious harassment issues in the [confidential] Unit’ (‘the whistleblowing note’). In that note, the applicant brought to the attention of the EIB’s management conduct on the part of Mr X towards members of staff which he considered to be unacceptable. He also requested the EIB’s protection.

6 On 3 April 2012, a meeting was held between the Director of Human Resources and the applicant.

7 By email of 4 April 2012, the Director of Human Resources wrote the following to the applicant, referring to the whistleblowing note and to their meeting of 3 April 2012:

‘I would like to confirm that [the Human Resources Department] has taken careful note of all the elements you have put forward with regard to the situation in the [confidential] Unit. [The Human Resources Department] will therefore, jointly with the management of [the General Secretariat/Legal Service], undertake suitable and timely steps to address the situation, and to help staff voice their concerns.’

8 By emails of 7 and 16 May 2012, the applicant sent the whistleblowing note to the Secretary General of the EIB and to the new Director of Human Resources.

9 By email of 16 May 2012, the new Director of Human Resources informed the applicant that he, or the Secretary General, as the case may be, would revert to him on the matter.

10 By email of 4 June 2012, Ms Z, a member of the personnel unit responsible, inter alia, for conflict management at the EIB, contacted the applicant and informed him that the new Director of Human Resources had asked her to address the conflicts and issues at the Brussels office of the EIB which he had reported. She informed the applicant that she wished to meet him in Brussels, along with Mr X, his line manager, in order to have an understanding of the situation and to determine the kind of support she could offer.

12 By email of 26 June 2012, Ms Z offered to arrange one or several meetings with the applicant, Mr X and an external coach or mediator, and, if requested by the applicant or Mr X, with a staff representative present.

13 By email of 28 June 2012, the applicant replied to Ms Z, stating that he was in favour of and available to attend such meetings in the presence of a mediator.

15 As of 29 June 2012, the applicant was temporarily placed under the supervision of Mr Y, Mr X’s line manager.

16 On 28 February 2013, a meeting was held between Ms Z, the applicant and Mr X.

17 In October 2013, the applicant was transferred to the Operations Directorate of the EIB in Luxembourg. As part of his new duties the applicant was responsible for ensuring liaison with the Brussels office of the EIB. According to the applicant, in view of the fact that he was responsible for ensuring liaison with Mr X, the harassment continued.

18 From August 2014 onwards the applicant was repeatedly on sick leave. Following the procedure laid down in Article 33b of the Staff Regulations of the EIB, approved on 20 April 1960 (‘the EIB Staff Regulations’), and in paragraph 11 of the Staff Rules adopted in order to implement the EIB Staff Regulations (‘the Staff Rules’), the applicant was invited to a medical examination, given that he had accumulated absences in excess of 18 months over a period of four years for the same illness.

19 On 16 December 2015, the applicant was examined by the EIB’s medical officer.

20 On 25 December 2015, the EIB’s medical officer sent his medical report to the EIB. In that report he stated that in his opinion it was out of the question that the applicant could work again at the EIB and proposed that the applicant’s total disability be recognised.

21 By letter of 13 January 2016, the Personnel Directorate of the EIB confirmed to the applicant that, in view of the recommendations of the EIB’s medical officer, the President of the EIB had approved the recognition of total disability with effect from 1 February 2016.

22 On 28 January 2016, the applicant sent a letter to the President of the EIB seeking clarification of the letter of 13 January 2016.

23 By letter of 3 February 2016, the Personnel Directorate of the EIB responded by providing additional clarification. By email of 9 February 2016 the Personnel Directorate of the EIB provided further clarification in response to another letter from the applicant of 4 February 2016.

24 By letter of 18 March 2016, the applicant sent to the President of the EIB a list of questions concerning the entitlements and administrative consequences arising from the recognition of total disability.

25 In a letter of 22 March 2016 to the President of the EIB and the insurance company, AXA Belgique SA (‘AXA’) — with which the EIB, pursuant to Article 33a of the EIB Staff Regulations, took out an insurance policy against occupational or private accidents and occupational diseases, number 730.326.260 — the applicant stated that his total and permanent disability was due to an occupational disease which originated from the failure on the part of the EIB to adopt appropriate and proportionate measures to protect him against a work environment which he considered to be dysfunctional and harmful, despite his repeated requests and the deterioration in his health. The applicant also claimed that he had suffered loss, in particular in relation to loss of salary, career advancement, entitlements and benefits, as a result of his admission to the total and permanent disability scheme, and asked that that loss be remedied. More specifically, the applicant asked the President of the EIB to confirm that the EIB undertook to indemnify him for the harm suffered and to compensate all the losses which he had incurred or the part of those losses which would not be indemnified by AXA under insurance policy number 730.326.260.

