KL v European Investment Bank (T-370/20)

Contents

Judgment of the General Court (Fourth Chamber)24 November 2021^note(Civil service — EIB staff — State of health — Fitness to work — Unjustified absence — Action for annulment — Definition of invalidity — Unlimited jurisdiction — Disputes of a financial character — Retroactive payment of the invalidity pension — Action for damages)In Case T‑370/20,KL, represented by L. Levi and A. Champetier, lawyers,vEuropean Investment Bank (EIB), represented by G. Faedo and M. Loizou, acting as Agents, and A. Duron, lawyer,THE GENERAL COURT (Fourth Chamber),composed of S. Gervasoni, President, P. Nihoul (Rapporteur) and R. Frendo, Judges,Registrar: L. Ramette, Administrator,having regard to the written stage of the procedure and following the hearing of 24 June 2021,gives the following

Judgment

Background to the dispute

1From 1997 to 2001, the applicant, KL, worked as an IT consultant for the European Investment Bank (EIB).

2From 1 September 2001, he was employed by the EIB on a permanent contract.

3After the applicant had several periods of absence, the EIB, by letter of 22 May 2017, informed him that A, the EIB’s medical officer (incapacity) recommended that he be regarded as suffering from partial temporary incapacity (equivalent to 50%) during a period of six months from 1 June 2017.

4By letter of 1 June 2017, the applicant contested A’s recommendation and requested a medical arbitration procedure to assess his alleged total incapacity for resuming his duties at the EIB.

5By letter sent to the applicant 9 October 2017, the EIB stated that the procedure requested was that provided for in Article 4 of Annex X to the administrative provisions applicable to EIB staff, adopted in implementation of the EIB Staff Regulations (‘the administrative provisions’), and informed him that it had appointed B, as an independent doctor, to conduct it.

6On 18 October 2017, the applicant had a meeting with B, who confirmed A’s opinion and informed the EIB and the applicant of his conclusion on 29 November and 11 December 2017 respectively.

7By letter of 14 December 2017, the EIB informed the applicant that discussions were underway to allow him to return to work part-time during a period of three months in a different position from the one he held, and that, between 1 January 2018 and his reinstatement, he would not have to go into the EIB.

8In a fax of 28 December 2017, the applicant’s legal adviser maintained that the procedure which should have been implemented was not medical arbitration, as provided for in Article 4 of Annex X to the administrative provisions, but that of the Invalidity Committee, provided for in Article 13-1 of the transitional pension scheme regulations applicable to EIB staff (‘the TPSR’). He therefore challenged the conclusions which the EIB intended to draw from the medical arbitration.

9By fax of 19 January 2018, the applicant’s legal adviser asked the EIB for the procedure before the Invalidity Committee to be implemented pursuant to Article 11.3 of the administrative provisions and Article 13-1 of the TPSR.

10In a letter of 7 February 2018, the EIB granted the applicant’s request and invited him to appoint a doctor to represent him on the Invalidity Committee and to send it that doctor’s report by 16 February 2018 at the latest, on the understanding that until the Invalidity Committee had delivered its opinion, the applicant would be regarded as suffering from total temporary incapacity.

11By fax of 28 March 2018, the applicant’s legal adviser informed the EIB that his client had appointed his personal physician, C, to represent him on the Invalidity Committee and that all the medical documents relating to the problem raised would be sent to that committee, as soon as it had been constituted.

12By fax of 24 April 2018, the applicant’s legal adviser sent the EIB a report from C concerning the contentious medical issues, for the Invalidity Committee.

13By letter of 26 October 2018, the EIB informed the applicant that the Invalidity Committee was composed of C, the doctor representing the applicant, A, the doctor representing the EIB, and D, the doctor appointed by agreement between the first two, who would preside over the Invalidity Committee in accordance with Article 13-1 of the TPSR. The EIB also invited the applicant to appear before the Invalidity Committee on 9 November 2018.

14By fax of 2 November 2018, the applicant’s legal adviser declined that invitation owing to his client’s state of health.

15In a letter of 6 November 2018, the EIB indicated to the applicant’s legal adviser that his client’s state of health was no reason for him not to appear before the Invalidity Committee, which, moreover, had been convened to assess that state of health at his client’s request.

16By letter of 14 November 2018, the EIB called the applicant to a meeting on 21 November 2018 only with Dr D, the Chairman of the Invalidity Committee, which the applicant attended.

17As is apparent from paragraph 15 of the rejoinder, on 21 December 2018, the EIB received from D a document signed by him, dated 18 December and entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’. It was worded as follows:‘Owing to his psychological problems, [KL] is unfit to return to his former post and to his former employer. He is therefore invalid in relation to the EIB, but not invalid in relation to the general labour market. The Invalidity Committee was unanimous on that point.’

