CELEX: 62003TJ0011
Staff of the European Central Bank
Defamation
Racial discrimination
Disciplinary procedure
Rights of the defence
Characterisation in law of the facts
Action for damages

Legal background
1       Under Article 4(a) of the Conditions of Employment for Staff of the European Central Bank (‘the Conditions of Employment’,
adopted by decision of the European Central Bank of 9 June 1998, OJ 1999 L 125, p. 32):
‘Members of staff shall perform their duties conscientiously and without regard to self-interest. They shall conduct themselves
in a manner befitting their position and the character of the ECB as a Community body.’
2       Article 9(a) of the Conditions of Employment states:
‘Employment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction
with these Conditions of Employment. The Staff Rules adopted by the Executive Board shall further specify the application
of these Conditions of Employment.’
3       Article 9(c) of the Conditions of Employment then provides:
‘No specific national law governs these Conditions of Employment. The ECB shall apply (i) the general principles of law common
to the Member States, (ii) the general principles of European Community (EC) law, and (iii) the rules contained in the EC
regulations and directives concerning social policy which are addressed to Member States. Whenever necessary, these legal
instruments will be implemented by the ECB. EC recommendations in the area of social policy will be given due consideration.
In interpreting the rights and obligations under the present Conditions of Employment, due regard shall be shown for the authoritative
principles of the regulations, rules and case-law which apply to the staff of the EC institutions.’
4       In addition, Article 43 of the Conditions of Employment provides:
‘The following disciplinary measures may be taken, as appropriate, against members of staff who fail in their duties to the
ECB:
(i)      a written reprimand may be issued by a member of the Executive  Board;
(ii)      the Executive Board may decide on:
─       a temporary reduction in salary;
─       demotion or a change in the employment position of the member of staff within the ECB;

─       a permanent reduction in salary;
─       dismissal.
Disciplinary measures must be in proportion to the gravity of the breach of discipline and the grounds on which they are based
must be stated. They shall be adopted in accordance with the procedure laid down in the Staff Rules. The said procedure shall
ensure that no member of staff may be subjected to a disciplinary measure without an opportunity to reply to the relevant
charges first being granted.’
5       Under the Code of Conduct of the European Central Bank in accordance with Article 11.3 of the Rules of Procedure of the European
Central Bank (OJ 2001 C 76, p. 12):
‘2.1 ... The addressees need both to show sensitivity to and respect for others and to stop any behaviour seen as offensive
by another person at his/her first indication. None of the addressees shall be prejudiced in any way whatsoever for preventing
or reporting harassment or bullying.
...
5.1 ... Proper implementation of this Code depends first and foremost on the professionalism, conscience and common sense
of the addressees.’

Origin of the dispute and procedure
6       These proceedings were brought by Elizabeth Afari (‘the applicant’), a member of staff of the European Central Bank.
7       On 6 April 1999 the applicant and the European Central Bank entered into a contract under which the applicant was assigned,
with effect from 1 June 1999, to the post of assistant accountant in the Back Office Division of Directorate General Operations
of the European Central Bank.
8       The applicant, who is black, submits that during the time she worked in the Back Office Division Mr B., one of her colleagues,
put her under strong pressure and harassed and discriminated against her on grounds of race.
9       On 17 March 2000, following an altercation with Mr B., the applicant made an oral complaint to her head of division. She repeated
her complaint on 15 June 2000.
10     On 12 June 2001, according to the European Central Bank, Mr B. informed the applicant of a number of mistakes he had detected
in reports for which she was responsible. The Bank claims that the applicant then responded by calling Mr B. a ‘damn racist’.
11     On 19 June 2001 Mr B. lodged a complaint with his superiors, in which he claimed that the applicant had wrongly accused him
of having accessed without her permission a database in which she was working, misrepresented her work and displayed racism.
On the same day, the applicant for her part lodged a complaint asking her superiors inter alia to instruct Mr B. to stop such
behaviour.
12     On 26 June 2001 the Director of Personnel of the European Central Bank wrote a letter to the applicant to inform her that
a meeting had been arranged for 17 July 2001 in order to give her and Mr B. an opportunity to present their views. At that
meeting it was not possible to reach an amicable solution to the dispute.
13     On 18 July 2001 a second meeting was held, at which it also proved impossible to find an amicable solution to the dispute
between Mr B. and the applicant.
14     On 30 July 2001 the European Central Bank sent the applicant the minutes of the meeting of 17 July 2001. On 31 July 2001 the
applicant submitted her comments on those minutes. In her comments she stated in particular:
‘I never confirmed using the words “damn racist”. What I can confirm is that on the 12 June 2001 I did call Mr [B] a racist
and I maintain this stance.’
15     On 12 November 2001 the European Central Bank sent a letter to the applicant informing her that it intended to continue its
investigations, since every previous attempt to reach an amicable solution had failed.
16     In reply to that letter, the applicant wrote on 13 November 2001 to the Director of Personnel of the European Central Bank,
asserting that the management of the Bank had intimidated her and put her under pressure at the meeting of 18 July 2001 to
withdraw her accusations, and that the management had ‘never had any good intentions to resolve this conflict amicably’. In
her letter the applicant also stated:
‘Evidence is abundant that the intention of Management (DG-OP) was to dismiss me because I have identified a racist, and they
have all this time been encouraging xenophobia and racist behaviour in the working environment.’
17     On 29 November 2001 the European Central Bank sent the applicant a letter requesting her to produce evidence before 10 December
2001 to substantiate the accusations she had made in her complaint of 19 June 2001, at the meeting of 17 July 2001 and in
her letter of 13 November 2001.
18     In response to that request, the applicant on 17 December 2001 sent the European Central Bank a memorandum intended to provide
the evidence asked for.
19     On 26 February 2002 the European Central Bank asked a former senior official of the Commission’s Legal Service (‘the external
consultant’) to investigate the complaint lodged by Mr B. and to ascertain whether Mr B. had committed racial discrimination
against the applicant. In his investigation the external consultant interviewed Mr B., the applicant and several of their
colleagues and superiors.
20     On 15 May 2002 the external consultant submitted his report to the European Central Bank. In the report he stated inter alia
that he had not found any trace of harassment or discrimination in Mr B.’s attitude towards the applicant and that the strong
tensions between those two persons were in his view due to personal and professional disagreements which were not racially
or ethnically motivated.
21     On 12 June 2002 the report was sent to the applicant. In his covering letter the Director of Personnel of the European Central
Bank, who had in the meantime become Director of Human Resources of the European Central Bank, informed the applicant that
the standards prevailing within the Bank did ‘not allow staff members to adopt an attitude lacking in professionalism and
respect towards a colleague’ and that he was obliged to open a disciplinary procedure against her because of ‘the allegation
of racism against Mr [B], proven unsubstantiated by the external [consultant’s report]’ and ‘the allegations [she had] made
against the management of the ECB mainly accusing it of intimidating [her] ..., of encouraging xenophobia and racism and of
having prejudged the outcome of any investigation in relation to [her] complaint’.
22     In that letter the Director of Human Resources of the European Central Bank informed the applicant that she would have until
28 June 2002 to submit observations. At the applicant’s request, that period was extended until 15 July 2002.
23     By letter of 13 June 2002, the applicant was informed of her transfer to the Operational Analysis Division of Directorate
General Operations of the European Central Bank as a senior administrative assistant with effect from 17 June 2002.
24     On 14 July 2002 the applicant submitted her observations on the European Central Bank’s letter of 12 June 2002.
25     On 23 July and 30 August 2002 the applicant’s legal advisers submitted additional observations, in which they asserted in
particular that the European Central Bank had committed a number of irregularities during the investigation procedure, in
particular because of pressure allegedly brought to bear on the persons interviewed by the external consultant.
26     On 5 November 2002 one of the members of the Executive Board of the European Central Bank sent the applicant a letter issuing
a written reprimand against her (‘the contested decision’). The member of the Executive Board of the Bank informed her, in
conclusion:
‘[Y]ou have formulated unsubstantiated accusations in an aggressive and defamatory manner, using very strong terms and subsequently
failing to support them with objective elements capable of proving their pertinence in the context of your personal case.
...
Making allegations of racism and accusing members of the management of the ECB of intimidating you, of encouraging xenophobia
and racism and of having prejudged the outcome of any investigation when no facts are presented which can support such allegations
and accusations, clearly violates your obligations as a staff member of the ECB.
I therefore have to conclude that your behaviour has been lacking professionalism and respect towards colleagues and amounts
to misconduct. This behaviour deserves to be sanctioned.
Finally, when you and I met at your initiative on 26 June 2002, I was made aware that you have been on sick leave on account
of the stress caused by the prevailing situation. I want to underline that this factor contributed to convince me that a light
disciplinary measure would be an appropriate sanction.
Accordingly, I issue hereby a written reprimand.’
27     By application lodged at the Registry on 14 January 2003, the applicant brought the present action.
28     On 28 March 2003 the European Central Bank lodged its defence at the Registry.
29     Pursuant to Article 47 of the Rules of Procedure of the Court of First Instance, the Court decided that a second exchange
of pleadings was unnecessary because the documents before it were sufficiently comprehensive to enable the parties to elaborate
their pleas and arguments in the course of the oral procedure.
30     A hearing took place on 5 November 2003 at which the parties presented oral argument.