26 By a first letter of 14 April 2016, the Personnel Directorate, on behalf of the President of the EIB, replied to the applicant’s questions in his letter of 18 March 2016. In particular, the Personnel Directorate informed the applicant that, since he had been placed on total and permanent disability and was thereby in receipt of a disability pension, he was no longer eligible for benefits which, in accordance with the EIB’s rules, could be granted only to staff members in active service.

27 By a second letter of 14 April 2016, the Personnel Directorate replied to the applicant’s letter of 22 March 2016, explaining the nature of the disability pension which was paid to him and rejecting the argument that the EIB should pay him the difference between that pension and the amount of his full salary as an active member of staff. The EIB also reminded him that, in accordance with his request, AXA had initiated the specific procedure, provided for in the insurance policy, in order to determine whether and to what extent the origin of his disease was occupational.

28 By a letter dated the same day, addressed to the President of the EIB, the applicant made a request for the conciliation procedure under Article 41 of the EIB Staff Regulations concerning the bank’s refusal, set out in its second letter of 14 April 2016, to indemnify him for the losses which he had incurred as a result of his admission to the total and permanent disability scheme. In that letter, he claimed, in particular, that the deterioration in his health and, as a consequence, the fact that he was placed on disability had been caused by the harassment which he had suffered at the EIB and by the EIB’s failure to take appropriate measures in respect of him to rectify the situation. Therefore, he claimed that the EIB had to indemnify him for the non-material harm, consisting in the deterioration in his health, and the material harm, consisting in the loss of salary, career advancement, entitlements and benefits connected with his status as an active member of staff of the EIB due to his admission to the total and permanent disability scheme.

29 On 29 June 2016, the President of the EIB rejected the applicant’s request for the conciliation procedure. He reiterated that there was no possibility of the EIB paying the difference between the salary which the applicant would have received if he had stayed in active service and his disability pension. Referring to the applicant’s assertion in the letter of 14 April 2016 that the deterioration in his health was caused by the harassment suffered and by the EIB’s failure to take appropriate measures to remedy that situation, the President of the EIB replied stating that the harassment alleged by the applicant had never been confirmed. He added that it was for AXA, and not the EIB, to determine whether the origin of the applicant’s disease was occupational and that, if it were proven, following the procedure initiated by AXA, that the origin of the applicant’s disease was occupational, the applicant was entitled to be indemnified under the insurance policy which the EIB had taken out with AXA. He also indicated that the EIB was not, however, required to add to any compensation which AXA might pay to the applicant under that procedure. Finally, the President of the EIB concluded that, since AXA had still not decided on the request asking it to determine whether the origin of the applicant’s disease was occupational, and there was therefore no final decision in that regard, the applicant’s request for conciliation was unfounded and had to be rejected. The President of the EIB added that, if AXA concluded that the origin of the applicant’s disease was occupational, the latter retained the right to request a conciliation procedure.

30 By application lodged at the Registry of the European Union Civil Service Tribunal on 17 August 2016, the applicant brought the present action. The action was registered as Case F‑45/16.

31 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016. The case was registered under number T‑615/16 and assigned to the Fifth Chamber.

32 On 7 February 2018, by a measure of organisation, the Court asked the parties to reply in writing to a number of questions. They complied with this request on 22 February and 12 March 2018.

33 By letter lodged at the Court Registry on 6 June 2018, the applicant submitted new evidence. Pursuant to Article 85(4) of the Rules of Procedure of the General Court, the EIB was given the opportunity to comment on that evidence, which it did within the time limit prescribed.

34 Under Article 106(3) of the Rules of Procedure, if no request for a hearing has been submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, the General Court may decide to rule on the action without an oral part of the procedure. In the present case, since the Court considers that it has sufficient information available to it from the material in the file, it has decided, in the absence of such a request, to give a decision on the action without an oral part of the procedure.