18Furthermore, it is apparent from paragraph 16 of the rejoinder that, at the same time, D sent the medical department a full report, also dated 18 December 2018 and entitled ‘Medical evaluation of the Invalidity Committee of 9/11/2018’. That report contained the same conclusion as the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’.

19On 27 December 2018, the applicant sent a reminder to the EIB concerning the Invalidity Committee’s opinion. The EIB replied that it had not yet received that opinion.

20By letter of 8 February 2019, the EIB informed the applicant’s legal adviser that, on the previous 23 January, the Invalidity Committee had notified it of its decision, adopted unanimously, that his client was not invalid, and asked him to resume work from the following 18 February, after having contacted the Employee Relations and Well-being Division in order to discuss the conditions of his reinstatement. That letter enclosed three forms, entitled ‘Invalidity Committee decision’, in which the box ‘not invalid’ had been ticked. Two of those forms were dated 16 January 2019 and the third the following 23 January (‘the forms of 16 and 23 January 2019’). In that same letter of 8 February 2019, the EIB added that its medical department had received an additional document from D, which could be issued to the applicant on request.

21The decision contained in that letter of 8 February 2019 (‘the decision of 8 February 2019’), inasmuch as it declares the applicant fit for work and absent without justification from 18 February 2019, is the first decision contested in this action.

22By fax of 14 February 2019, the applicant’s legal adviser asked the EIB to send him the reasoned opinion of the Invalidity Committee, as referred to in Article 15-3 of the TPSR.

23In a letter of 8 March 2019, the EIB sent the applicant’s legal adviser the document, referred to in paragraph 17 above, entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’, explaining that it had interpreted that document as suggesting an arrangement by which the applicant should leave the EIB for good in exchange for a sum of money. Such an arrangement would have been possible under the Luxembourg Social Security system, but not within the legal framework of the EIB.

24Consequently, in the same letter, the EIB repeated that, in accordance with the Invalidity Committee’s decision declaring him not to be invalid, the applicant should have resumed work on 18 February 2019. It added that his absence would be regarded as unjustified in accordance with Article 3.4 of Annex X to the administrative provisions, so that the days during which he had not worked would be deducted from his annual leave.

25The decision contained in that letter of 8 March 2019, in which it declares the applicant fit to work and absent without justification since 18 February 2019 (‘the decision of 8 March 2019’), is the second decision contested in this action.

26In a fax of 29 March 2019 addressed to the EIB, the applicant’s legal adviser challenged the decisions of 8 February and 8 March 2019. Annexed to that fax was a medical certificate from C, dated 15 March 2019, in which he stated that ‘the unanimous opinion [of the Invalidity Committee], delivered in its conclusions of 9 November 2018, [was] that [the applicant was] invalid as regards a possible return to his job at the EIB’ and that, if he had correctly understood the form sent to the EIB, ‘he would have ticked the box ‟invalid” in reference to the EIB’.

27In a letter sent on 2 May 2019 to the applicant’s legal adviser, the EIB confirmed its decisions of 8 February and 8 March of that year.

28On 16 May 2019, after having requested it himself, the applicant received from D the document entitled ‘Medical evaluation of the Invalidity Committee of 9/11/2018’, together with a signed post-it note stating that the Invalidity Committee’s decision was indeed to declare him ‘invalid in relation to the EIB’.

29On 8 June 2019, the applicant requested the opening of a conciliation procedure pursuant to Article 41 of the Staff Regulations of the EIB (‘the EIB Staff Regulations’). That request referred to the decision of 8 March 2019, since it confirmed the decision of 8 February 2019, in that it declared that he was absent without justification from 18 February 2019 and applied Article 3.4 of Annex X to the administrative provisions by deducting the days on which he was absent without justification from his annual leave.

30By letter of 25 July 2019, the EIB agreed to the opening of such a procedure.

31From 1 August 2019, the applicant no longer received his salary, since his leave had been used up.

32On 12 September 2019, Dr C, in a letter to the applicant, explained that, first of all, he had ticked the box ‘invalid’, then, following contact with the EIB, which had told him that the other two doctors had ticked the box ‘not invalid’ and that he should do the same, he had changed his answer to ‘not invalid’, thinking that the form was going to serve as an indication that the applicant was not invalid in relation to the open labour market.

33In an email of 18 September 2019, D wrote to the applicant:‘The EIB entrusted me with a task which I consider I have discharged. The conclusion of the three doctors on the evaluation committee was invalidity in relation to the last place of work, that is to say the EIB, but not invalidity in relation to the open labour market, which is not synonymous with fitness to resume work at the EIB. The three doctors were of the opinion that you can no longer return to the EIB. That is clearly stated in my evaluation report and the conclusion [of the Invalidity Committee] (which, for reasons of medical confidentiality, contains only the last sentence of the evaluation report and not the medical diagnosis: the evaluation report was sent only to the EIB’s doctor). I have sent you both of those documents.I do not see how I can be even more specific. If the EIB management interprets that report and that conclusion in their own way, it will need to be clarified with them at a legal level. According to the evaluation report, you are invalid in relation to the last place of work.’

