Opinion of the Advocate General — ECLI:EU:C:2023:17
Date: 2023-01-12
Language of the case: English
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Appeal - inadmissible;Staff cases;Action for damages

summary of the content of paragraphs 29 to 32 of the contested dismissal decision, they do not reveal any distortion of that decision. 78 Furthermore, it follows from those paragraphs that, contrary to what the appellant claims, the lack of genuineness of the invoices for learning support was not an essential condition for his dismissal, since the ECB based that decision, as the General Court pointed out in paragraph 120, not on such lack of genuineness, but on negligence on the part of the appellant, which it considered to be particularly serious. 79 Moreover, although, in paragraph 124 of the judgment under appeal, the General Court found that the Executive Board’s refusal to reopen the proceedings after learning of the closure of the investigation into the invoices for learning support was based in particular on the fact that the Public Prosecutor’s Office had confirmed that there was no official registration of C and that the tax number appearing on its invoices was not true, there was no clear distortion of such a finding based, as is apparent from paragraph 24 of that judgment, on the letter from the Public Prosecutor’s Office sent to the ECB on 30 April 2019 and registered on 15 May 2019, nor is there any misreading of that letter by the General Court. 80 Finally, according to settled case-law, the presumption of innocence is a general principle of EU law, which is set out in Article 48(1) of the Charter. That principle is breached where a judicial decision or an official statement concerning an accused person contains a clear statement, made in the absence of a final conviction, that the person concerned has committed the offence in question. In that context, as the General Court rightly pointed out in paragraph 118 of the judgment under appeal, the importance of the choice of words used by the public authorities, as well as the particular circumstances in which they were formulated and the nature and context of the proceedings in question, must be emphasised (see, to that effect, judgment of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 62 and the case-law cited). 81 As the General Court also noted in paragraph 123 of the judgment under appeal, one of the purposes of the presumption of innocence is to prevent individuals who have benefited from a waiver of prosecution from being treated by the public authorities as if they were in fact guilty of the offence attributed to them (ECtHR, 28 June 2018, G.I.E.M. S.R.L. and Others v. Italy, CE:ECHR:2018:0628JUD000182806, § 314). 82 Moreover, it follows from the case-law of the European Court of Human Rights that there is no automatic violation of the presumption of innocence when a person is found guilty of a disciplinary offence on the basis of facts identical to those referred to in a previous criminal charge which did not result in a conviction. Provided that they do not assert criminal responsibility, disciplinary bodies have the power and capacity to establish independently the facts of the cases brought before them (ECtHR, 13 April 2021, Istrate v. Romania, CE:ECHR:2021:0413JUD004454613, § 59). 83 As the General Court found in paragraphs 120 and 125 of that judgment, no finding of guilt in respect of the offence of fraud which was the subject of the criminal investigation is apparent from the contested decisions, so that the General Court did not err in law in holding, in paragraphs 121 and 125 of that judgment, that the adoption of the contested decisions did not breach the appellant’s right to be presumed innocent. 84 In the light of the foregoing, the third ground of appeal must be rejected. The fourth ground of appeal Arguments of the parties 85 By his fourth ground of appeal, which refers to paragraphs 139 to 146 of the judgment under appeal, the appellant claims that the General Court wrongly rejected the fourth plea at first instance, alleging infringement of Article 8.3.7 of the Staff Rules and the principle of impartiality. First of all, the General Court erred in law in holding that the Disciplinary Committee had not acted unreasonably or conducted a biased search in verifying the appellant’s assertion that he was in the habit of paying his invoices in cash, whereas the legal question which the General Court had to examine was whether the procedure provided for authorised that committee to carry out such verifications. The General Court should have found that that was not the case, as the mandate given to that committee concerned only physiotherapy invoices and pharmacy receipts. 