– order the EIB to compensate him for the material harm suffered as a result of the allegedly unlawful conduct on the part of the EIB, that is to say, either the entire compensation for the harm suffered, or partial compensation for that harm, in the event that AXA should partially reimburse him;

– order the EIB to pay the sum of EUR 150 000 in damages for the non-material harm which he suffered;

– order the EIB to reimburse all future medical and psychological monitoring costs related to the health issues developed following the severe stress described in the application and not reimbursed by the EIB’s health insurance scheme;

– order the EIB to reimburse all medical and psychological monitoring costs incurred to date, related to the health issues developed following the severe stress described in the application and not reimbursed by the EIB’s health insurance scheme;

– order the EIB to pay his legal fees for the present proceedings, provisionally assessed in sum of EUR 30 000;

– if it proves necessary, and before making its ruling, appoint a medical expert or a remuneration and compensation expert to determine or calculate the non-material harm suffered or the amount of the financial loss incurred, as described in the application.

– dismiss all the claims made in the application as inadmissible and unfounded;

37 It is clear from the initial part of the application that the present action is directed ‘against’ three letters from the EIB (together, ‘the three letters’), that is to say:

– the letter from the Personnel Directorate of the EIB of 3 February 2016, read in conjunction with an email from that directorate of 9 February 2016, declaring that the applicant’s disability is total and permanent and confirming that he will receive a disability pension for a total and permanent disability with effect from 1 February 2016;

– the second letter from the Personnel Directorate of the EIB of 14 April 2016 in which that directorate informed the applicant that it rejected the argument that the EIB is obliged to indemnify him in full for material losses and that, therefore, it refused to indemnify his material losses;

– the letter from the President of the EIB of 29 June 2016 in which he declared, inter alia, that the applicant’s request for the conciliation procedure was unfounded, since AXA had not made a final decision concerning his request for recognition of an occupational disease and that the applicant’s request for conciliation was rejected.

38 However, it is clear from the rest of the application and, in particular, the forms of order sought, listed in the application and reproduced in paragraph 35 above, that the applicant does not seek the annulment of those three letters.

39 In addition, although it is true that the applicant repeatedly claimed in the application that the fact that the EIB recognised his total and permanent disability, with effect from 1 February 2016, had caused him material losses, he did not, however, claim that the three letters were unlawful and, a fortiori, did not explain the reasons why those letters were, in his opinion, vitiated by any irregularity, or which rule of law the EIB had infringed by issuing those letters.

40 The fact that the applicant does not intend to rely on the losses allegedly incurred as a result of those three letters is confirmed by the fact that the first part of the application, entitled ‘The faults (illegality of administrative act/[behaviour] reproached) committed by the European Investment Bank towards [the applicant] in the framework of moral harassment allegations of the latter’, is divided into three subsections entitled, respectively, ‘Noxious and hostile working environment created by unacceptable [behaviour] towards [the applicant]’, ‘Absence of adequate reaction from the EIB by taking appropriate measures’ and ‘Liability of EIB for not having taken appropriate measures of protection of [the applicant’s] health’. That is also confirmed by the fact that, in the second part of the application entitled ‘The moral damage and consecutive material and financial damage suffered [by the applicant] as a consequence of the moral harassment allegations [made by the applicant] (causality link) and failing of the [EIB] to protect [the applicant]’, when relying on the ‘EIB’s faults’, the applicant refers only to the incidents of harassment and the failure on the part of the EIB to take appropriate measures to address that situation and to protect his health.

41 Thus, it is clear from the application that the applicant does not criticise the EIB for placing him on total and permanent disability, but the conduct which led to his being placed on disability.

42 Therefore, by the present action, the applicant seeks compensation for harm allegedly suffered as a result of, first, the psychological harassment by his line manager and, secondly, the failure on the part of the EIB to take appropriate measures to address that situation and to protect his health.