34By email of 27 November 2019, the applicant’s legal adviser claimed before the Conciliation Board that the EIB had erred in the application of the conclusions of the Invalidity Committee, by misinterpreting its own concept of invalidity, as it appeared in Article 46-1 of the TPSR, according to which invalidity had to be assessed in relation to the post occupied by the employee concerned at the EIB.

35On 20 January 2020, the chairperson of the Conciliation Board informed the President of the EIB that the conciliation procedure had failed.

36In a letter of 16 March 2020, the EIB noted the failure of the conciliation procedure and the Board’s conclusions to the applicant. The decision contained in that letter, in that it recognises the conclusions of the Conciliation Board and, consequently, confirms the decisions of 8 February and 8 March 2019, is contested, in so far as is necessary, in the present action.

37Between 18 February 2019 and 28 December 2020, the applicant submitted various medical certificates to justify his absences from work.

38On 12 June, 18 July, 13 August, 25 September, 28 October, 14 November, 18 December 2019 and 15 and 25 February 2020, the EIB called the applicant in for medical checks to take place, respectively, on 18 June, 8 August, 27 August, 2 October, 4 November, 25 November, 23 December 2019 and on 3 and 28 February 2020.

39The applicant, through his legal adviser, refused to submit to those checks and submitted medical certificates indicating that he was unable to attend them.

Procedure and forms of order sought by the parties

40By application lodged at the Registry of the General Court on 11 June 2020, the applicant brought the present action.

41By letter lodged at the Court Registry on the same day, the applicant requested anonymity. The General Court granted that request by decision of 21 July 2020.

42The defence, the reply and the rejoinder were lodged, respectively, on 17 September 2020, 25 November 2020 and 19 January 2021.

43On 26 April 2021, the applicant produced further evidence, pursuant to Article 85(3) of the Rules of Procedure of the General Court.

44On 27 April 2021, on a proposal from the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral stage of the proceedings and, by way of measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, invited the parties to lodge certain documents and put written questions to them asking them to reply in writing. The parties responded to those requests within the period prescribed.

45The parties presented oral argument and replied to the questions put to them by the Court at the hearing of 24 June 2021.

46At the hearing, the General Court asked the EIB to produce further documents and to reply to several questions, and asked the applicant to submit his observations on the replies given by the EIB; both parties complied within the time limit.

47The oral stage of the proceedings was closed on 29 July 2021.

48The applicant claims that the Court should:– annul the decisions of 8 February and 8 March 2019 in so far as they declare the applicant fit to work and absent without justification since 18 February 2019;– in so far as is necessary, annul the decision of the President of the EIB of 16 March 2020, in so far as it confirms the findings of the Conciliation Board and, therefore, the decisions of 8 February and 8 March 2019;– accordingly, order the EIB to make retrospective payment of the invalidity pension in principle from 1 February 2019 onwards, until such time as payment has been made in full, the default interest rate being the interest rate applied by the European Central Bank (ECB) plus two percentage points;– order the EIB to pay compensation in respect of the non-material damage suffered by the applicant;– order the EIB to pay the costs in their entirety.

49The EIB contends that the Court should:– dismiss the action as partially inadmissible;– dismiss the action in its entirety as unfounded;– order the applicant to pay all the costs.

Law

The application for annulment

50In support of his application for annulment, the applicant relies on two pleas in law. The first alleges infringement of Articles 46-1 and 48-1 of the TPSR and of Articles 11.1 and 11.3 of the administrative provisions and also a manifest error of assessment, while the second alleges breach of the duty to have regard for the well-being of staff.

51In the first plea, the applicant submits inter alia that, by holding, in the decisions of 8 February and 8 March 2019, upheld by that of 16 March 2020 (‘the contested decisions’), that he was fit to work and absent without justification since 18 February 2019, the EIB infringed Articles 46-1 and 48-1 of the TPSR and Articles 11.1 and 11.3 of the administrative provisions, and also committed a manifest error of assessment.

52According to the applicant, those illegalities derive from the fact that the Invalidity Committee had declared him invalid in relation to the EIB in two documents entitled respectively ‘Medical evaluation of the Invalidity Committee of 9/11/2018’ and ‘Conclusion of the Invalidity Committee of 9/11/2018’.

53The position taken by the Invalidity Committee in those two documents was supported by C’s certificate of 12 September 2019 and by D’s email of 18 September 2019.

54According to the applicant, in order to be declared invalid within the meaning of Article 46-1 of the TPSR, the staff member or official need only be invalid in relation to the EIB and invalidity does not need to be established in relation to the open labour market.