Forms of order sought by the parties
31     The applicant claims that the Court of First Instance should: annul the contested decision; order the European Central Bank
to pay her one euro as compensation for the non-material damage suffered; order the European Central Bank to pay the costs.
32     The European Central Bank contends that the Court should: dismiss the action; order the applicant to bear her own costs.

The claim for annulment

Plea of breach of the obligation to state reasons, the right to good administration and the rights of the defence
Arguments of the parties
33     The applicant observes, as a preliminary point, that the right to good administration laid down by Article 41 of the Charter
of Fundamental Rights of the European Union (OJ 2000 C 364, p. 1) includes the right of every person to be heard before any
individual measure which would affect him or her adversely is taken, and the obligation of the administration to give reasons
for its decisions. The applicant also points out that respect for the rights of defence in any proceedings likely to lead
to an act having adverse effect is a fundamental principle of Community law which must be observed even in the absence of
an express provision (Case T-169/95
Quijano
v
Commission
[1997] ECR-SC I-A-91 and II-273, paragraph 44, and Case T-211/98
F
v
Commission
[2000] ECR-SC I-A-107 and II-471, paragraph 28).
34     According to the applicant, the contested decision is in breach both of her right to be heard and of the obligation of the
European Central Bank to state reasons, in that the decision did not address numerous criticisms expressed by her during the
disciplinary procedure, in particular in her observations of 14 July, 30 August and 10 September 2002. Furthermore, the Bank
treated as valid, with no explanation or justification, the conclusions of the report submitted by the external consultant.
Finally, the statement of reasons in the contested decision gives no indication that the Bank took the applicant’s observations
into consideration.
35     The European Central Bank rejects those arguments. It states in this respect that the contested decision describes in detail
the applicant’s accusations against Mr B. and the Bank, thus enabling her to assess whether the decision was well founded
and also allowing the Court of First Instance to exercise judicial review.
Findings of the Court
36     This plea consists of three distinct parts, which should be examined successively. They allege, first, breach of the obligation
to state reasons, second, breach of the principle of good administration and, third, breach of the rights of the defence.
─ Obligation to state reasons
37     According to settled case-law, the statement of the reasons for a decision adversely affecting a person must allow the Community
judicature to exercise its review of legality and must provide the person concerned with the information which he needs in
order to know whether the decision is well founded (Case C-188/96 P
Commission
v
V
[1997] ECR I-6561, paragraph 26, and Case T-372/00
Campolargo
v
Commission
[2002] ECR-SC I-A-49 and II-223, paragraph 49).
38     It is also settled case-law that the statement of reasons for a decision of the administration in a disciplinary procedure
must specify the acts which the official is found to have committed and the considerations which have led the appointing authority
to impose the particular penalty (Case T-40/95
V
v
Commission
[1996] ECR-SC I-A-587 and II-1753, paragraph 36). That does not, however, mean that the statement of reasons for the disciplinary
decision has to discuss all the points of fact or of law which the person concerned has raised during the procedure (Joined
Cases T-34/96 and T-163/96
Connolly
v
Commission
[1999] ECR-SC I-A-87 and II-463, paragraph 93, and Case T-197/00
Onidi
v
Commission
[2002] ECR-SC I-A-69 and II-325, paragraph 156).
39     In the present case, the European Central Bank specified in the contested decision the various factors on which it based the
adoption of the decision, namely the applicant’s allegations against Mr B. and her managers, its view that the applicant had
not produced any evidence in support of her allegations, its analysis that those facts constituted a breach on the part of
the applicant of Article 4(a) of the Conditions of Employment and Articles 2(1) and 5(1) of the Code of Conduct, and, finally,
grounds based on the applicant’s state of health.
40     Consequently, without the European Central Bank being required additionally to set out the reasons for which it relied on
the external consultant’s report, the statement of reasons in the contested decision is sufficient to enable the applicant
to assess whether it is well founded and the Court to review its legality.
41     The first part of the applicant’s plea must therefore be rejected.
─ Principle of good administration
42     According to settled case-law, pursuant to the principle of good administration, the administration is obliged when taking
a decision concerning the situation of an official to take into consideration all the factors which may affect its decision,
and when so doing it should take account not only of the interests of the service but also of those of the official concerned
(Case 417/85
Maurissen
v
Court of Auditors
[1987] ECR 551, paragraph 12, and Case T-7/01
Pyres
v
Commission
, 6 February 2003, not yet published in the ECR, paragraph 77).
43     In the present case, the applicant complains, first, that the European Central Bank did not reply to all the criticisms expressed
by her during the disciplinary procedure.
44     However, that circumstance alone does not suffice as such to show that the European Central Bank did not take into account
all the relevant factors of the present case, since in the statement of reasons of the contested decision the Bank was in
no way obliged to reply to all the arguments raised by the applicant (
Connolly
v
Commission
, paragraph 93, and
Onidi
v
Commission
, paragraph 156).
45     As regards, second, the fact that the European Central Bank based itself on the external consultant’s report, it must be pointed
out, to begin with, that no rule required the Bank to appoint an external consultant in order to determine whether the applicant
had in fact been discriminated against, so that the fact of nevertheless having displayed such diligence cannot constitute
a lack of care on its part, but would rather tend to show that, on the contrary, the Bank took her allegations seriously.
46     Next, the applicant has not produced any specific element to show that the external investigation in some way or other affected
the loyalty or impartiality of the European Central Bank. The applicant admittedly submits, in her third plea, that the external
consultant was not impartial, in particular in that he knew the Director General of Operations of the European Central Bank,
did not speak English, which is the working language of the Bank, was a former official of the Commission, and was remunerated
by the Bank.
47     However, even on the assumption that those facts are established, which is disputed by the European Central Bank in respect
of some of them, they could at most entail certain reservations as to the independence of the external consultant in relation
to the Bank, but not as to his independence in relation to the applicant. It is clear from the letter instructing the external
consultant that his mandate did not relate to the part of the present dispute in which the applicant is opposed to the Bank
but solely to the part in which she is opposed to Mr B.
48     The second part of the applicant’s plea is therefore unfounded.
─ Breach of the rights of the defence
49     According to settled case-law, respect for the rights of the defence constitutes a fundamental principle of Community law
which must be must be observed even in the absence of an express provision (
Quijano
v
Commission
, paragraph 44, and
F
v
Commission
, paragraph 28).
50     Furthermore, Article 43 of the Conditions of Employment of the Bank provides, in the same way as Article 87 of the Staff Regulations
of Officials of the European Communities, that the disciplinary procedure must ensure that no member of staff may be subjected
to a disciplinary measure without first being granted an opportunity to reply to the charges against him (Case T-333/99
X
v
ECB
[1999] ECR II-3021, paragraphs 176 and 177).
51     In the present case, the applicant criticises the European Central Bank, first, for failing to reply in the contested decision
to certain criticisms made in her observations of 14 July, 30 August and 10 September 2002.
52     The statement of reasons for a disciplinary decision is not, however, required to discuss all the points of fact and law which
the person concerned has raised during the procedure (
Connolly
v
Commission
, paragraph 93, and
Onidi
v
Commission
, paragraph 156). Consequently, the mere fact that the contested decision does not reply to certain arguments put forward
during the disciplinary procedure is not sufficient to show that the applicant was not afforded a proper hearing during that
procedure.
53     The applicant criticises the European Central Bank, second, for having accepted the external consultant’s conclusions as valid,
without any explanation or justification.
54     However, the applicant has not shown how the taking of that position in the contested decision could have affected her right
to be heard, which, by definition, was exercised before the adoption of the decision.
55     The case-file shows, moreover, that the external consultant’s report was annexed to the European Central Bank’s letter of
12 June 2002 opening the disciplinary procedure against the applicant. The applicant was invited to make observations on that
letter of 12 June 2002, an invitation to which she responded on 14 July 2002 by commenting inter alia on several points of
the external consultant’s report. The third part of the plea must therefore be rejected.
56     Consequently, the applicant’s first plea is unfounded in its entirety.