43 The EIB disputes the admissibility of the action. It contends, inter alia, that the application is inadmissible on the ground that the bank did not adopt any measure which adversely affected the applicant. He never identified precisely the three letters which he wished to challenge. The three letters which he claims he wished to challenge on the first page of his application are not measures which adversely affected him. The EIB also claims that, even if Article 41 of the EIB Staff Regulations does not require members of staff to challenge a measure of the EIB which adversely affects them, such a requirement is implied by the case-law. Moreover, in the opinion of the EIB, although Article 41 of the EIB Staff Regulations did not require a member of staff to seek a conciliation procedure before bringing a claim before the Court, the applicant had to wait for a measure which genuinely affected him adversely before seeking conciliation and before commencing proceedings before the Court. The EIB also contends that, if no application to annul a measure which adversely affects the applicant is submitted — since that measure does not exist — then no related claim for damages may be filed.

44 The EIB also submits that the applicant was not informed of any decision taken by AXA concerning the possible occupational origin of his disease and contends that the application is therefore inadmissible, because it is premature. In that regard, the EIB relies on the case-law applicable to officials and other servants coming under the scope of the Staff Regulations of Officials of the European Union (‘the EU Staff Regulations’), according to which an action by which an official seeks compensation for the harm allegedly suffered as a result of his occupational disease, brought before the procedure for recognising the occupational origin of the disease under Article 73 of the EU Staff Regulations, which, according to the EIB, corresponds to Article 33a of the EIB Staff Regulations, has been concluded, is premature, since it was not possible, at the stage at which the legal proceedings were brought, to assess the appropriate compensation to which the official was entitled. In addition, in its replies to the written questions asked by the Court, the EIB stated that the circumstances of the present case were different from the circumstances of the case which gave rise to the judgment of 10 December 2008, Nardone v Commission (T‑57/99, EU:T:2008:555) in which the Court had derogated from the rule that a claim for compensation for harm caused by an occupational disease was premature where the compensation procedure under the Staff Regulations had not come to a close. In that regard, the EIB contends, inter alia, that the procedure for recognising the applicant’s occupational disease is progressing within what may be regarded as a reasonable time and that the close of the procedure is expected very soon. The EIB also stated in its replies to the Court’s questions that the compensation which, depending on the circumstances, will be paid by AXA in the event that it recognises the occupational origin of the disease could cover all forms of harm, impairment and physical, mental, personal, non-material, material or financial consequences which the applicant might have suffered as a result of that disease.

45 The applicant claims that the EIB Staff Regulations do not require a member of staff of the EIB to challenge a measure which adversely affects him in order for his claim to be admissible before the Court. In addition, he claims that, in the three letters, the EIB clearly adopted positions which affected his interests and which changed his legal situation.

46 The applicant also claims that the EIB should compensate him for harm suffered, irrespective of any reimbursement by AXA. In that regard, he argues that he, like any other member of staff of the EIB, is a third party to the insurance policy concluded between the EIB and AXA. Therefore, the interactions and negotiations between the EIB and AXA should not affect the staff members and those staff members should not therefore be affected by the adequacy of the procedures or the responsiveness or the level of compensation offered by AXA, which was selected unilaterally by the EIB without staff members being consulted or giving their consent, and whose contractual relationship with the EIB may be modified or interrupted at any time by the EIB or by AXA without any involvement of the staff members. In addition, the applicant states that it was he, and not the EIB, who took the initiative to contact AXA and that, to date, he still has not been informed of the information which the EIB communicated to AXA and therefore has not been able to verify whether that information was complete and accurate. The applicant claims that he was not required to await AXA’s conclusions since it does not fall to AXA to offer compensation in full and that such an offer should have come from the EIB’s appointing authority. In addition, in his replies to the written questions asked by the Court, the applicant submits that, in the present case, the Court should derogate from the rule that a claim for compensation for harm caused by an occupational disease is premature where the compensation procedure under the Staff Regulations has not come to a close. According to the applicant, refusing to apply any derogation to that rule would unreasonably delay any possibility of his being compensated for the harm caused by the EIB’s unlawful conduct. He stated in that regard that the events giving rise to his claim started in 2010 and lasted six years, and that the EIB is responsible for not informing AXA sooner. Finally, he states that the procedure before AXA has been ongoing since at least 2016, which is an excessive delay.

47 It should be recalled that the applicant seeks compensation for harm suffered as a result of conduct attributable to the EIB, that is to say, first, the psychological harassment by his line manager and, secondly, the failure on the part of the EIB to take appropriate measures to address that situation and to protect his health.