86 The appellant adds that that committee was biased, that its personal file could not reveal any information and that the case-law cited by the General Court does not support its considerations. Lastly, the General Court distorted the file in so far as the fact, noted by the appellant in paragraph 141 of the judgment under appeal, that his previous counsel had doubted whether each payment by B corresponded to a withdrawal was not included in the contested decisions, and it substituted itself for the Disciplinary Committee by putting forward reasons which were not those which had guided it. It follows that the invoices for learning support were collected in breach of the essential procedural requirements and constituted unlawful evidence. 87 The ECB contends that that ground of appeal is unfounded. Findings of the Court 88 By his fourth ground of appeal, the appellant claims, in essence, that the procedure followed by the Disciplinary Committee in collecting the invoices for learning support as evidence was unlawful and that those invoices were not obtained regularly, which, in accordance with the case-law cited in paragraph 53 of the present judgment, is admissible in an appeal. 89 However, in so far as, by those arguments, the appellant criticises the General Court for not having assessed that legal question or the plea raised before it, those arguments cannot succeed. 90 It is clear from paragraph 145 of the judgment under appeal that the General Court necessarily found that that committee was authorised to consult his personal file and to carry out investigations in that file, and that the procedure it had followed to collect the invoices for learning support was legal. 91 In that regard, first, it should be noted that the reasoning of the General Court may be implicit provided, in particular, that it enables the interested parties to know the reasons why their arguments were not upheld and the Court of Justice to have sufficient information to carry out its review, which is the case here (see, to that effect, judgment of 9 March 2017, Ellinikos Chrysos v Commission, C‑100/16 P, EU:C:2017:194, paragraph 32 and the case-law cited). 92 Secondly, contrary to what the appellant claims, that reasoning is not vitiated by an error of law. 93 While the Disciplinary Committee’s terms of reference did indeed relate to physiotherapy invoices and pharmacy receipts, as the appellant had maintained at first instance, the General Court rightly considered, in particular in paragraphs 136 and 145 of the judgment under appeal, that the committee’s task, under the Staff Rules, was to investigate and establish the facts as thoroughly as possible, to give an opinion on their accuracy, to assess their seriousness and to propose a possible disciplinary measure. In order to fulfil that task, that committee may need access to the personal file of the person at issue. 94 Moreover, in making such findings, the General Court in no way substituted itself for the Disciplinary Committee, contrary to what the appellant claims. 95 For the remainder, it appears that the appellant is confining himself to repeating arguments which he presented before the General Court without explaining precisely why the latter erred in law by rejecting them, and that he is thus seeking to obtain a fresh assessment of the facts and evidence by the Court of Justice, which does not fall within its jurisdiction in the context of the appeal, as is clear from the case-law cited in paragraph 53 of the present judgment, apart from any possible distortion. 96 Finally, in so far as the appellant raises such a complaint of distortion, he does not indicate precisely which evidence was distorted by the General Court or, a fortiori, demonstrate any errors of analysis which the latter may have made, contrary to the requirements of the case-law referred to in paragraph 73 of the present judgment. 97 It follows that the fourth ground of appeal must be rejected. The fifth ground of appeal Arguments of the parties 98 By its fifth ground of appeal, the appellant claims that the General Court erred in law in rejecting the sixth plea in law alleging manifest errors of assessment. In addition to the fact that paragraphs 163 and 164 of the judgment under appeal were erroneous for the reasons given in support of his third ground of appeal, the General Court erred in law in paragraphs 165, 166 and 173 of that judgment, in so far as the appellant had shown that the ECB had failed to take into account numerous items of evidence, in particular the statements of his wife and daughters. The appellant adds that, contrary to what is stated in paragraph 160 of that judgment, the General Court did not ensure the effectiveness of the judicial review guaranteed by Article 47 of the Charter, in that it did not exercise full control over the accuracy of the facts and the probative value of the evidence, nor did it verify its material accuracy, reliability and consistency or carry out a thorough examination of that evidence. 