Plea of breach of the principle of non-discrimination, the principle of impartiality and the rights of the defence
Arguments of the parties
57     The applicant considers that the European Central Bank should have allowed her to be heard by a disciplinary board. She notes
that the Staff Regulations of Officials of the European Communities provide for the involvement of a disciplinary board composed
jointly of representatives of the administration and representatives of the Staff Committee. It is true that, under Article
87 of the Staff Regulations of Officials of the European Communities, when the appointing authority decides to issue a written
warning or reprimand it may do so without consulting a disciplinary board. However, a disciplinary board may also envisage
adopting such a disciplinary measure.
58     The applicant also observes that in other disciplinary procedures (see in particular
X
v
ECB
, paragraph 11) the European Central Bank decided to have recourse to a board before adopting its disciplinary decision. The
Bank has not explained why it departed in the present case from its previous practice even though that point had been raised
by the applicant in her observations of 14 July 2002. Consequently, by failing to refer the matter to a disciplinary board
before taking its decision, the Bank failed to ensure that the right to be heard, the principle of impartiality and the principle
of non-discrimination were complied with.
59     The European Central Bank submits in reply that it was not obliged to consult a disciplinary board.
Findings of the Court
60     It should be noted, to begin with, that the European Central Bank has not adopted any internal rule expressly requiring a
disciplinary board to be consulted before the adoption of a disciplinary measure.
61     Moreover, while Article 9(c) of the Conditions of Employment requires the Bank to show due regard for the Staff Regulations
of Officials of the European Communities, Article 87 of those regulations nevertheless provides:
‘The appointing authority shall have the right to issue a written warning or a reprimand without consulting the Disciplinary
Board, on a proposal from the official’s immediate superior or on its own initiative.’
62     No obligation on the European Central Bank to convene a disciplinary board before issuing a written reprimand can therefore
follow from the application by analogy of the rules laid down by the Staff Regulations of Officials of the European Communities.
63     The applicant submits that the failure to have recourse to a disciplinary board nevertheless constitutes in the present case
a breach of the principle of non-discrimination, the principle of impartiality, and the rights of the defence.
64     As regards, first, the alleged breach of the principle of non-discrimination, the applicant states that a disciplinary board
was convened in the disciplinary procedures of the European Central Bank which were previously the subject of judgments of
this Court.
65     It is settled case-law, however, that the principle of non-discrimination applies only to persons who are in the same or a
similar situation and, moreover, requires that differences in treatment between different categories of officials or temporary
staff must be justified on the basis of objective and reasonable criteria and that the difference must be proportionate to
the aim pursued by the differential treatment (Case T-8/93
Huet
v
Court of Auditors
[1994] ECR II-103, paragraph 45).
66     In the present case, it does not follow from paragraph 11 of
X
v
ECB
that in that case the European Central Bank formally had recourse to a disciplinary procedure involving consultation of a
disciplinary board, since it merely allowed the applicant, before a disciplinary measure was imposed, to be heard by certain
members of the Personnel Department, the division to which he was attached and the Legal Service of the Bank.
67     In any event, the applicant has not referred to any factors capable of showing that she was in a similar situation to that
of the member of staff disciplined in the case at issue in
X
v
ECB
, and the latter was moreover dismissed, that is, subjected to a much more serious disciplinary measure than the applicant
in the present case.
68     Second, as regards the alleged breach of the principle of impartiality by the European Central Bank, the applicant has not
referred, in her application or at the hearing, to anything at all capable of showing why the convening of a disciplinary
board was particularly necessary in the present case to remedy the alleged bias of the Bank in the disciplinary procedure,
a bias the existence of which she alleges without proving, moreover.
69     As regards, third, the alleged breach of the applicant’s rights of defence, the case-file shows that she had an opportunity
to submit observations on several occasions before and after the opening of the disciplinary procedure, in particular on 17
December 2001, 14 July and 30 August 2002. In those circumstances, the applicant has also failed to show how the fact that
a disciplinary board was not convened could have affected her rights of defence.
70     The applicant’s second plea must therefore be rejected.