48 It should be recalled that, since the applicant was recruited in 2007, the EIB Staff Regulations applicable to the present case are those approved on 20 April 1960. It is not apparent from Article 41 of those regulations that the admissibility of an action brought before the General Court against the EIB is conditional upon there being an adverse measure.

49 In addition, it has already been held that the admissibility of an action for compensation brought by a member of staff of the EIB could not be made conditional on the prior submission to the bank of a request for compensation or on the existence of an adverse measure to which it would be possible to attach the claim for compensation (judgment of 10 July 2014, CG v EIB, F‑115/11, EU:F:2014:187, paragraph 112).

50 The order of 18 December 2015, De Nicola v EIB (F‑128/11, EU:F:2015:168), relied on by the EIB in support of its argument that it follows implicitly from the case-law that the admissibility of an action against the EIB is conditional on there being an adverse measure, is not relevant to the present case. In fact, all that is apparent from that order is that the existence of an adverse measure is a condition for the admissibility of an annulment action. By contrast, it is not apparent that it concerns a condition for the admissibility of a claim for compensation.

51 It is necessary, however, to determine whether, as the EIB contends, the applicant’s claims for damages are premature on the ground that the procedure for recognising the applicant’s occupational disease has not come to an end.

52 It must be noted that, as regards officials and agents subject to the EU Staff Regulations, Article 73 of those regulations provides for lump-sum compensation in case of accident or occupational disease, without there being any need for the person concerned to prove any fault on the part of the institution.

53 It has been held that an official who was the victim of an occupational disease was only entitled to claim further compensation in accordance with the general law when the staff insurance scheme laid down in Article 73 of the EU Staff Regulations did not allow appropriate compensation to be paid. Thus, any benefits received under the EU Staff Regulations must be taken into account for the purposes of assessing the harm eligible for reparation, since they compensate for the same harm as that for which compensation is sought in the action for damages brought on the basis of a fault capable of giving rise to the liability of the institution. That case-law, which is designed to prevent officials from receiving double compensation, establishes a rule of law that is systematically applicable, in respect of which, in principle, no exception or derogation is allowed (see judgment of 10 December 2008, Nardone v Commission, T‑57/99, EU:T:2008:555, paragraphs 53 and 54 and the case-law cited).

54 It has also been held that it was only when the compensation provided by the staff insurance scheme for the harm suffered by the official was insufficient that the official was entitled to apply for additional compensation (see judgment of 13 January 2010, A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 152 and the case-law cited).

55 Consequently, an action by which an official seeks compensation for the harm allegedly suffered as a result of his occupational disease, brought before the procedure under Article 73 of the EU Staff Regulations has been concluded, was held to be premature, since it was not possible, at the stage at which the legal proceedings were brought, to assess the appropriate compensation to which the official was entitled under the staff insurance scheme (see judgment of 13 January 2010, A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 153 and the case-law cited).

56 In most cases, a medical report is required in order to establish a causal link between working conditions and the harm claimed and to assess the harm itself, so that it would make no sense, and indeed may even be impossible, for the courts to determine the causal link and the harm before the procedure under Article 73 of the EU Staff Regulations has been concluded (judgment of 13 January 2010, A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 156).

57 Thus, as is settled in the case-law, an official’s claim for compensation for the material and non-material harm caused to him by an occupational disease is not generally admissible until the procedure under Article 73 of the EU Staff Regulations has been concluded (judgment of 13 January 2010, A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 151).

58 By contrast, compensation for non-material damage which is not based on harm to health, such that it cannot be considered a priori that full reparation can be made in the context of the procedure for recognising the occupational origin of the disease is admissible irrespective of the state of any procedure also commenced by the official under Article 73 of the EU Staff Regulations (see, to that effect, judgment of 13 January 2010, A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paragraphs 144 and 150).