55On the other hand, the EIB considers that the opinion of the Invalidity Committee is contained not in the documents referred to by the applicant, but in the forms of 16 and 23 January 2019, in which the three members of the Invalidity Committee ticked the box ‘not invalid’. Taken together, those three forms constitute the opinion which the Invalidity Committee had to submit pursuant to Article 15-4 of the TPSR.

56The EIB maintains that it is clear from the opinion of the Invalidity Committee, which considers the applicant to be ‘not invalid’, that he should have resumed work at the EIB on 18 February 2019 and, if he did not, should have been regarded as absent without justification from that date, as it stated in the decisions of 8 February and 8 March 2019.

57According to the EIB, the TPSR recognises only one type of invalidity, namely invalidity on the open labour market, and not invalidity which exists only in relation to the EIB.

The documents constituting the opinion of the Invalidity Committee

58As is apparent from paragraphs 52, 53 and 55 above, the parties disagree regarding the documents to be taken into account in order to determine whether or not, according to the Invalidity Committee, the applicant was invalid.

59In the present case, it is apparent from paragraphs 17, 18 and 20 above that, at the time the decisions of 8 February and 8 March 2019 were adopted, the EIB had in its possession:– the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’, received on 21 December 2018;– the forms of 16 and 23 January 2019, received in January 2019;– the report entitled ‘Medical evaluation of the Invalidity Committee of 9/11/2018’, which had been sent, on 18 December 2018, to the EIB’s medical service, which, as stated in the decision of 8 March 2019, conveyed its content to the EIB board without revealing sensitive personal details; the conclusion stated at the end of that document corresponded to that in the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’.

60In its pleadings, the EIB considers that, of those documents, only the forms of 16 and 23 January 2019 could be taken into account, for four reasons.

61In the first place, those forms constitute the only authentic official document containing the opinion of the Invalidity Committee in accordance with Article 15-4 of the TPSR.

62In the second place, those forms postdate the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’.

63In the third place, the forms of 16 and 23 January 2019 were signed by the three members of the Invalidity Committee, whereas the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’ was signed only by D.

64In the fourth place, the title of that last document contains a misleading date, since the applicant was not examined by the Invalidity Committee on 9 November 2018.

65With regard to the EIB’s first argument, it must be observed that the latter has not produced any internal rule or provision to show that the opinion of the Invalidity Committee communicated to its board pursuant to Article 15-4 of the TPSR had to be expressed in a form such as those of 16 and 23 January 2019. In those circumstances, it cannot be held that those forms constitute the only official document issued by the Invalidity Committee that the EIB was authorised to take into account in order to declare the applicant invalid.

66As regards the EIB’s second argument, it must be observed that the fact that the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’ was prior to the forms of 16 and 23 January 2019 does not preclude it being taken into account, since its content was not contradicted by the members of the Invalidity Committee when they completed those forms. If the members of the Invalidity Committee had wished to alter the assessment made in the first document, or to qualify it, they need only to have appended notes to that effect to those forms.

67As regards the EIB’s third argument, it must be stated that, although the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’ is actually signed only by Dr D, it refers to the whole of the Invalidity Committee and states underneath that title ‘Composition of the Committee: Dr [C], Dr [A], Dr [D]’. Under Article 15-2 of the TPSR, the Invalidity Committee regulates its own procedure. In the absence of a provision produced by the EIB, providing that the Invalidity Committee’s opinion had to be signed by each of its members, that document cannot be ruled out on the ground that it is signed only by the chairperson of the Invalidity Committee, since he or she could have been authorised by the other members to draw it up. The EIB produced no evidence to show that the members of the Invalidity Committee other than its chairperson distanced themselves from the content of that document and from the medical evaluation report.

68As for the EIB’s fourth argument, it must be observed that the date of 9 November 2018 in the title of that document cannot result in its exclusion owing to the fact that the applicant had not appeared before the Invalidity Committee on that date.

69In order to determine the applicant’s possible invalidity, all that matters is the truth of the findings made by each member of the Invalidity Committee with regard to his state of health and that there should be a majority or unanimity within Committee to support the conclusion it has reached.

70None of those factors were challenged before the Court. It is apparent from the documents before the Court that the applicant’s medical file was studied by the three members of the Invalidity Committee and that D met with the applicant on 21 November 2018. Also, the fact that, within that committee, it was agreed that the applicant was invalid in relation to the EIB, but not in relation to the open labour market, is not disputed by the parties.

71In those circumstances, the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’ cannot be ruled out on the ground that the date it contains is not the date on which the applicant was examined by the Invalidity Committee.

72That is so a fortiori since that date is not necessarily incorrect, because the Chairperson of the Invalidity Committee, in the circumstances described in paragraph 70 above, may have noted that, since 9 November 2018, there was a majority in support of the conclusion which turned out to be the one that he himself confirmed on 21 November 2018 after having examined the applicant.