Plea of breach of the rights of the defence
Arguments of the parties
71     The applicant submits that the European Central Bank breached her rights of defence in three further respects, in addition
to those put forward in her first two pleas.
72     In the first part of this plea, the applicant submits that, for the purposes of the contested decision, the European Central
Bank could not rely on an external consultant’s report whose impartiality and independence were not guaranteed. More specifically,
the applicant casts doubt on the external consultant’s neutrality for several reasons.
73     First, to the applicant’s knowledge, the Director General of Operations of the European Central Bank took part in the appointment
of the external consultant despite being involved in the applicant’s case.
74     Second, although the Bank’s working language is English, the external consultant did not speak that language, which prevented
him from grasping certain nuances and a number of delicate issues, especially as no minutes or transcripts were drawn up of
the interviews he carried out.
75     Third, account should also be taken of the fact that the external consultant is a former official of the Commission and that
he was paid by the European Central Bank, which could have affected his neutrality.
76     Fourth, the external consultant’s mandate was one-sided in that it consisted in investigating solely ‘the complaint that Mr
B. has lodged with the [Directorate Human Resources] regarding the accusation of racism made against him by ...  Ms Afari’
and not the complaints made by her.
77     Fifth, at the beginning of his interview with the applicant, the external consultant stated that in his opinion Mr B. was
not a racist.
78     Sixth, the external consultant relied on certain witness statements without examining the relevant documents or checking them
against other statements.
79     Finally, the external consultant did not draw up transcripts of his interviews, even though they were the justification for
the disciplinary measure, at least as regards the first complaint. In the absence of such transcripts the applicant was unable
to exercise her rights of defence, that being all the more serious in that the external consultant’s report did not properly
reflect the statements made by the applicant’s colleagues, which had led one of them to ask for his witness statement to be
withdrawn from the report.
80     In the second part of the plea, the applicant criticises the Bank for having disciplined her for formulating unsubstantiated
complaints ‘in an aggressive manner’, whereas the complaint of her aggressiveness was not mentioned in the decision of 12
June 2002 opening the disciplinary procedure.
81     In the third part of the plea, the applicant submits that the facts complained of and charges made were characterised in law
for the first time in the contested decision, which prevented her from submitting her observations.
82     In reply to the first part of this plea, alleging that the European Central Bank could not rely on the external consultant’s
report, the Bank submits that there was nothing to prevent it from carrying out its own investigation and that it made use
of that consultant precisely to ensure that the procedure was impartial. The Bank states, moreover, that its Director General
of Operations did not take part in appointing the external consultant. Apart from the fact that the applicant does not support
her allegations with any evidence, the Director General of Operations in any event did not know the consultant before he started
his investigation.
83     The Bank then states that the applicant’s allegations concerning the language spoken by the external consultant, his past
as a representative of the Commission and the fact that he was paid by the Bank do not provide any material indication of
any lack of objectivity on his part, in that those factors were not capable of impairing his impartiality.
84     The European Central Bank further states that the external consultant’s mandate was to establish the truth, whatever it might
be, that his remuneration did not depend on the findings of his investigation, and, finally, that he treated the applicant
and Mr B. equally.
85     Next, as regards the interviewing of witnesses by the external consultant, the Bank points out that the applicant never asked
him to hear particular witnesses, so that she cannot complain of not having been able to call witnesses she wished to be heard.
86     Finally, the Bank observes that the investigation took place before the disciplinary procedure was opened on 12 June 2002,
so that it is doubtful whether the rights of the defence were applicable at that stage (Case T-273/94
N
v
Commission
[1997] ECR-SC I-A-97 and II-289, paragraph 79).
87     In reply to the second part of the plea, alleging that the contested decision included a complaint of aggressiveness which
had not been previously communicated to the applicant, the European Central Bank states that the letter of 12 June 2002 referred
to documents which left no doubt as to the aggressive nature of their tone, and that even if the aggressiveness of the applicant’s
words were to be regarded as a new fact, the procedure would not have had a different outcome in the absence of that irregularity.
88     In reply to the third part of the plea, alleging that the contested decision contained the first legal characterisation of
the acts complained of, the European Central Bank points out that the letter of 12 June 2002 stated clearly that ‘the standards
prevailing within the ECB do not allow staff members to adopt an attitude lacking in professionalism and respect towards a
colleague’. That passage and the events after 12 June 2002 enabled the applicant to know in which duties she had failed in
the course of her employment. Consequently, the applicant was able to exercise her rights of defence without the administration
needing to specify the provisions infringed, as everyone is presumed to know the law.
89     The factual circumstances described in the Bank’s letter of 12 June 2002 provided the applicant with enough information for
her not to be able to claim not to know that Articles 2(1) and 5(1) of the Code of Conduct were being referred to.
Findings of the Court
90     In the context of disciplinary procedures, the principle of respect for the rights of the defence is infringed where it is
established that the person concerned was not given a proper hearing before the act adversely affecting him was adopted and
where it cannot be reasonably precluded that that irregularity could have had a particular impact on the content of that act
(Case T-237/00
Reynolds
v
Parliament
[2002] ECR II-163, paragraph 112).
91     It is in the light of those principles that each of the three parts of this plea should be considered.
─ First part: use of an external consultant
92     In this first part, the applicant submits that the use by the European Central Bank of an external consultant constituted
a breach of her rights of defence.
93     It must be noted, as a preliminary point, that neither the disciplinary procedure provided for by the Conditions of Employment
nor the Staff Rules prohibit the European Central Bank from having recourse to an external consultant to carry out an investigation
prior to a disciplinary procedure.
94     However, it must be determined whether, in the present case, the use of the consultant could in one way or other have affected
the applicant’s right to be heard and effectively to present the arguments necessary for her defence.
95     On this point, the applicant puts forward a number of arguments based essentially on, first, the lack of neutrality of the
external consultant as against the European Central Bank, second, the inadequacy of his knowledge of languages, third, the
lack of neutrality of his mandate, and, fourth, his failure to examine certain relevant documents.
96     However, even assuming that those circumstances were shown to exist, they could not in the present case have affected the
applicant’s rights of defence, as the letter of 12 June 2002 by which the European Central Bank opened the disciplinary procedure
was accompanied by the external consultant’s report and expressly mentioned, among the facts justifying the opening of a disciplinary
procedure, the ‘allegation of racism against Mr [B], proven unsubstantiated by the external [consultant’s report]’.
97     The applicant was thus aware not only of the content of the external consultant’s report but also of the Bank’s intention
of relying on the report for the purposes of the disciplinary procedure. Moreover, the applicant submitted observations on
that letter on at least two occasions, on 14 July and 30 August 2002.
98     It is true that, as the applicant says, it is not apparent from the case-file that the external consultant drew up transcripts
of his interviews with members of staff. It is apparent, however, first, that those interviews took place before the opening
of the disciplinary procedure against the applicant and, second, that the extracts from those interviews which the external
consultant considered relevant were described in his report, which was communicated to the applicant when the disciplinary
procedure was opened. She was consequently able effectively to submit observations on those findings and the consequences
drawn from them by the external consultant and the European Central Bank.
99     Moreover, once the disciplinary procedure was opened, the applicant apparently did not consider it necessary to ask for the
persons heard by the external consultant to be heard again in her presence in order to check whether the statements mentioned
in his report faithfully reflected the content of those interviews or to clarify those statements by other elements which
could confirm the truth of the facts on which her accusations were based.
100   In those circumstances, it does not appear that the use by the European Central Bank of an external consultant could have
deprived the applicant of her right to comment effectively on the factual elements relied on by the European Central Bank
to support its decision.
101   Consequently, the first part of the applicant’s third plea must be rejected.
─ Second part: communication of the complaint of aggressiveness
102   The applicant submits in this second part that, by describing the applicant’s attitude as ‘aggressive’ for the first time
in the contested decision, the European Central Bank upheld a complaint which had not been communicated to her beforehand.
103   It must therefore be examined whether the letter of 12 June 2002 by which the European Central Bank opened the disciplinary
procedure was sufficiently clear to make the applicant aware of the complaints which were ultimately upheld against her in
the contested decision.
104   Those complaints consist in the applicant having called a colleague a ‘racist’ and having made accusations against the European
Central Bank without being able to support those allegations by facts.
105   Those complaints were specifically identified in the letter of 12 June 2002.
106   In the contested decision, the European Central Bank likewise considered that the applicant’s conduct had been aggressive,
since the Bank states there that she ‘formulated unsubstantiated accusations in an aggressive and defamatory manner, using
very strong terms and subsequently failing to support them with objective elements capable of proving their pertinence in
the context of [her] personal case’.
107   As the applicant points out, that aggressiveness was not specifically mentioned in the letter of 12 June 2002.
108   However, regardless of the fact that calling a colleague a ‘racist’ may constitute an aggressive attitude, the reasoning in
the contested decision shows that it was not the aggressiveness of the applicant’s conduct as such which gave rise to the
disciplinary procedure against her, but the fact of having made unsubstantiated accusations.
109   Consequently, the aggressive tone of the accusations made by the applicant constitutes only an incidental and secondary aspect
of the acts the applicant was accused of, and was moreover included by implication in the complaints in the letter of 12 June
2002 and did not therefore have to be identified specifically in that letter.
110   The second part of the plea is therefore unfounded.
─ Third part: characterisation in law of the alleged conduct
111   In this third part, the applicant complains that the European Central Bank infringed her rights of defence by characterising
in law the conduct she was accused of for the first time in the contested decision.
112   In that decision the European Central Bank considered that the applicant’s behaviour had lacked ‘professionalism and respect
towards colleagues’. The Bank found that the applicant had thereby breached Article 4(a) of the Conditions of Employment and
Articles 2(1) and 5(1) of the Code of Conduct.
113   The letter of 12 June 2002 by which the European Central Bank opened a disciplinary procedure against the applicant said that
‘the standards prevailing within the ECB do not allow staff members to adopt an attitude lacking in professionalism and respect
towards a colleague’. The applicant was thus informed clearly of the fact that the Bank intended to charge her with failing
to comply with her duties of professionalism and respect, which in itself constitutes a partial characterisation in law.
114   Nevertheless, as the applicant points out, in its letter of 12 June 2002 the European Central Bank did not refer expressly
to Article 4(a) of the Conditions of Employment or to Articles 2(1) and 5(1) of the Code of Conduct. It must therefore be
determined whether the failure to mention those provisions deprived the applicant of her right effectively to be heard.
115   As regards, first, the failure to refer to Article 2(1) and 5(1) of the Code of Conduct, it should be noted that Article 1
of the Code states generally that it ‘makes explicit the ethical conventions and standards by which the ECB considers it necessary
for the addressees to abide and clarifies the benchmarks against which fulfilment of the obligations already assumed by the
addressees will be measured’. The express function of the Code of Conduct is thus to constitute a reference guide addressed
to the members of the Bank’s staff, so that they can know the extent of the duties and obligations expected of them.
116   Moreover, the wording of Articles 2(1) and 5(1) of the Code of Conduct sets out in clear and general terms the duties of respect
and professionalism required of members of the staff of the Bank.
117   Consequently, since the applicant was aware that she was accused of failures to comply with her duties of respect and professionalism,
simply consulting the Code of Conduct enabled her to find that those duties were expressly mentioned there.
118   Having regard to the knowledge the applicant must have had of the provisions governing her employment relationship with the
European Central Bank, she must therefore have known or be deemed to have known that the partial characterisation in law in
the letter of 12 June 2002 referred to Articles 2(1) and 5(1) of the Code of Conduct.
119   Therefore, even though the European Central Bank’s letter of 12 June 2002 lacked detail as regards the points of law the Bank
intended to rely on in the disciplinary procedure, in the circumstances of the case the brevity of that explanation did not
prevent the applicant from being effectively heard on the application of Articles 2(1) and 5(1) of the Code of Conduct.
120   Next, as regards the European Central Bank’s decision to base the contested decision on Article 4(a) of the Conditions of
Employment, it is clear that the wording of that provision does not explicitly set out obligations of professionalism and
respect. Consequently, the applicant could not, on the sole basis of the letter of 12 June 2002, be taken to know that that
provision would be relied on against her in the contested decision. The applicant was not therefore able effectively to submit
her observations on that point of law on which the contested decision was based.
121   However, it is clear from the reasoning in the contested decision that from the point of view of the European Central Bank
the applicant’s breach of Articles 2(1) and 5(1) of the Code of Conduct in itself justified the imposition and severity of
the disciplinary measure imposed, so that the fact that it was not possible for the applicant to make observations on the
application of Article 4(a) of the Conditions of Employment could not affect that decision.
122   It follows from those considerations that the third part of the plea, and consequently the plea in its entirety, must be rejected.