59 The case-law cited in paragraphs 53 to 58 above which is aimed at avoiding double compensation for the same harm applies by analogy to a dispute between the EIB and its staff since Article 33a of the EIB Staff Regulations, read in conjunction with Article 9.1.1 of the Staff Rules, contains rules similar to those in Article 73 of the EU Staff Regulations. It is true that the procedure for recognising the occupational origin of the disease laid down in Article 33a of the EIB Staff Regulations, read in conjunction with paragraph 9.1.1 of the Staff Rules, is different from the procedure laid down in Article 73 of the EU Staff Regulations in that it is not the appointing authority of the institution or body of the European Union at issue which makes the decision relating to the recognition of the disease, but the insurance company with which the EIB has taken out an insurance policy against occupational diseases, that is to say, AXA, and that the applicant is a third party to the contract concluded by the EIB and AXA. However, whether the decision is taken by the appointing authority of the institution or body of the European Union or by AXA, in either case, it is not possible to assess the appropriateness of the compensation claimed by the person concerned as long as the procedure for recognising the occupational disease has not come to a close and the amount of compensation to which that person is entitled under the occupational disease cover has not been set.

60 In the present case, the applicant, by letter of 22 March 2016 addressed both to the President of the EIB and to AXA, sought compensation for the loss of salary, career advancement, entitlements and benefits as a result of his admission to the total and permanent disability scheme, whilst claiming that his situation was the result of an occupational disease which occurred when he was working at the EIB and that that procedure was still pending before the insurance company.

61 The applicant’s request to AXA, although more general than the request submitted to the Court, covers the same material losses as those for which the applicant claims compensation before the Court.

62 In addition, it should be pointed out that it follows from the actual wording of the first head of claim — by which the applicant requests that the Court order the EIB to compensate him for the material losses incurred as a result of the allegedly unlawful conduct on the part of the EIB, that is to say, either total compensation for the losses incurred, or partial compensation for those losses in the event that AXA partially reimburses him — that he himself considers that AXA may indemnify him for the same material losses as those which he seeks to have compensated before the Court.

63 Furthermore, as regards the second head of claim by which the applicant asks the Court to order the EIB to pay the sum of EUR 150 000 in damages for the non-material harm which he suffered, it should be pointed out that what the applicant qualifies as ‘non-material harm’ consists in the deterioration of his health, both physical and psychological. That interpretation is apparent, in particular, from heading 1 on page 22 of the application entitled ‘Moral damage of [the applicant: the applicant’s] state of health deterioration’ and paragraphs 122 to 127 of the application.

64 However, it follows from paragraph 11 of the insurance policy taken out by the EIB that the calculation of the compensation which may be paid by AXA in the event of total and permanent disability takes account of physical or psychological harm.

65 Therefore, even if, in his letter addressed to AXA, the applicant referred only to his material losses, it is possible that the compensation which may be paid out by AXA will also take account of the ‘non-material harm’ relied on by the applicant before the Court.

66 In any event, assuming that the applicant also relies on non-material harm that is separate from the deterioration in his health, but nevertheless derived from it, it is necessary to determine the extent of the deterioration of the applicant’s health so that the Court may determine the extent of the non-material harm derived from it. Therefore, a medical report is required. Such a report is provided for in the procedure for recognising the occupational origin of the disease conducted by AXA. Thus, even in that situation, the second head of claim is inadmissible on the ground that it is premature.

67 In addition, contrary to what was the case in the judgment of 13 January 2010, A and G v Commission (F‑124/05 and F‑96/06, EU:F:2010:2), the applicant in the present case does not rely on non-material harm which is not derived from the damage to his health and which might therefore be regarded as being incapable of being indemnified in full by the insurance.

68 Finally, it should be pointed out that, although it is true that in the judgment of 10 December 2008, Nardone v Commission (T‑57/99, EU:T:2008:555) the Court derogated from the rule that it was necessary to await the outcome of the procedure for recognising the occupational origin of the disease, it did so only because of the exceptional circumstances of the case in which the application of that rule, which had been adopted in order to ensure the economy and speed of the proceedings, had actually led to a suspension of the proceedings before the Court of more than seven years and therefore to a delay that was held to be excessive. In addition, a medical report was not necessary to assess the non-material harm suffered by Mr Nardone as a result of his having worked in a dust-laden and unhealthy environment.

69 In the present case, contrary to what the applicant maintains, the duration of the procedure to obtain compensation cannot be regarded as excessive. In that regard, it should be pointed out that it is clear from the first paragraph of Article 10 of the insurance policy, a copy of which is given to every member of staff, that an insured who intends to request the recognition of an occupational disease must inform the EIB and the insurer of that request. Therefore, it is clear from those provisions that it is for the applicant, and not the EIB, to contact AXA. The applicant contacted AXA on 22 March 2016. It is clear from the answers given by the parties that the EIB sent AXA the report of the administrative enquiry provided for in Article 10 of the insurance policy and that the applicant was examined on 4 January 2018, as part of the procedure for recognising the occupational disease, by a medical officer who had to send his report to AXA. Therefore, the procedure for recognising the occupational disease does not justify a derogation from the rule that it is necessary to await the decision taken at the end of that procedure. In addition, a medical report was required in the present case.