73Therefore, it is necessary to dismiss the arguments raised by the EIB in support of its position that only the forms of 16 and 23 January 2019 must be taken into account in order to determine the content of the opinion of the Invalidity Committee and, accordingly, to assess the legality of the contested decisions. Therefore, those assessments must be based on those forms and on the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’, which was confirmed by the document entitled ‘Medical evaluation of the Invalidity Committee of 9/11/2018’.

The content of the Invalidity Committee’s opinion

74The documents to be taken into consideration having been identified, it is necessary to determine the content of the Invalidity Committee’s opinion.

75It is apparent from the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’, received on 21 December 2018 by the EIB board that, for the three members of the Invalidity Committee, the applicant could no longer perform duties within the EIB, but was still capable of carrying on a professional activity outside it.

76That position corresponds to that expressed at the end of the document entitled ‘Medical evaluation of the Invalidity Committee of 9/11/2018’, which was sent, on 18 December 2018, to the EIB’s medical service, which, as the EIB wrote on 8 March 2019, informed its board omitting sensitive personal details.

77The opinion of the Invalidity Committee, thus expressed, does not contradict the position adopted by the three members of that committee in the forms of 16 and 23 January 2019.

78Indeed, it is apparent from the decision of 8 March 2019, from paragraph 75 of the defence and from the statements made by the EIB at the hearing that, between the communication of the two documents mentioned in paragraph 75 and 76 above and the submission of the forms of 16 and 23 January 2019, informal contacts took place between the EIB and, at least, the Chairperson of the Invalidity Committee. Following those contacts, the members of that committee may have considered that, since the applicant was not invalid in relation to the open labour market, it was appropriate to tick the box ‘not invalid’, since that was the EIB’s approach to invalidity.

79In contrast to that position, the EIB claims that, by stating in the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’ that the applicant was invalid in relation to the EIB, but not in relation to the open labour market, the chairperson of the Invalidity Committee in fact suggested a form of financial arrangement existing in national law, which would have allowed the applicant to leave the institution with a certain sum of money.

80Apart from the fact that it is not proven, that claim concerns the reasons which encouraged the Chairperson of the Invalidity Committee to state in the aforementioned document that the applicant could carry on a professional activity on the open labour market even though he was henceforth incapable of working within the EIB, but does not call into question the statement itself.

81Consequently, it must be held, in order to assess the legality of the contested decisions, that, according to the opinion of the Invalidity Committee, the applicant could no longer perform duties within the EIB, but was still capable of carrying on a professional activity on the open labour market.

The concept of invalidity used in Article 46-1 of the TPSR and Article 11.1 of the administrative provisions

82The applicant claims that, since he was incapable of working at the EIB, he should be declared invalid by the EIB, whereas, according to the EIB, the concept of invalidity precludes a person still being able to work outside that body.

83In that regard, it must be observed that, according to Article 46-1 of the TPSR and Article 11.1 of the administrative provisions, a member is considered incapacitated if, by reason of sickness, accident or disability, he is unable, physically or mentally, permanently to fulfil ‘his duties or any other similar duties at an equivalent level’ and if invalidity has been duly established.

84It is apparent from those provisions that the invalidity of an EIB staff member must be assessed in the light of his capacity to resume ‘his duties or any other similar duties at an equivalent level’.

85Contrary to the EIB’s submissions, the ‘other similar duties at an equivalent level’ which the applicant also had to be incapable of performing, within the meaning of Article 46-1 of the TPSR and Article 11.1 of the administrative provisions, had to be within the EIB.

86In the first place, Article 46-1 of the TPSR and Article 11.1 of the administrative provisions are to be interpreted, on that point, by analogy with Article 78 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), according to which ‘an official shall be entitled to an invalidity allowance in the case of total permanent invalidity preventing him or her from performing the duties corresponding to a post in his function group’.

87In the same way as Article 78 of the Staff Regulations refers to the function groups defined in Article 5 and Annex I thereof, which are specific to the organisation of the European Union institutions, it must be considered that Article 46-1 of the TPSR Article 11.1 of the administrative provisions refer to the classification of the internal functions at the EIB, established by Article 14 of the EIB Staff Regulations.

88Article 14 of the EIB Staff Regulations names four categories of person, namely management staff, executive staff, secretarial and clerical and support staff and young graduates and, within those categories, various degrees of function, namely the executives and function C for the management staff, functions D, E and F for the executive staff and functions G, H, I and K for the secretarial and clerical and support staff.

89From that reference to the organisation of work established by Article 14 of the EIB Staff Regulations, it is apparent that it is in relation to the EIB, and to the functions exercised therein, that the concept of invalidity in Article 46-1 of the TPSR and Article 11.1 of the administrative provisions must be defined.

90In the second place, it must be observed that the Invalidity Committees established by the EIB are organs of that body (see, to that effect and by analogy, judgment of 11 April 2006, Angeletti v Commission, T‑394/03, EU:T:2006:111, paragraph 159) and therefore do not have, from a legal point of view, competence to assess the capacity of EIB staff members to pursue professional duties outside it.