Plea of lack of proof of the alleged conduct, manifest error of assessment, and breach of the obligation to state reasons
Arguments of the parties
123   First, the applicant states in her application that the contested decision criticises her for an accusation of racism, whereas
she merely accused the management of the European Central Bank of encouraging racism by not taking her complaints seriously.
The Bank thus failed to comply with its duty to state the reasons justifying such a charge, which also constitutes a breach
of its obligation to state reasons.
124   Second, at the hearing, the applicant confirmed that she had indeed called Mr B. a ‘racist’ and had also accused members of
the management of the European Central Bank of intimidating her, encouraging xenophobia and racism, and prejudging the outcome
of the investigation. However, in her view, the material in the case-file shows that those allegations were justified.
125   Thus the applicant referred in her letter of 17 December 2001 to her unsuccessful attempt to obtain the assistance of her
management and the meetings at which she was put under pressure to withdraw her allegations. Moreover, the management had
merely proposed, as an amicable settlement, a transfer to another post with a warning. Since there was no objective justification
for those actions, it could reasonably be supposed that the management of the European Central Bank intended to protect Mr
B. In addition, while the applicant was described in her staff report as a person given to conflict, no such assessment was
made of Mr B.
126   Next, as regards the complaint that the management of the European Central Bank encouraged xenophobia and racism, the applicant
observes that none of her requests to her superiors to find a solution to her situation was taken into consideration. Moreover,
her head of division had warned her colleagues to be careful what they said because she was black, which opened the way to
treating her differently because of her skin colour.
127   Finally, the applicant observes that the solutions which were suggested to her in order to resolve the dispute could not consist
in putting pressure on her and asking her to choose between transfer to another post, outside counselling arbitration, continued
investigation by the Legal Division of the European Central Bank, and a ‘gentlemen’s agreement’. Since the Director of Human
Resources had informed her that a transfer would be accompanied by a warning, she could only decline it.
128   The European Central Bank contests the applicant’s arguments. It submits that she has failed to produce evidence of the existence
of the unequal treatment she claims to have been the victim of on the part of Mr B., as was confirmed by the external consultant’s
investigation. The applicant has also failed to support her accusations against the Bank otherwise than by referring to subjective
elements.
Findings of the Court
129   The Court will examine, first, the applicant’s argument that she was disciplined in particular for having made accusations
of racism against the management of the European Central Bank, whereas those accusations had never been made by her.
130   The paragraph of the contested decision which the applicant relies on to reach that conclusion reads as follows: ‘Making allegations
of racism and accusing members of the management of the ECB of intimidating you, of encouraging xenophobia and racism and
of having prejudged the outcome of any investigation when no facts are presented which can support such allegations and accusations
clearly violates your obligations as a staff member of the ECB.’
131   Having regard to the content of the letter of 12 June 2002 and the context in which it was written, the Court considers that
the expression ‘[m]aking allegations of racism’ refers solely to the applicant’s accusations against Mr B. Consequently, in
the contested decision, the European Central Bank did not accuse the applicant of having accused it directly of racism, so
that all the applicant’s arguments relating to this alleged complaint, including the part of her argument concerning an alleged
breach of the obligation to state reasons, may be rejected without further examination.
132   It is apparent, on the other hand, that the contested decision accuses the applicant of having made the following, unsubstantiated,
allegations: accusations of racism against Mr B.; accusations of attempts at intimidation on the part of the European Central
Bank; accusations that the European Central Bank had encouraged xenophobia and racism; accusations that the European Central
Bank had prejudged the outcome of its investigation.
133   Since the applicant confirmed at the hearing that she did not deny having made those accusations, the only material question
in this case is whether, contrary to what the European Central Bank asserted in the contested decision, she produced any evidence
to substantiate them.
134   With respect, first, to the accusation of racism against Mr B., the case-file shows that the points put forward by the applicant
before the contested decision was adopted, in particular in her complaint of 19 June 2001, her memorandum of 31 July 2001,
her memorandum of 17 December 2001 and her memorandum of 14 July 2002, do not constitute material and objective evidence from
which racist behaviour towards the applicant on the part of Mr B. could be supposed to exist. While it is clear that relations
between the applicant and Mr B. were particularly strained, the Court nevertheless considers that there is nothing in the
case-file to show, or even raise a supposition, that the bad relations had a racial context.
135   With respect, second, to the accusations that the European Central Bank had attempted to intimidate the applicant, it is clear
that the various matters put forward by her to justify her allegations, in particular in her observations of 17 December 2001,
are not themselves based on specific objective evidence capable of proving them to a sufficient legal standard.
136   With respect, third, to the allegation that the European Central Bank had encouraged racism and xenophobia, this accusation
is essentially based on the fact that the Bank did not take her complaints against Mr B. seriously.
137   The various matters referred to by the applicant are not, however, capable either of establishing to a sufficient legal standard
that she made a formal complaint to her superiors of discrimination on grounds of race before submitting her complaint of
19 June 2001 or, in any event, of raising a presumption that the European Central Bank encouraged racism and xenophobia by
not following up those complaints.
138   Thus, first, the mere fact that in her comments on her staff report for the period from 1 January to 23 November 1999 the
applicant said that her colleagues spoke German in her presence although she does not understand that language does not constitute
a complaint of discrimination on racial or ethnic grounds.
139   Next, the applicant has not shown to a sufficient legal standard that the oral complaints she states she made to her head
of division on 17 March and 15 June 2000 were also intended as complaints of discrimination on racial or ethnic grounds.
140   Furthermore, while the applicant states that on 13 July 2002 she had lunch with some of her superiors and complained on that
occasion of Mr B.’s racist behaviour, those mere allegations do not enable the Court to assess the seriousness and extent
of the complaints allegedly made.
141   In addition, while the applicant indeed submitted a formal complaint on 19 June 2001 in which she requested the European Central
Bank to point out to Mr B. that acts of discrimination in the workplace constitute offences, an examination of that complaint
shows that she nowhere said that the discrimination complained of was linked in her opinion to ethnic or racial grounds. In
any event, after the applicant submitted her complaint of 19 June 2001, the Bank arranged several meetings in order to enable
her to submit her complaints against Mr B., and before initiating the disciplinary procedure the Bank appointed an external
consultant to investigate whether the racist behaviour complained of by the applicant had actually taken place.
142   Moreover, the allegation that the applicant’s head of division asked her colleagues to be careful what they said because she
was black has not been supported by any factual evidence.
143   Finally, the applicant has not adduced any material from which it could be supposed that the European Central Bank had had
the intention to dismiss her because she had identified a racist. In her application, the applicant supports that accusation
by relying on certain facts which allowed her to suppose that her superiors intended to protect Mr B. But even supposing that
the applicant has shown to a sufficient legal standard that that supposition was a legitimate one, which is not the case,
the mere intention of protecting Mr B. rather than the applicant would not in any way demonstrate that the managers of the
Bank had the correlative intention to dismiss her.
144   The elements relied on by the applicant are not thus sufficient to prove or even raise a supposition that the European Central
Bank encouraged racism and xenophobia.
145   With respect, fourth, to the applicant’s allegation that the European Central Bank prejudged the outcome of its investigation,
it does not appear from the case-file that the Bank displayed such prejudice.
146   Thus, to begin with, the letter of 26 June 2001 by which the European Central Bank called the applicant and Mr B. to the meeting
of 17 July 2001 indicated clearly that disciplinary measures could be taken against either of those persons.
147   Next, the applicant’s allegations concerning the bias said to have been shown by some of her superiors, in particular at the
meetings of 17 and 18 July 2001, are not supported by any specific evidence capable of proving them to a sufficient legal
standard.
148   Finally, the letter dated 12 November 2001 sent to the applicant by the Director of Personnel of the European Central Bank,
which aroused certain of the applicant’s accusations, is worded in altogether neutral terms. The letter also indicates that,
since it had not been possible to reach an amicable settlement between Mr B. and the applicant, a disciplinary procedure could
be initiated against whichever of them had failed to comply with obligations, without in any way prejudging whether this could
be the applicant rather than Mr B.
149   In short, the applicant has not produced any evidence to show, or even to raise a supposition, that her accusations against
Mr B. and the European Central Bank were well founded. This plea in law must consequently be rejected.

