# C_2013114EN.01004202.xml

| 20.4.2013 | EN | Official Journal of the European Union | C 114/42 |
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20.4.2013

EN

Official Journal of the European Union

C 114/42

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Appeal brought on 22 February 2013 by Maria Concetta Cerafogli against the judgment of the Civil Service Tribunal of 12 December 2012 in Case F-43/10 Cerafogli v ECB

(Case T-114/13 P)

2013/C 114/65

Language of the case: English

Parties

Parties

Appellant: Maria Concetta Cerafogli (Frankfurt am Main, Germany) (represented by: L. Levi, lawyer)

Appellant:

Other party to the proceedings: European Central Bank

Other party to the proceedings

Form of order sought by the appellant

Form of order sought by the appellant

The appellant claims that the Court should:

| — | Set aside the judgment under appeal; |
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Set aside the judgment under appeal;

| — | Consequently:






  — | annul the decision of the European Central Bank dated 24 November 2009 rejecting the claims of the appellant of discrimination and attempts to her dignity because of the behaviour of her management and, if necessary, the annulment of the decision dated 24 March 2010 rejecting the special appeal; |
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Consequently:

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annul the decision of the European Central Bank dated 24 November 2009 rejecting the claims of the appellant of discrimination and attempts to her dignity because of the behaviour of her management and, if necessary, the annulment of the decision dated 24 March 2010 rejecting the special appeal;

| — | give the appellant the benefit of her requests as stated in her administrative review and more in particular: |
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give the appellant the benefit of her requests as stated in her administrative review and more in particular:

| — | stop any form of discrimination and mobbing against the applicant be it in verbal acts and in working assignments and arrangements; |
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stop any form of discrimination and mobbing against the applicant be it in verbal acts and in working assignments and arrangements;

| — | receive the written withdrawal by Mr G. of his offensive and threatening statements; |
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receive the written withdrawal by Mr G. of his offensive and threatening statements;

| — | in any case, order the compensation of the moral and material prejudice suffered evaluated ex aequo et bono at 50 000 EUR (moral prejudice) and at 15 000 EUR (material prejudice); |
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in any case, order the compensation of the moral and material prejudice suffered evaluated ex aequo et bono at 50 000 EUR (moral prejudice) and at 15 000 EUR (material prejudice);

ex aequo et bono

| — | order that the ECB provides the full internal administrative inquiry report with all its annexes, including the minutes of the hearings. Furthermore, that the ECB provides also all communication between the inquiry panel and/or lead inquirer and the Executive Board and/or the ECB President; |
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order that the ECB provides the full internal administrative inquiry report with all its annexes, including the minutes of the hearings. Furthermore, that the ECB provides also all communication between the inquiry panel and/or lead inquirer and the Executive Board and/or the ECB President;

| — | order the summoning of the previous Social Counselor of the defendant as a witness. |
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order the summoning of the previous Social Counselor of the defendant as a witness.

| — | order the defendant to pay all the costs of both the appeal and of the first instance. |
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order the defendant to pay all the costs of both the appeal and of the first instance.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the appeal, the appellant relies on five pleas in law.

| 1. | First plea in law, alleging violation of the rights of defence, dénaturation of the file, violation of the principle of proportionality, violation of Article 20 of Regulation (EC) No 45/2001 (1) and violation of the right to an effective legal remedy. In this respect, the appellant states that the EU Civil Service Tribunal (‘CST’) erred in law and infringed her rights of defence by considering that she may not rely on the ECB’s obligation to observe the rights of the defence. Indeed, the decision rejecting her request for assistance significantly affected the appellant’s interests and, in addition, the procedure was ‘initiated’ against the appellant in the meaning specified by the case law (Commission v Lisrestal). Given the failure to allow the appellant to take cognizance of the file, the appellant was also unable to defend her rights with regard to the file in satisfactory conditions before the European judicature, with the result that her right to an effective legal remedy has also been infringed. |
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1.