91Those committees have, from a legal point of view, competence to rule on the capacity of EIB staff members to work within the institution. On the other hand, they have no such competence to evaluate the capacity of an EIB staff member to work for another European Union institution or, within the domestic market, for an undertaking or public authority of the Member States. For a ruling on the capacity of those persons to work outside the EIB, it is for committees, established by the other institutions or by the national authorities, to examine the person concerned.

92Thus, it cannot be imagined that the opinions issued by an Invalidity Committee established by the EIB may bind the committees of the same kind which are set up by the other institutions or the national authorities in the countries in which EIB staff may subsequently carry out their activities.

93By ruling on the applicant’s capacity to perform activities on the open labour market, the Invalidity Committee established in the present case therefore impinged on the sphere of competence of those committees, thus creating a risk of contradiction between its assessment of the applicant’s capacity to work on the open labour market and the assessments which might subsequently be issued by the Invalidity Committees established by the other institutions or the national authorities.

94In the third place, it must be observed that, under Article 51-1 of the TPSR, if the invalid is gainfully employed, the invalidity pension is reduced to the extent that the sum of invalidity pension, child’s pension and income accruing from that employment exceeds the net remuneration corresponding to the step and function of the insured in the same family circumstances as at the time he or she was declared incapacitated.

95From that provision, it is clear that the rules applicable to the EIB acknowledge the possibility, for a staff member declared invalid within the EIB, to be gainfully employed outside that body, provided that the total of his or her various sources of income does not exceed the net remuneration which he or she received when working at the EIB.

96At the hearing, the EIB maintained that that possibility was limited to the performance of activities which could not be regarded as equivalent to those which the staff member performed within that body. It argued that the concept of invalidity in Article 46-1 of the TPSR and in Article 11.1 of the administrative provisions means incapacity to pursue, within that body or outside it, an activity identical or equivalent to that pursued by the staff member at the time the Invalidity Committee issued its opinion. Accordingly, Article 51.1 of the TPSR applies only to those rare situations in which a person declared invalid within the EIB pursues outside that body an activity different from that which he or she pursued within it.

97The interpretation proposed by the EIB cannot be accepted.

98It is wholly unsupported in the text of the rules at issue which, on the contrary, confirms, without making it subject to any restriction, the possibility for an EIB staff member to pursue another activity after having been declared invalid within that body. From that wording, which uses general terms, it is apparent that the exercise of any activity is authorised outside the EIB, in the event of a declaration of invalidity, the only limit being the ceiling of income as indicated in that provision.

99Also, the interpretation proposed by the EIB could give rise to legal uncertainty. If such an interpretation were adopted, it may be wondered how the EIB could define the functions which, on the open market, could or should be regarded as equivalent to those exercised by its staff members within it. In particular, the General Court is concerned about the criteria which would then have to be adopted in order to establish such equivalences, wonders whether such criteria should be publicised and finds that the task of defining and publicising seems impossible to carry out owing to the constantly evolving nature of the functions exercised on the open labour market.

100In view of the various elements, it must be held that the concept of invalidity, within the meaning of Article 46-1 of the TPSR and of Article 11.1 of the administrative provisions, is to be interpreted as referring to an EIB staff member who has been declared, by an Invalidity Committee established by the EIB, incapable of resuming his or her duties or equivalent duties within that body.

Infringement of Articles 46-1 and 48-1 of the TPSR and Articles 11.1 and 11.3 of the administrative provisions

101In the present case, since the Invalidity Committee had declared that the applicant was incapable of performing duties at the EIB and that the concept of invalidity used by Article 46-1 of the TPSR and Article 11.1 of the administrative provisions should only be assessed in relation to that body, the EIB was required to declare the applicant invalid.

102Consequently, it must be held that, by declaring him fit to work and absent without justification since 18 February 2019 in the contested decisions, the EIB infringed Article 46-1 of the TPSR and Article 11.1 of the administrative provisions.

103Furthermore, the EIB infringed Article 48-1 of the TPSR and Article 11.3 of the administrative provisions, also relied on by the applicant in the first plea, under which, in the event of dispute, it is the Invalidity Committee which is competent to establish invalidity.

104The infringement of the aforementioned provisions is all the more evident as regards the decision of 16 March 2020 given that, at the time of the adoption of that decision, the EIB also had C’s certificate of 15 March 2019, in which he stated that, according to the unanimous opinion of the Invalidity Committee, the applicant was invalid in relation to the EIB and also, that if he had understood the form of 23 January 2019, he would have ticked ‘the box ‟invalid” with reference to the EIB’. That certificate confirmed, without needing to, that, for the Invalidity Committee, the applicant was incapable of resuming work at the EIB.