Plea of infringement of Article 8 of Directive 2000/43
Arguments of the parties
150   The applicant observes that Article 8 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) states:
‘[W]hen persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish,
before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination,
it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.’
151   The applicant considers that in the present case she established before the European Central Bank facts from which it might
be presumed that she had been discriminated against. During the investigation, however, it was the applicant, not the Bank,
who had to prove her case.
152   The European Central Bank submits in response that Directive 2000/43 entered into force on 19 July 2000, in other words well
after the applicant started to accuse certain colleagues of discrimination, and that the directive was moreover to be transposed
by the Member States by 19 July 2003 at the latest. The Bank therefore questions what legal effects the directive could have
in the present case. In any event, the Bank also notes, the provisions of the directive were complied with.
Findings of the Court
153   Under Article 9(c) of the Conditions of Employment, the European Central Bank is to apply ‘the rules contained in the EC regulations
and directives concerning social policy which are addressed to Member States’.
154   In the present case, it is common ground that Directive 2000/43 is addressed to the Member States and concerns social policy.
That directive must therefore be applied by the European Central Bank pursuant to Article 9(c) of the Conditions of Employment.
155   The European Central Bank nevertheless questions the potential legal effects of the directive for the Bank before the latest
date for its transposition by the Member States.
156   The Court considers that there is no need to rule on that point in the present case and that it suffices to state that the
plea raised by the applicant is not supported by the facts.
157   The reversal of the burden of proof prescribed by Article 8 of Directive 2000/43 applies only where the party who considers
herself wronged establishes ‘facts from which it may be presumed that there has been direct or indirect discrimination’.
158   The expression ‘direct or indirect discrimination’ for the purposes of Directive 2000/43 is defined in Article 2.
159   Thus, under Article 2(1)(a) of Directive 2000/43, direct discrimination is taken to occur ‘where one person is treated less
favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin’.
160   Further, under Article 2(1)(b) of Directive 2000/43, indirect discrimination is taken to occur ‘where an apparently neutral
provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with
other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of
achieving that aim are appropriate and necessary’.
161   Moreover, Article 2(3) of Directive 2000/43 states that harassment is deemed to be discrimination ‘when an unwanted conduct
related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating
an intimidating, hostile, degrading, humiliating or offensive environment’.
162   In the present case, as the Court found in its examination of the preceding plea in law, the applicant has not shown that
she had adduced evidence from which it might be presumed that the unfavourable treatment she considered to have been shown
her by Mr B. and the European Central Bank was related to racial or ethnic grounds. Nor, moreover, has the applicant produced
evidence from which it might be presumed that that conduct could put persons of a racial or ethnic origin at a particular
disadvantage compared with other persons.
163   The applicant has not thus adduced any facts from which it could be presumed that there was direct or indirect discrimination
within the meaning of Directive 2000/43.
164   This plea is therefore unfounded.

Plea of infringement of Articles 7, 8 and 9 of Directive 2000/43
Arguments of the parties
165   The applicant notes that Articles 7(1), 8(1) and 9 of Directive 2000/43 require the Member States to introduce certain procedural
guarantees for all persons ‘who consider themselves wronged’ by failure to comply with the principle of equal treatment, in
particular protection against ‘any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings
aimed at enforcing compliance with the principle of equal treatment’.
166   In the present case, even though the applicant considered that she had been subjected to differential treatment, the European
Central Bank had remained inactive until Mr B. and the applicant made complaints. Moreover, a reprisal measure was subsequently
taken against the applicant because she had considered herself wronged by a breach of equal treatment.
167   In reply, the European Central Bank again points out that the facts which gave rise to the reprimand issued to the applicant
predated the end of the period prescribed for transposition of the directive, and that it complied with the principles laid
down in the directive.
Findings of the Court
168   This plea consists of three parts, based on Articles 7, 8 and 9 of Directive 2000/43 respectively, which should be examined
successively.
169   As regards, first, the application in the present case of Article 7 of Directive 2000/43, that article provides that ‘Member
States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation
procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged
by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged
to have occurred has ended’.
170   In the present case, the applicant complains that ‘no action was taken’ by the European Central Bank despite her complaints.
However, as may be seen from paragraphs 138 to 144 above, first, the applicant has not shown to a sufficient legal standard
that she brought complaints intended to enforce compliance with the principle of equal treatment before 19 June 2001 and,
second, once her complaint had been lodged on 19 June 2001 the European Central Bank did not remain inactive. This part of
the plea must therefore be rejected.
171   The applicant relies, second, on an infringement of Article 8 of Directive 2000/43. However, in this part of the plea, the
applicant does not put forward any new argument beyond those relating to the previous plea, so that this part must also be
rejected.
172   As regards, finally, Article 9 of Directive 2000/43, that article provides that ‘Member States shall introduce into their
national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence
as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment’.
173   In the present case, the applicant criticises the European Central Bank for disciplining her because she considered herself
wronged by reason of a breach of the principle of equal treatment.
174   However, it is apparent from the contested decision that the applicant was not disciplined for having formally made a complaint
or having brought legal proceedings aimed at enforcing the principle of equal treatment, but for having directly called Mr
B. a ‘racist’ without producing sufficient evidence to support that accusation and for having made unsupported accusations
against the management of the European Central Bank.
175   Consequently, without there being any need to rule on the date on which Directive 2000/43 started to apply to the employment
relationships between the European Central Bank and its staff, it is clear that the sixth plea in law has no foundation in
fact or in law, and must therefore be rejected.