99 The ECB contends that that ground of appeal is inadmissible and, in any event, unfounded. Findings of the Court 100 As is apparent from paragraphs 158 to 162 of the judgment under appeal, which are not challenged in the present appeal, the General Court reclassified the sixth plea in law at first instance as alleging not manifest errors of assessment by the ECB in the grounds of the contested dismissal decision but an incomplete examination of the circumstances of the case by the ECB, errors in the assessment of the evidence and an error of law. The General Court considered that such a reclassification was necessary since, in accordance with the requirement of effectiveness of judicial review guaranteed by Article 47 of the Charter, it was incumbent on it, as is clear from paragraph 160 of the judgment under appeal, to exercise full review of the accuracy of the facts, to verify the factual accuracy of the evidence relied on as well its reliability and consistency, and to carry out a full review of the assessment of the probative value of a document and a thorough examination of the evidence. 101 In considering that plea, the General Court rejected, in paragraphs 163 and 164 of the judgment under appeal, the appellant’s claim that the ECB had disregarded the closure of the criminal proceedings relating to the invoices for learning support, a claim which was merged with the third and seventh pleas in law at first instance, which were held to be unfounded. In paragraphs 165 and 166 of that judgment, it stated that, while the appellant claimed that the ECB had disregarded his statements and those of his family in considering that the invoices of Tutor C were not sincere and genuine, he had merely reproduced his statements and those of his wife made during the administrative procedure, without explaining why the ECB had committed an error of assessment in not finding them convincing and in noting that he had not adduced any evidence to substantiate them. Furthermore, in paragraph 173 of that judgment, the General Court found that the appellant argued to no avail that the ECB had ignored the fact that the condition of one of his children did not require knowledge of C’s contact details in order to organise lessons. 102 First of all, in so far as, in his appeal, the appellant refers to the arguments put forward in support of the third ground of appeal in order to contest paragraphs 163 and 164 of the judgment under appeal, those arguments must be rejected on grounds similar to those set out in paragraphs 72 to 84 of the present judgment. 103 Moreover, in so far as the appellant criticises paragraphs 165, 166 and 173 of the judgment under appeal on the ground that the ECB did not take into account numerous items of evidence such as his statements and those of his family, it should be noted that, apart from those statements, to which the appellant refers in general terms, he does not specify what evidence he allegedly provided to the ECB or to the General Court which was not taken into account by the latter. Moreover, it appears that, by that argument, the appellant is merely repeating arguments which he had submitted to the General Court and is in fact seeking to obtain from the Court of Justice a fresh assessment of the facts and evidence and of the value attributed to them by the General Court, which is not subject to the Court of Justice’s review, except in the case of distortion, as is apparent from the case-law cited in paragraph 53 of the present judgment. The appellant does not invoke such a distortion in the context of the present ground of appeal. 104 Finally, if the appellant maintains that the General Court did not carry out the full review which it was required to carry out in accordance with the case-law cited in paragraph 160 of the judgment under appeal, it confines itself in its appeal to a general statement without specifying which points of that judgment are being criticised or developing legal arguments in that regard. In accordance with the case-law referred to in paragraph 25 of the present judgment, an appeal must state precisely the points criticised in the judgment the annulment of which is sought and the legal arguments which specifically support that application, failing which the plea in law concerned is inadmissible. It follows that such a statement must be rejected as inadmissible. 105 In the light of those considerations, the fifth ground of appeal must be rejected. 106 Since none of the grounds of appeal have been upheld, the appeal should be dismissed in its entirety. Costs 107 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to the procedure on an appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 108 Since the ECB has applied for costs and the appellant has been unsuccessful in his appeal, the appellant must be ordered to bear his own costs and to pay those incurred by the ECB. On those grounds, the Court (First Chamber) hereby: 1. Dismisses the appeal; 2. Orders DI to pay, in addition to his own costs, those incurred by the European Central Bank. Arabadjiev Xuereb von Danwitz Kumin Ziemele Delivered in open court in Luxembourg on 22 June 2023. A. Calot Escobar A. Arabadjiev Registrar President of the Chamber * Language of the case: English.