First plea in law, alleging violation of the rights of defence, dénaturation of the file, violation of the principle of proportionality, violation of Article 20 of Regulation (EC) No 45/2001 (1) and violation of the right to an effective legal remedy. In this respect, the appellant states that the EU Civil Service Tribunal (‘CST’) erred in law and infringed her rights of defence by considering that she may not rely on the ECB’s obligation to observe the rights of the defence. Indeed, the decision rejecting her request for assistance significantly affected the appellant’s interests and, in addition, the procedure was ‘initiated’ against the appellant in the meaning specified by the case law (Commission v Lisrestal). Given the failure to allow the appellant to take cognizance of the file, the appellant was also unable to defend her rights with regard to the file in satisfactory conditions before the European judicature, with the result that her right to an effective legal remedy has also been infringed.

dénaturation

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Commission v Lisrestal

| 2. | Second plea in law, alleging violation of the right to an effective legal remedy and of the duty of the judge to state reasons. In this respect, the appellant asked the CST to order the ECB to produce, pursuant to Article 55 of the CST Rules of Procedure, the file of the inquiry including the annexes to the inquiry report and the minutes of the hearings. The challenged judgment refused to take these measures of organization of the procedure in violation of the appellant’s rights to an effective legal remedy and to the duty of the judge to state reasons. |
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2.

Second plea in law, alleging violation of the right to an effective legal remedy and of the duty of the judge to state reasons. In this respect, the appellant asked the CST to order the ECB to produce, pursuant to Article 55 of the CST Rules of Procedure, the file of the inquiry including the annexes to the inquiry report and the minutes of the hearings. The challenged judgment refused to take these measures of organization of the procedure in violation of the appellant’s rights to an effective legal remedy and to the duty of the judge to state reasons.

| 3. | Third plea in law, alleging violation of the mandate of the panel and of the duty of assistance, as the findings of both reviews (i.e. the inquiry and the CST) is very limited since it proved only that there were colleagues who reported the negative statements on the appellant and her work. But this missed the scope of her request of assistance — and therefore of the mandate of the panel — notably to assess the findings on the negative comments on her. Furthermore, the contested judgment ignores the unfairness of this situation, notably that the appellant was not informed of the reported negative views, thus was put in a helpless situation, whereby her reputation was damaged, and she could not defend herself. |
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3.

Third plea in law, alleging violation of the mandate of the panel and of the duty of assistance, as the findings of both reviews (i.e. the inquiry and the CST) is very limited since it proved only that there were colleagues who reported the negative statements on the appellant and her work. But this missed the scope of her request of assistance — and therefore of the mandate of the panel — notably to assess the findings on the negative comments on her. Furthermore, the contested judgment ignores the unfairness of this situation, notably that the appellant was not informed of the reported negative views, thus was put in a helpless situation, whereby her reputation was damaged, and she could not defend herself.

| 4. | Fourth plea in law, alleging violation of Article 6(5) of the Administrative Circular 1/2006 of the Executive Board of the ECB of 21 March 2006 on internal administrative inquiries as the challenged judgment wrongly considered that the communication of the inquiry report together with the whole file would only be in the communication to the person conducting the inquiry. |
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4.

Fourth plea in law, alleging violation of Article 6(5) of the Administrative Circular 1/2006 of the Executive Board of the ECB of 21 March 2006 on internal administrative inquiries as the challenged judgment wrongly considered that the communication of the inquiry report together with the whole file would only be in the communication to the person conducting the inquiry.

| 5. | Fifth plea in law, alleging violation of the manifest error of assessment and of the duty of the judge to state reasons, as the definition of the manifest error of assessment given by the challenged judgment is not compliant with the case law of the General Court. Also, the contested judgment violated its control of the manifest error. |
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5.

Fifth plea in law, alleging violation of the manifest error of assessment and of the duty of the judge to state reasons, as the definition of the manifest error of assessment given by the challenged judgment is not compliant with the case law of the General Court. Also, the contested judgment violated its control of the manifest error.

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(1)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1)

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