Plea of infringement of Article 4(a) of the Conditions of Employment, of the Code of Conduct of the European Central Bank
and of the obligation to state reasons, and manifest error of assessment
Arguments of the parties
176   The applicant submits that she was in breach neither of Article 4(a) of the Conditions of Employment of the European Central
Bank nor of its Code of Conduct. By basing the contested decision on those grounds, the Bank both infringed those two instruments
and its obligation to state reasons and also committed a manifest error of discretion.
177   The applicant notes that Article 4(a) of the Conditions of Employment lays down an obligation on the staff of the European
Central Bank to act in the sole interest of that institution. The applicant’s attitude remained loyal in all respects when
she drew the Bank’s attention to her difficult working conditions. She never gave her interests priority over the Bank’s and
was never influenced by any person from outside.
178   The applicant then observes that Article 2(1) of the Code of Conduct provides that no form of harassment is tolerated and
that members of staff must show sensibility to and respect for others and stop any behaviour seen as offensive by another
person at that person’s first indication.
179   The applicant further observes that, according to Article 5(1) of the Code of Conduct, its implementation depends on the professionalism,
conscience and common sense of the members of staff. That article mentions the vigilance which must be shown by members of
staff in positions of authority and the exemplary conduct expected of them.
180   However, the European Central Bank has not referred to any indication by Mr B. or its management to the applicant that her
conduct was seen as offensive. On the contrary, it was the applicant who indicated to Mr B. and her management on several
occasions that she considered Mr B.’s behaviour to be offensive.
181   The European Central Bank rejects those arguments. It considers that the applicant infringed Article 4 of the Conditions of
Employment, which is based on the fundamental duty of loyalty and cooperation which all officials owe to the institution to
which they belong and to their superiors.
Findings of the Court
182   In this plea the applicant contests that she infringed Article 4(a) of the Conditions of Employment and Articles 2(1) and
5(1) of the Code of Conduct. Since in the contested decision the European Central Bank considered that the applicant’s breach
of Article 4(a) of the Conditions of Employment followed from the breach of more specific duties imposed by Articles 2(1)
and 5(1) of the Code of Conduct, the Court will analyse first whether by her conduct the applicant did in fact infringe those
two provisions.
─ Application of Articles 2(1) and 5(1) of the Code of Conduct
183   Article 2(1) of the Code of Conduct imposes a general duty of ‘sensitivity to and respect for others’ on the staff of the
European Central Bank.
184   Moreover, Article 5(1) of the Code of Conduct provides that application of the code depends in particular on the professionalism
and conscience of the staff of the European Central Bank. Article 5(1) of the Code of Conduct thus clearly imposes on the
staff of the Bank a general duty of professionalism.
185   In the present case, as appears from paragraph 134 above, the applicant accused a colleague of being a racist without being
able to produce objective evidence from which it might be supposed that her allegations were well founded.
186   The applicant also made accusations in forthright terms against her management, again without supporting them by sufficient
objective evidence.
187   Those two actions constitute failures on the part of the applicant to comply with her duty of respect to the other members
of staff of the European Central Bank and with her duty of professionalism.
188   The European Central Bank thus did not err in law in considering that the applicant had infringed Articles 2(1) and 5(1) of
the Code of Conduct.
─ Application of Article 4(a) of the Conditions of Employment
189   Under Article 4(a) of the Conditions of Employment, staff of the European Central Bank are required to ‘perform their duties
conscientiously and without regard to self-interest’ and to ‘conduct themselves in a manner befitting their position and the
character of the ECB as a Community body’.
190   Under Article 9(c) of the Conditions of Employment, ‘[i]n interpreting the rights and obligations under the present Conditions
of Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case-law which apply
to the staff of the EC institutions’.
191   Article 12 of the Staff Regulations of Officials of the European Communities prescribes that ‘[a]n official shall abstain
from any action and, in particular, any public expression of opinion which may reflect on his position’. According to settled
case-law, that provision is intended to ensure that Community officials, in their conduct, present a dignified image which
is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international
civil service (see Case T-146/94
Williams
v
Court of Auditors
[1996] ECR-SC I-A-103 and II-329, paragraph 65, and Case T-273/94
N
v
Commission
[1997] ECR-SC I-A-97 and II-289, paragraph 127).
192   Moreover, according to settled case-law, the first paragraph of Article 21 of the Staff Regulations of Officials of the European
Communities establishes a duty of loyalty and cooperation for all officials in respect of the institution to which they belong
and their superiors (Case 3/66
Alfieri
v
Parliament
[1966] ECR 437, at 448, and Case T-146/89
Williams
v
Court of Auditors
[1991] ECR II-1293, paragraph 72). That duty of loyalty and cooperation entails not only positive obligations but also,
a fortiori
, a negative obligation, in general terms, to refrain from conduct likely to prejudice the dignity and respect due to the
institution and its authorities (see Case T-146/89
Williams
v
Court of Auditors
, paragraph 72, Case T-259/97
Teixeira Neves
v
Court of Justice
[2000] ECR-SC I-A-169 and II-773, paragraphs 44 to 47, and
Onidi
v
Commission
, paragraph 73).
193   In view of the express reference in Article 9(c) of the Conditions of Employment to the rules applicable to officials of the
European Communities, the obligation on members of staff of the European Central Bank, pursuant to Article 4(a) of the Conditions
of Employment, to conduct themselves ‘in a manner befitting their position and the character of the ECB as a Community body’
must be interpreted as imposing on the staff of the Bank similar duties of loyalty and dignity to those which apply to officials
of the European Communities.
194   In the present case, the applicant, first, directly called Mr B. a ‘racist’ without being able to support her serious accusations
and without the internal and external investigations ordered by the European Central Bank being able subsequently to strengthen
their credibility.
195   For a member of the staff of the European Central Bank to make such an accusation without being able to produce evidence from
which the existence of unequal treatment might be presumed constitutes a breach of the duty of dignity to which that member
of staff is subject.
196   Such conduct is also incompatible with the duty on members of the staff of the European Central Bank, pursuant to Article
4(a) of the Conditions of Employment, to perform their duties conscientiously, since it is liable to disturb the proper functioning
of the service, in particular because of the tensions it may give rise to and the damage to the reputation of the persons
targeted by it.
197   The applicant, second, made accusations against her superiors in her letter of 13 November 2001, without being able to produce
sufficient evidence in support of them. Those accusations were made outspokenly, without the slightest objective evidence
and in a manner which deprives them of the seemliness and loyalty required of all members of the staff of the European Central
Bank with respect to that institution.
198   The European Central Bank thus did not err in law in considering that the applicant had infringed Article 4(a) of the Conditions
of Employment. The applicant’s seventh plea in law is consequently unfounded.

Plea of manifest error of assessment and breach of the principle of proportionality
Arguments of the parties
199   The applicant recalls that, according to the case-law, the determination of the penalty to be imposed is based on a comprehensive
appraisal of all the particular facts and the aggravating or mitigating circumstances peculiar to the case (Case T-26/89
De Compte
v
Parliament
[1991] ECR II-781, paragraph 221).
200   However, the European Central Bank took account, as the sole mitigating circumstance, only of the applicant’s sick leave.
It did not take account of, in particular, the fact that the applicant believed herself wronged by the failure to comply with
the principle of equal treatment, the fact that she regarded Mr B.’s conduct as offensive, the fact that she drew her superiors’
attention to this situation on several occasions, the fact that the Bank examined her complaint only after the dispute had
reached the point of no return, the fact that the stage of disciplinary measures would never have been reached had the Bank
taken the necessary measures at the proper time, the fact that she asked in vain for the protection of her management, the
fact that her manager singularised her because of the colour of her skin, the fact that the protection provided for by Directive
2000/43 or the Code of Conduct was refused her, the fact that she was penalised for having reported a case of discrimination,
the reasonableness of the facts on which she relied in reporting that discrimination and, finally, the fact that she suffered
in her career by marginalisation within the division, lack of a salary increase based on a disputed assessment, an enforced
transfer and unjustifiable pressure to withdraw her allegations.
201   Moreover, the European Central Bank did not take account of the entirely satisfactory conditions of the applicant’s integration
into her new working environment from June 2002.
202   The European Central Bank recalls for its part that, once the truth of the facts has been established, it is for it to choose
the appropriate measure, save in cases of manifest error of assessment or misuse of powers (Case 46/72
De Greef
v
Commission
[1973] ECR 543, paragraphs 44 to 46, and Case 228/83
F.
v
Commission
[1985] ECR 275, paragraph 34). In the present case, the applicant was given the lightest of the disciplinary measures provided
for by the Conditions of Employment, and she has not put forward anything to justify being completely relieved of any penalty.
Findings of the Court
203   Application of the principle of proportionality in disciplinary matters comprises two aspects. First, it is for the appointing
authority to choose the appropriate penalty where the truth of the matters alleged against the staff member is established,
and it is not open to the Community judicature to criticise that choice unless the penalty imposed is disproportionate to
the matters alleged against the person concerned. Second, the penalty to be imposed is to be determined on the basis of an
overall assessment by the appointing authority of all the concrete facts and matters appertaining to each individual case,
inasmuch as Articles 86 to 89 of the Staff Regulations of Officials of the European Communities, like the Conditions of Employment
of the European Central Bank as regards its members of staff, do not specify any fixed relationship between the disciplinary
measures listed by them and the various types of misconduct on the part of officials, and do not state the extent to which
aggravating or mitigating circumstances are to be taken into account in the choice of penalty. Examination by the Community
judicature is therefore limited to a consideration of the question whether the weight attached by the appointing authority
to the aggravating or mitigating circumstances is proportionate, and it cannot substitute its own assessment for that of the
appointing authority (
X
v
ECB
, paragraph 221).
204   In the present case, the various factual elements put forward by the applicant do not allow the conclusion that, by issuing
her with a written reprimand, the European Central Bank committed a manifest error of assessment or breached the principle
of proportionality. They are essentially elements which are subjective or have not been established, or ones which, even if
they were shown to be true, would not be capable of releasing the applicant completely from her obligations.
205   Thus, first, contrary to the applicant’s submissions, the fact that she felt wronged because of an alleged failure to apply
equal treatment and drew that to the attention of the European Central Bank on several occasions could not dispense her from
fulfilling her duties of respect, professionalism and loyalty, particularly as she has not adduced any elements from which
it might be concluded that Mr B. or the European Central Bank failed to comply with the principle of equal treatment.
206   Second, the applicant has not shown to a sufficient legal standard either that her manager had singularised her because of
her skin colour or that, assuming that singularisation to be established, however regrettable it may have been, it justified
dispensing the applicant completely from any penalty for the misconduct on her part.
207   Third, the applicant cannot rely to any purpose on the refusal of the European Central Bank to give her the protection provided
for by Directive 2000/43 or the Code of Conduct. As is apparent from paragraphs 156 to 164 and 168 to 175 above, she has not
shown that Directive 2000/43 was applicable to her case. Nor has she shown how the application of the Code of Conduct, in
particular the last sentence of Article 2(1), would justify protection to the extent of a complete dispensation from any penalty,
particularly as she was not penalised for having prevented or reported harassment or bullying, but for having made several
serious accusations without being able to produce evidence capable of supporting them to a sufficient legal standard.
208   Fourth, contrary to the applicant’s submissions, as is apparent from the grounds of the contested decision, the applicant
was not penalised for having reported discrimination but for having, by her use of invective, failed to comply with her duties
of respect, professionalism, dignity and loyalty.
209   Fifth, the applicant cannot rely to any purpose on the fact that the arguments she put forward to report a case of discrimination
were ‘reasonable’ since, as may be seen from paragraphs 129 to 149 above, she was not able to point to any evidence from which
it could be supposed that the facts alleged by her were correct.
210   Sixth, the applicant cannot argue to any purpose that she was penalised, as well as by the contested decision, by ‘marginalisation
in the division, no salary increase based on [a contested appraisal], forced move and undue pressure ... to withdraw [the]
allegation’. She has not proved to a sufficient legal standard either than those events, assuming them to be established,
constituted sanctions connected with the events which gave rise to the present case or that they were sufficient to allow
the conclusion that the additional imposition on the applicant of a written reprimand constituted a manifest error of assessment
or a disproportionate penalty.
211   Seventh and finally, the circumstance that the applicant successfully integrated into her new team did not require the European
Central Bank to exempt her from penalties in respect of events prior to that.
212   In addition to examining the points put forward by the applicant, it should be observed that the penalty imposed on her was
the least severe of the disciplinary measures mentioned in Article 43 of the Conditions of Employment.
213   Consequently, the European Central Bank did not make a manifest error of assessment and did not infringe the principle of
proportionality in issuing a written reprimand against the applicant. The eighth plea must therefore be rejected.