Conclusion regarding the first plea

105In the light of all the foregoing considerations, the first plea must be considered well founded and, consequently, the contested decisions must be annulled, without it being necessary to examine either the other arguments raised by the applicant in connection with the first plea, or the admissibility of the further evidence submitted on 26 April 2021 by the applicant in support of that plea, or the second plea.

The request for the EIB to be ordered to make retrospective payment of the invalidity pension to the applicant

106In his third head of claim, the applicant requests that the EIB be ordered to make retrospective payment of the invalidity pension payable in principle since 1 February 2019, until such time as payment has been made in full, the default interest rate being the interest rate applied by the ECB plus two percentage points.

107The EIB considers that that claim is inadmissible because, if it were upheld, that would mean that the General Court orders it to recognise the applicant as invalid within the meaning of the applicable regulations. However, according to the EIB, the General Court cannot issue directions to the institutions which, under Article 266 TFEU, have only to take the necessary measures to comply with an annulment judgment.

108Moreover, according to the EIB, neither the General Court nor itself can replace the Invalidity Committee in its medical findings, which should be considered as final. In order that an invalidity pension maybe allocated to the applicant, it considers that a new Invalidity Committee should be established, which would have the task of determining whether or not the applicant is invalid.

109In that regard, it must be observed that, as the EIB points out, the EU courts cannot, without encroaching upon the prerogatives of the administration, order an EU institution or body to adopt specific measures necessary for the enforcement of a judgment by which a decision is annulled (see, to that effect, judgment of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 163 and the case-law cited).

110However, according to the case-law, it is appropriate to apply to disputes arising between the EIB and its staff the rule contained in the second sentence of Article 91(1) of the Staff Regulations (see, to that effect, judgment of 28 September 1999, Hautem v EIB, T‑140/97, EU:T:1999:176, paragraph 77, confirmed by judgment of 2 October 2001, EIB v Hautem, C‑449/99 P, EU:C:2001:502, paragraph 95).

111That provision gives the Courts of the Union in disputes of a financial character, unlimited jurisdiction in the exercise of which it has the power, if appropriate, of its own motion to order the defendant to pay compensation for the harm caused by its fault and, in that event, to evaluate, in the light of all the circumstances of the case, the harm suffered ex æquo et bono (see judgment of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 44 and the case-law cited).

112The unlimited jurisdiction thus conferred on the Courts of the Union by the second sentence of Article 91(1) of the Staff Regulations gives it the task, inter alia, of providing a complete solution to the cases before it and of ensuring the practical effectiveness of the annulment judgments it pronounces in civil service cases (see judgment of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraphs 49 and 50 and the case-law cited).

113Where it exercise its unlimited jurisdiction, the EU Court does not issue directions to the institutions or bodies concerned, but has, if necessary, the power to replace them in order to take decisions which necessarily involve the conclusions it reaches during its legal assessment of the dispute.

114In the present case, the question arises whether the applicant’s third head of claim is to be interpreted as requesting the General Court to exercise its unlimited jurisdiction. It is necessary to determine in that regard whether, owing to that request, the case before the General Court is ‘a dispute of a financial character’, within the meaning of Article 91(1) of the Staff Regulations.

115When questioned on that point by the General Court, the EIB does not contest that, in disputes between itself and its staff, the EU Court has, including in relation to the EIB, unlimited jurisdiction provided that those disputes are of a financial character.

116However, the EIB considers that the present dispute is not of that character, because the applicant’s claim for retrospective payment of an invalidity pension assumes that he has been recognised as invalid within the meaning of the regulations applicable to the EIB and that declaration of invalidity falls within the exclusive competence of the Invalidity Committee

117In that regard, it should be pointed out that, according to the case-law, ‘disputes of a financial character’ within the meaning of that provision include not only actions brought by staff members seeking to have an institution held liable, but also any actions seeking payment by an institution to a staff member of a sum which he or she considers to be due to him or her under the Staff Regulations or another measure governing their working relations (see, to that effect, judgments of 18 December 2007, Weißenfels v Parlement, C‑135/06 P, EU:C:2007:812, paragraph 65, and of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 45).

118In the present case, where the applicant is asking the EU Court to rule on the legality of the decision not to recognise his status as an ‘invalid’ person and, under the third head of claim, to order the EIB to pay him a sum of money, it must be understood that that action becomes a dispute of a financial character. The decision to regard the applicant as ‘not invalid’ has direct consequences for the continuance of the party’s situation as a member of the EIB staff, and therefore on his remuneration and financial rights (see, to that effect, judgments of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 47, and of 30 September 2013, Possanzini v Frontex, F‑124/11, EU:F:2013:137, paragraph 73).

119In those circumstances, it must be held that the present dispute is of a financial character and that, therefore, the General Court has unlimited jurisdiction in this case.

120It is true that, following the annulment of the contested decisions, decided in paragraph 105 above, the EIB must adopt, pursuant to Article 266 TFEU, a new decision recognising the applicant’s state of invalidity and acknowledging his right to an invalidity pension, since the Committee’s opinion cannot, on its own, produce those effects.