70 It follows that the approach taken in the judgment of 10 December 2008, Nardone v Commission (T‑57/99, EU:T:2008:555) does not apply to the present case.

71 Finally, it should be pointed out that the argument that the EIB, in maintaining that the applicant’s request for conciliation and the present action are premature, aims to prevent him from asserting his rights within a reasonable period is unfounded.

72 It should be added that, if, at the end of the compensation procedure provided for in Article 33a of the EIB Staff Regulations, read in conjunction with paragraph 9.1.1 of the Staff Rules, the applicant is not satisfied with the conduct of that procedure or the amount which he may receive, he has, as the EIB points out in its defence, the opportunity to refer the matter to the EIB.

73 The first and second heads of claim for damages in respect of the material and non-material harm allegedly suffered by the applicant are therefore premature and inadmissible. That conclusion is not called into question by AXA’s letter of 30 March 2018, lodged by the applicant at the Court Registry on 6 June 2018, in which AXA, on the basis of the results of the administrative enquiry and the examination carried out by a doctor, confirms that the illness from which the applicant suffers originated mainly in his professional activity. As the applicant himself stated, the compensation which AXA will pay him is neither mentioned nor determined in that letter. The compensation procedure provided for in Article 33a of the EIB Staff Regulations, read in conjunction with paragraph 9.1.1 of the Staff Rules, may not therefore be regarded as closed.

74 In those circumstances, the Court considers that it is not necessary to appoint a medical expert or a remuneration and compensation expert in order to determine or calculate the amount of the financial loss incurred or the non-material harm suffered by the applicant, as the applicant requests in his sixth head of claim.

75 Finally, the Court rejects as inadmissible the third head of claim in which the applicant asks the Court to order the EIB to reimburse all future medical and psychological monitoring costs related to the health issues developed following the severe stress described in the application and not reimbursed by the EIB’s health insurance scheme and the fourth head of claim in which the applicant asks the Court to order the EIB to reimburse all medical and psychological monitoring costs incurred to date, related to the health issues developed following the severe stress described in the application and not reimbursed by the EIB’s health insurance scheme. In order to avoid double compensation, the Court may make a ruling only after AXA, and if appropriate those in charge of the EIB’s health insurance scheme, have made a decision on those claims for reimbursement. Moreover, it should be added that the applicant has not provided any evidence of the medical and psychological monitoring costs incurred to date which he seeks to have reimbursed and no information which would make it possible to calculate the future costs.

76 It follows from all of the foregoing that the action should be dismissed in its entirety as inadmissible.

77 Under 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. However, under Article 135(1) of the Rules of Procedure, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any costs.

78 In the present case, the applicant has failed in his pleas. However, in the letter of 29 June 2016, the Director of the EIB stated that the EIB was not required to add to any compensation which AXA might pay to the applicant at the end of that procedure for recognising his occupational disease. The assertion could have led the applicant to think that the decision concerning his claim for compensation was final as regards the EIB and that he may not obtain any additional compensation from the EIB. In the rejoinder, the EIB itself recognised that, in the event that the procedure for recognising the applicant’s occupational disease does not result in the losses incurred being compensated in full, there could be grounds for awarding a sum in addition to that awarded by AXA if proof of fault were provided. The ambiguous nature of the assertion made to the applicant in the letter of 29 June 2016 could therefore have prompted him to bring an action prematurely.

79 In those circumstances, the Court considers that it is appropriate to order that the parties should bear their own costs.

2. Orders PD and the European Investment Bank (EIB) to bear their own costs.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> PD v EIB (Staff Regulations of officials and Conditions of Employment of other servants - Psychological harassment - Judgment) [2018] EUECJ T-615/16 (04 October 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T61516.html Cite as: [2018] EUECJ T-615/16, ECLI:EU:T:2018:642, EU:T:2018:642

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