Plea of breach of the duty to have regard to the interests of officials
Arguments of the parties
214   The applicant considers that the European Central Bank did not at any time take account of her situation, which led to her
being penalised for raising an issue of discrimination. She submits that she should not have to bear the consequences of the
management’s omission to take the necessary measures at the proper time.
215   In reply to a written question of the Court, the applicant explained that the alleged breach of the duty to have regard to
her interests follows from acts prior to the contested decision and that no disciplinary measure would have been taken against
her if the European Central Bank had acted in accordance with that duty.
216   The European Central Bank submits for its part that it did not infringe its duty to have regard to the applicant’s interests.
Findings of the Court
217   According to settled case-law, the duty to have regard to the interests of officials implies in particular that when the authority
takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect
its decision, and that when doing so it should take into account not only the interests of the service but also those of the
official concerned (Case T-199/01
G
v
Commission
, not yet published in the ECR, paragraph 67).
218   In the present case, this plea by the applicant essentially complains that the European Central Bank did not take her situation
and her complaints into account before adopting the contested decision.
219   However, as the Court has already held in paragraphs 138 to 144 above, first, the applicant has not proved to a sufficient
legal standard that she made complaints intended to enforce the principle of equal treatment before 19 June 2001 and, second,
once her complaint was made the European Central Bank did not remain inactive, since it carried out an investigation into
both Mr B.’s complaint and the applicant’s.
220   It does not therefore appear from the case-file that the European Central Bank took insufficient account of the applicant’s
situation before adopting the contested decision, nor indeed that, assuming that were shown to be the case, it could have
consequences capable of entailing the annulment of the contested decision.
221   The ninth plea is thus unfounded in fact and must be rejected.

The claim for compensation

Claim for compensation for the non-material damage allegedly incurred by the applicant as a result of the contested decision
Arguments of the parties
222   The applicant submits that because of the very special circumstances of the present case the annulment of the decision would
not compensate the non-material damage she incurred. The European Central Bank is responsible for aggravating the dispute
on the ground that it did not act in due time. Finally, the decision was the result of a context of harassment of the applicant.
223   The European Central Bank submits that the necessary conditions for its liability to be engaged are not satisfied.
Findings of the Court
224   For there to be non-contractual liability on the part of the Community, a number of conditions must be satisfied as regards
the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered and the existence of
a causal link between the act and the damage alleged to have been suffered. A claim by an official seeking compensation for
the non-material damage allegedly incurred as a result of the unlawful conduct of the Community body must therefore be rejected
if that unlawfulness has not been established (Case T-589/93
Ryan-Sheridan
v
EFILWC
[1996] ECR-SC I-A-27 and II-77, paragraphs 141 and 142).
225   In the present case, the applicant has not shown that the contested decision was unlawful. Her claim for compensation for
the damage allegedly suffered by her as a result of that decision must therefore be rejected.

Claim for compensation for the damage allegedly incurred by the applicant as a result of the disclosure of the report of the
investigation
Arguments of the parties
226   In reply to a written question from the Court, the applicant stated that, in her application, she was making a separate claim
for compensation for the damage suffered by her as a result of the disclosure of the external consultant’s report. Persons
other than those who should normally have had access to the report had been able to read it.
227   The applicant, on being invited by the Court to adduce evidence to support her allegations, submitted, first, that the European
Central Bank had never confirmed to her that she had been the only person to receive the report in its entirety and, second,
that one of her superiors had obtained the observations in defence she had submitted in the disciplinary procedure, from which
it could be supposed that he had also obtained the report in its entirety.
228   In response, the European Central Bank submitted at the hearing that the report in question had been transmitted in its entirety
only to the applicant, Mr B. and their direct hierarchical superiors. Moreover, it had been communicated to the persons who
had been interviewed by the external consultant only to the extent of the sections directly concerning those persons.
Findings of the Court
229   In order to rule on the applicant’s claim for compensation, the Court must first examine whether she has shown that the acts
of the European Central Bank she complains of are unlawful.
230   In the present case, the Court considers that the arguments put forward by the applicant do not establish to a sufficient
legal standard that persons other than the applicant, Mr B. and their immediate hierarchical superiors had access to the full
text of the external consultant’s report, and in particular that the persons who were interviewed by the external consultant
had access to sections other than those directly relating to their interview.
231   Moreover, it does not appear that communication of that report to the applicant’s superiors is unlawful, since, first, those
superiors are subject to obligations of professional confidentiality and, second, the applicant does not point to any specific
provision preventing those superiors from being informed of the results of an investigation which raised questions against
some of them and directly concerned the operation of the service.
232   The applicant’s claim for compensation must therefore be rejected.
233   It follows that the action must be dismissed in its entirety.

Costs
234   Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party must be ordered to pay
the costs, if costs have been applied for. However, under Article 88 of those rules, in proceedings between the Communities
and their servants, the institutions are to bear their own costs. That rule applies by analogy to the costs incurred by the
European Central Bank in the present case (see, to that effect, Joined Cases T-178/00 and T-341/00
Pflugradt
v
ECB
[2002] ECR II-4035, paragraphs 94 and 95).
235   The parties must therefore bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber),
hereby:  Dismisses the action; Orders the parties to bear their own costs.
Vesterdorf
Legal
Martins Ribeiro
Delivered in open court in Luxembourg on 16 16 March 2004.
H. Jung

B. Vesterdorf
Registrar

President
*
Language of the case: English.