121However, in order to adopt that decision, the EIB will not have to re-examine the applicant’s situation, since, in the present case, it has only circumscribed powers, requiring it to draw the administrative consequences of the declaration of invalidity made by the Invalidity Committee duly established for that purpose (see, a contrario, with regard to the annulment of a medical decision following which the administration was required to re-examine the applicant’s situation, judgment of 28 September 2011, Allen v Commission, F‑23/10, EU:F:2011:162, paragraph 115).

122First, it is apparent from Articles 46-1 and 48-1 of the TPSR that the state of invalidity is recognised by the Invalidity Committee. Secondly, under Articles 33d and 36 of the EIB Staff Regulations and of Article 49-1 of the TPSR, staff members recognised as invalid by the Invalidity Committee are entitled to an invalidity pension.

123In the present case, as is apparent from paragraphs 75 to 81 above, the Invalidity Committee’s opinion that the applicant is invalid was expressed in the document entitled ‘Conclusion of the Invalidity Committee of 9/11/2018’, which has been said, in the light of all the circumstances of the case, to express the position of the members of the Invalidity Committee, so that the EIB, which did not maintain that the procedure before the Invalidity Committee had been irregular, has no alternative but to declare the applicant invalid and, accordingly, to acknowledge that he is entitled to receive an invalidity pension, without a new Invalidity Committee having to be constituted.

124Accordingly, the EIB must be ordered to pay the applicant the invalidity pension owing to him from 1 February 2019, and default interest on that pension until such time as payment has been made in full, the default interest being the interest rate applied by the ECB for its main refinancing operations and in force on the first day of the month of the payment due date, plus two percentage points.

125From the sum thus evaluated, it will be necessary to deduct the sums which were paid to the applicant by way of remuneration during the same period and which it appears, due to the payment of the invalidity pension, were not owed to him.

The claim for compensation

126The applicant takes the view that, by compelling him to bring the action although the Invalidity Committee’s opinion was clear as to his invalidity, the EBI caused him non-material damage consisting in the worsening of his anxiety, which should be compensated by the payment of the sum of EUR 5000, assessed ex æquo et bono.

127According to the applicant, the causal link between the non-material damage and the conduct of the EIB is evident, since he would not have suffered that additional stress if the EIB had agreed to endorse the conclusions of the Invalidity Committee.

128The applicant submits in that regard a report from his psychiatrist, dated 2 June 2020.

129The EIB contests that claim.

130In that regard, it should be pointed out that, according to the case-law, the annulment of an unlawful act may, in itself, adequately and, in principle, sufficiently compensate for any non-material damage which that act may have caused (judgment of 9 November 2004, Montalto v Council, T‑116/03, EU:T:2004:325, paragraph 127; see also, to that effect, judgment of 9 July 1987, Hochbaum and Rawes v Commission, 44/85, 77/85, 294/85 and 295/85, EU:C:1987:348, paragraph 22).

131The situation is different only if the applicant demonstrates that he has suffered non-material damage which is separable from the unlawfulness giving rise to the annulment and which cannot be fully compensated for by that annulment (judgment of 31 May 2018, Korwin-Mikke v Parliament, T‑352/17, EU:T:2018:319, paragraph 78).

132In the present case, although the damage of worsening of anxiety on which the applicant relies is linked to the conduct of the EIB during the pre-litigation stage, the General Court considers, nevertheless, that the applicant has failed to show that full compensation for the damage cannot be made by the annulment of the EIB decision, particularly as, in the present case, it is accompanied by an order for that body to pay the applicant all the financial allowances of which he was deprived as a result of the annulled decision (see, to that effect, judgment of 30 January 2020, BZ v Commission, T‑336/19, not published, EU:T:2020:21, paragraph 55).

133Consequently, the claim for compensation for non-material damage made by the applicant must be dismissed.

Costs

134Under 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.

135Since the EIB has been unsuccessful in most of its submissions, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

Operative part

On those grounds,THE GENERAL COURT (Fourth Chamber)hereby:

1.Annuls the decisions of the European Investment Bank (EIB) of 8 February and 8 March 2019, declaring KL fit to work and absent without justification since 18 February 2019, and the decision of the President of the EIB of 16 March 2020, which confirms them;

2.Orders the EIB to pay KL an invalidity pension, as from 1 February 2019, and default interest on that pension until such time as payment has been made in full, the default interest rate being the interest rate applied by the European Central Bank (ECB) for its main refinancing operations and in force on the first day of the month of the payment due date, plus two percentage points, less the sums which were paid to the applicant by way of remuneration during the same period and which it appears, due to the payment of the invalidity pension, were not owed to him;

3.Dismisses the remainder of the application;

4.Orders the EIB to pay the costs.

Delivered in open court in Luxembourg on 24 November 2021.